By Kibe Mungai

Kenya: Kenya is the biggest economy in East and Central Africa and by many indications has one of the largest and most educated middle class in Africa. 

This did not happen by accident or by the grace of gods because nation-states fail or succeed depending on the choices and actions of its leaders. 

For better or worse, the choices, decisions and actions of the successive top leaders in Kenya as well as the industry and work ethic of the Kenyan people underscore the fortunes and misfortunes of our country since independence.

Even if we discount the hype of Nyayo era about Kenya being a haven of peace in a sea of turmoil, the fact remains that throughout the post-colonial era Kenya has enjoyed greater stability and economic progress than other countries in this region of Africa. 

In broad terms we can confidently state that President Jomo Kenyatta’s unwavering choice of the capitalist system whilst our neighbours were experimenting with various shades of socialism and communism was vindicated with the collapse of socialism in 1991. 

Similarly, the democratic system of governance – imperfect as it has been for at least three decades – we have had since independence in 1963 has helped to stabilise politics and spare Kenya the multiple coup d’etats that many African countries have experienced until recently.  In short, Kenya is one of the few countries in Africa that the ideologies of free market democracy have thrived.

This preamble commends itself to my preliminary analysis of the Report of the Truth, Justice and Reconciliation Commission which seems to have paid scant, if any, regard to the historical circumstances in which the Kenyan State, its officials and public servants actually lived and operated in managing our statecraft between 1963 and 2008. 

Contested truths

Like many things human, truth comes in many shades, versions and manifestations and so any Report of the TJRC – however constituted – was bound to encounter these realities.  However, as a statutory body, TJRC was enjoined under Section 5 of the Truth, Justice and Reconciliation Act, 2008 to establish an accurate, complete and historical record of violations and abuses of human rights and economic rights inflicted on persons by the State, public institutions and holders of public office, both serving and retired, between December 12, 1963 and February 28, 2008 in order to promote justice, national unity, healing and reconciliation among the people of Kenya.

However, in apparent breach of its fundamental objective, in its report the TJRC peddles versions and shades of Truth that are either biased, skewed, simplistic, ignorant or grossly naive but certainly contested in many respects.  Three examples cast as questions should suffice. 

Is Kenya better or worse because Jomo Kenyatta won the ideological war of the 1960 that pitted him against Jaramogi Oginga Odinga?  In the wake of the 1982 coup d’etat in which Raila Odinga admits involvement, can we entirely blame the Nyayo government for the political crackdown and siege that ensued soon afterwards? 

Degodia clan

Was the Kenya Army heroic or villainous in carrying out Operation Okoa Maisha in Mount Elgon District against the Saboat Land Defence Forces (SLDF) which was clearly beyond the capacity of the police to suppress?

In so many instances the TJRC had to choose one version of truth over another and the consequences of this will certainly have a bearing on the implementation process and the realisation of the fundamental objective to promote peace, justice, national unity, healing and reconciliation among the people of Kenya. 

As a case in point, with regard to the Wagalla Massacre of 1982 in Wajir, the TJRC clearly chose the version of Truth preferred by the Degodia Clan to the shade of truth embraced by the Ajuran Clan which views the Wagalla atrocities as a necessary evil to protect them from genocidal attacks by the Degodia-backed militias.

Pitfalls of democracy

Given that the areas of contested truths in the TJRC Report are so many, this column can profitably deal with only Volume IIB which deals with Economic Marginalisation, Land and Grand Corruption.  The basic narrative of this volume is both simple and astonishing on account of its simplicity, naivete and ignorance of the commission it betrays about the working, benefits, pitfalls and consequences of the free market democracy Kenya has embraced since 1963. 

There are five elements of the version of Truth peddled by TJRC in volume IIB of its Report. 

Economic marginalisation

First, the Commission “takes the firm view that in post-independence Kenya, the seeds of economic marginalisation of certain regions were planted by the first formal economic blueprint, Sessional Paper No. 10 titled ‘African Socialism and Its Application to Socialism’ published in 1965.

Secondly, Jomo Kenyatta used State power to unjustly enrich the Kikuyu and help them dominate the levers of the economy which consequently marginalised Nyanza, Western, Northern Kenya and North Rift Communities. 

Thirdly, successive Kenya governments have used the law and state repression to economically discriminate and marginalise communities of North Eastern and Coast provinces. 

Fourthly, as a result of illegal acquisition of land, especially by the Kikuyu, the politically instigated clashes of 1991-2007 were inevitable.  Unbelievably to me, in paragraphs 416 to 418 of this volume, the commission traces the Njoro, Molo, Nandi, Narok, Coast and Uasin Gishu ethnic violence of 1991-2008 in which over 1,000 Kikuyus were killed and thousands displaced to illegal acquisition of land by influential individuals and groups from Central Province. 

Fifthly, the governments of Kenyatta, Moi and Mwai Kibaki promoted, condoned and engaged in grand corruption which enriched their cronies while condemning the majority of Kenyans to poverty and miserly that, in turn, aided and abetted gross violation of human rights.

Broadly speaking, the policies and actions of the Kenyan State and top public officials since 1963 have a bearing on the economic fortunes of individuals, communities and regions. 

British community

It is, however, untrue, exaggeration and simplistic to primarily attribute poverty, inequality and developmental imbalances in Kenya to the actions and decisions of the State.  Look at it this way: Contrary to the TJRC Report the dominant economic group in Kenya is the British followed by the Asian Community rather than the Kikuyu. 

Barely a fortnight ago, sections of the media reported that British companies have repatriated over Sh30 billion in dividends from Kenya.  Those reports attracted no comment by the Kenyan elites but you can imagine the fuss that could have arisen if in the same week President Kenyatta had appointed a Kikuyu, Embu or Meru as Cabinet Secretary for Internal Security. 

Mining companies

Similarly, as the TJRC Report attributes inequality and marginalisation to the top public appointments, the new Secretary of Mining Najib Balala is mulling over the proposal by foreign companies to reduce the percentage of Kenyan ownership of mining companies from 30 to 10 per cent.

The simple point I am trying to make is that in a free market democracy the economic fortunes of dominant groups is not dependent on possession of political power. 

Dubious version

In my considered view, therefore, the TJRC version of truth about economic marginalisation, land and corruption is dubious for ignoring the realities and consequences of the free market democracy embodied in our Constitution and other laws.

Given that Section 49 of the TJR Act, 2008 requires the government to implement the recommendations of the Commission, it is incumbent upon Government to ensure that the contested truths of the TJRC Report are fully interrogated, debated and agreed upon by all Kenyans as an accurate, complete and historical record of violations and abuses of human rights and economic rights. 

If the government fails to do this, then, I am afraid, the current version of truth the TJRC Report will not promote peace, justice, national unity, healing and reconciliation as intended by Parliament and the Kofi Annan-led Panel of Eminent African Personalities when the TJR Act was enacted in 2008.

No hyperbole

On reflection Vol IIB of the TJRC Report grossly libels named individuals and criminalises property ownership by the Kikuyus.  More fundamentally, this volume calls into question the legitimacy of the free market democracy in Kenya.  It will, therefore, be difficult to implement the TJRC Report without subverting the values of free market democracy that the Constitution of Kenya, 2010 presumes as given. 

This observation is no hyperbole.  Just imagine how the political atmosphere would be today if Raila Odinga had won the Presidency!

*The writer is a constitutional law practitioner based in Nairobi (kibemungai@yahoo.com)