Kenya: an illiberal backslide in the era of the ICC


In recent weeks I’ve had some interesting conversations, interviews and more formal sessions on the current political situation in Kenya. In the main, these have focused on the post-election domestic politics within the country and, inevitably, the way in which the current leadership is dealing with the ICC indictment of its President and VP.

The conversations I have had, or been a party to, have been with Kenyans (in the diaspora and in the country), academics, other assorted ‘experts’ and some policy-makers connected to UK government. I won’t, however, be quoting anyone in this piece, but rather putting together some broad points for further discussion.

One broad conclusion: this is a worrying time for anyone with an interest in Kenyan democracy, civil society, the media and human rights. We will be investigating these themes in greater depth over the next few weeks through interviews with Kenyan civil society activists, first up will be Muthoni Wanyeki and Maina Kiai.

A pivotal moment?

Kenya’s election in March 2013 was unarguably an important moment in the country’s recent history – an opportunity to prove that a real transition from the political violence of 2007/08 had been made. This gave the election a peculiarly a-political character in which the population saw politics in general, and elections specifically, as something to be afraid of, rather than a force through which society could be improved. Electing Uhuru Kenyatta, an ICC indictee, seems to me to have been the path of least resistance.

However, important as it was, it may not have been the pivotal moment in Kenya’s recent history, which was probably the election in 2002. This was the great optimistic moment of Kenya’s recent political history, which saw the end of the Moi era and the rejection of his chosen successor, Uhuru Kenyatta, in favour of political insider, Mwai Kibaki. However, during this era of high-optimism the opportunity for real reform was effectively missed and the continuation of ‘Business as Usual’ was writ large in the Anglo Leasing corruption scandal and the return to political violence in 07/08.

The months following the 2013 election have seen the political elite, in which the levers of power remain concentrated, come out in staunch defence of their leaders. A case in point is newly-appointed Cabinet Secretary of Foreign Affairs, Amina Mohamed, who has taken the attack to the ICC, marshalling support at the AU. Mohamed, a technocrat not a politician, owes her job to Uhuru in this US-style ‘cabinet of all the talents’, which may, in part, explain her (and others’) willingness to fight the (bad) fight for him.


Popular opinion

The 2013 elections succeeded in aligning grassroots sentiment with that of the leadership – particularly anti-Western, and specifically anti-British sentiment. Anti-western rhetoric is nothing new in Kenya, but we may be experiencing a new manifestation of it with a couple of additional factors feeding in.

First, Kenya’s colonial history is becoming more, not less, important. This is, in part, a consequence of the conclusion of the Mau Mau court cases which found Britain culpable for acts of torture and associated violence against suspected Mau Mau members. This has contributed to developing anti-western feeling, identifiable as much within Kenya’s ‘progressive’ urban elite – particularly those who voted for Kenyatta’s Jubilee Alliance – as with the country’s more obviously malleable poor majority. What this shows is that anti-westernism is ideological and not necessarily society-wide.

I would also suggest that, particularly for the middle classes, it is connected to the widespread belief in the ‘Africa Rising’ narrative. This has given the country’s economic winners greater self-confidence to assert independence from the former colonial powers and their allies, and also to portray China as an alternative economic partner and diplomatic friend.

An illiberal backslide

The Jubilee victory, immediately followed by a civil society challenge against the election result, and the spectre of the ICC indictments, has created something of a bunker mentality amongst the Kenyan leadership. This has been expressed in a number of ways and two pieces of legislation are worth noting.

First, the recently passed Media and Communications Bill (waived through by an almost empty National Assembly) effectively threatens the media with sanctions if they do not behave ‘responsibly’- making politicians the arbiters of what the press can or cannot say or do. Following an angry reaction from civil society, Kenyatta promised that he would not actually sign the bill into law, but the intent from Jubilee is clear.

Second, the Public Benefits Organisations Act (soon to be tabled) seeks to limit the amount Kenyan civil society organisations can be foreign-funded to 15 percent of total budget. This is a clear attempt to strengthen the surprisingly pervasive notion that high-profile civil society activists, such as John Githongo, Maina Kiai, Gladwell Otieno, amongst others, are in the pay of The West.

Kiai writes in The Daily Nation: “No regime in Kenya’s history has moved as quickly to restrict democratic space as the present one.”

Political ethnicity persists

Whilst the 2013 election were not overtly violent, this does not mean that Kenya’s problem of ethnic politics has been solved. As I have written before, the key dynamic in the 2013 election was that the ethnic alliance between Kikuyu and Kalenjin effectively neutralised the most dangerous ethnic fault-line in the country – the mixed Rift Valley communities where failure to carry out land reform was always a time-bomb.

On land reform, this remains a key dynamic within the Kikuyu-Kalenjin alliance at the top of government. At some point William Ruto, in order to satisfy his Kalenjin supporters, will have to do something about it in the Rift Valley. However, with Uhuru Kenyatta – a representative of old Kikuyu land-owing money – in power, this would appear to be impossible. In short, this political marriage of convenience may have very shaky foundations.

Negative ethnicity also persists at a lower level in everyday life. This means it can be easily exacerbated within local conflict or boundary areas. It should also be noted that whilst the UhuRuto election decreased Kikuyu-Kalenjin antagonism, it served to increase it between Luo and Kalenjin groups.

No clue what to do

In the face of the macho-posturing coming from the Kenyatta government it is unclear what currently constitutes British policy towards Kenya. The difficulty Britain has is combining different diplomatic and strategic necessities. This includes consideration of the following (but not necessarily in this order):

The UK ‘Prosperity Agenda’ –open markets and growth (including the success of British commercial interests).
Security imperatives ie Somalia and international terrorism.
The UK’s commitment to the ICC.
Human rights and civil society.
The UK’s international development agenda.
If you want business-friendly corporate Kenya ie bullet point 1, then Uhuru Kenyatta is your man. The post-election calls to ‘Move On’ are linked with the supposed ‘de-risking’ of the Kenyan economy – 2013 ‘proved’ that Kenya had moved beyond the age of political violence and, irrespective of who was elected, was open to international business to exploit the gains from its hydrocarbons, future tech city and infrastructure projects.

Bullet points 2 and 3 are the real problems. The Kenyatta government is quite clearly regressive on human rights and civil society, with a self-interested attitude towards the ICC. On these points, for Britain, Kenyatta is the worst possible leader they could have been landed with.

What isn’t entirely clear is which of these options the UK government prefers to pursue and, also, what levers they have at their disposal (in conjunction with other donors) to pursue this. What are the UK’s ‘red lines’ for interaction with Kenyatta’s government if he decides not to go to The Hague? And what constitutes essential contact


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