Saturday, April 06, 2013

Judging Chief Justice Willy Mutunga in Context




Appreciating a Comrade and a Mentor

By Onyango Oloo

It has been exactly one week since that stunning 6-0 verdict by the Supreme Court sealed the ascendancy of Uhuru Kenya to the apex of the Kenyan neo-colonial state.

At the time that the five minute shocker was beamed to millions of people across East and Central Africa and streamed online to tens of thousands more around the world, I was among the hundreds of people huddled over and clutching our various gadgets-lap tops, digital cameras, recorders-in the adjacent Media Centre.  I had been reflecting on the ramifications of this ruling all day, ever since I had arrived at the precincts opposite the Reinsurance Plaza at around 8:30 am.  

Immediately the green robed lords and her ladyship made a hasty exit from the court, after delivering that collective slap on the Kenyan people, I started pounding away at my keyboard, giving birth and delivering my upcoming blog almost instantaneously; making some cyberskeptics, questioning the alacrity with which I churned  out the essay,wonder loudly whether I had the digital on tap all along. 

Nothing could have prepared me and most Kenyans in my progressive circles for that unlikely dénoûment to what was no doubt, a gripping post-election judicial soap opera.

Even now, most of patriotic and democratic Kenya is still in denial, not unlike those unfortunate road accident casualties who keep congratulating themselves for surviving the grisly head on crash-not realizing unfortunately, that the head they are speaking from was decapitated from their torsos five minutes previously and that they are muttering their dying words.

Inspired by that national sense of betrayal and the subsequent, persistent denial of the reality and ramifications of that Supreme Court decision, there is a crescendo of rumours and speculations imbued with a mixture of anger, fear, hope and anguish.

In the classic Kenyan tradition, every urban legend, trope,  every tall tale and every single rumour is by definition, always “CONFIRMED” and “VERIFIED” by allegedly IMPECCABLE sources-whether these are touted to be the Supreme Court Justices themselves, State House insiders, CORD strategists or even  Jubilee moles.

Here is a sample of the sizzling stories doing the rounds in Nairobi and elsewhere in this conflicted and tortured republic:

1.       “The decision was scripted by the NSIS and thrust to the Chief Justice to read at gun point”;

2.       “Kibaki had already handed power to the military top brass a week earlier and the generals had vowed never to serve under  Raila Odinga who had once attempted a coup de tat”;

3.       “Each of the Supreme Court judges was given one billion shillings to rule in Uhuru’s favour.  In fact, Justice Wanjala arrived at his residence around 8:30-9:00 pm to find four men waiting for him in his living room. One of them  opened a huge suitcase stuffed with crisp 1,000 shillings and tersely  instructed him to do what he knew was right for our beloved motherland”;

4.       “Dr. Willy Mutunga called the Prime Minister and spoke to him for over 40 minutes explaining to the CORD flag bearer  how the forces of impunity had held him hostage; Raila understood the dilemma his friend and comrade was grappling with”;

5.       “The judges were split 3-3 (with Willy, Smokin’ and Ibrahim on one side). They opted to project  a united front as the Supreme Court, hence the 6-0 unanimous announcement”;

6.       “Obama, Cameron and Merkel had themselves urged Kenyan civil society juggernauts like Gladwell  Otieno, Maina Kiai, Muthoni Wanyeki and John Githongo not to worry about Uhuru becoming President because within two months the ICC duo would be securely locked up at the Hague”;

7.       Etc. etc. etc.;

Is there ANY truth to the above rumours? 

SOME truth? 

Completely baseless fabrications?

Who knows?

Kenya is a weird and surreal territory.

Some of the giddiest and wildest urban legends often turn out to have more than a kernel of truth.

On the other hand, perhaps the TRUTH is in fact, STRANGER THAN FICTION.

Perhaps we Kenyans should treat as LITERAL, this verbatim rendition from the Supreme Court:

1. After extensive deliberations, we are happy to announce the Supreme Court has reached a unanimous decision on all the four issues that fell for determination in presidential election Petition No. 3, 4 and 5 as consolidated.

2. The following is the unanimous decision of the court:

(i) As to whether the presidential election held on March 4th 2013, was conducted in a free, fair, transparent and credible manner, in compliance with the provisions of the Constitution and all relevant provisions of the law; it is the decision of the court that the said elections were indeed conducted in compliance with the Constitution and the law.

(ii) As to whether the 3rd and 4th Respondents were validly elected and declared as President elect and Deputy President elect of the Republic of Kenya respectively, by the Second Respondent in the presidential elections held on the 4th March 2013; it is the decision of the court that the 3rd and 4th respondents were validly elected.

(iii) As to whether the rejected votes ought to have been included in determining the final tally of votes in favour of each of the Presidential candidate by the 2nd Respondent; it is the decision of the court that such rejected votes ought not to have been included in calculating the final tallies in favour of each presidential candidate.

(iv) As to what consequential declarations, orders and reliefs, that this honorable court ought to grant based on the above determinations, the following are the orders of the Court:

a. Petition No.5 of the consolidated petitions is hereby dismissed.
b. Petition No. 4 of the consolidated petitions is hereby dismissed.
c. As to Petition No. 3 of the consolidated petitions, the prayer by the Petitioners seeking a declaration of recomputation of percentages by the 2nd Respondent is declined as the court as no jurisdiction.
d. Regarding orders as to costs, the Court orders that each party bears his/her/it’s own costs.

3. The detailed judgement containing the reasons for decision of the Court will be issued within two weeks from today.
To tens of millions of Kenyans (including many who DID NOT VOTE AT ALL) the above words still ring hollow, fake and contrived.
That is why half of the country is shuffling its feet, shrugging its collective shoulders and sighing heavily, muttering:


“OK, let’s wait for that detailed written ruling that they promised to furnish us with in two weeks.”

To give an inkling of what most progressive and democratic minded Kenyans are thinking at the moment, contemplate this  Open Letter to Chief Justice Dr. Willy Mutunga, penned by Gideon Wafula and carried in the April 4,2013 issue of the online Pambazuka social justice newsletter which reaches millions around the world:

Neither Enemy nor Friend of the Supreme Court
Dear CJ Mutunga,

This will disappoint you but the truth is that I am not a learned friend. If I were a learned friend, I would wait for your ruling to question its legal bases. Being a simple Kenyan who is tired of being referred to us ‘Wanjiku’, I want to know why you upheld the Wanjiku Tyranny? In asking these questions, dear CJ, just like you recently tweeted, I am neither a friend nor enemy of the Supreme Court.

In five minutes, and with a dismissive tone, you brushed aside all our hopes for a truthful moment. We did not care that the ruling goes either way, we cared more that the basis of the ruling be sound enough to give us reason to believe there is an institution we can count on. Currently, we are not very sure whether the Supreme Court has the interest of Nafula, Muthini, Atieno and Fatuma at heart. It is possible that you had the interests of Wanjiku at heart, but did the interests of Wanjiku necessarily mean the interests of Anyango being sacrificed at the altar of judicial expediency? Your ruling was final and it legitimised the Uhuruto presidency but so that this presidency gains popular legitimacy, please address yourself to the following concerns as you prepare your detailed ruling.

TECHINICALITIES VS. SUBSTANCE

You dismissed AFRICOG’s application for the principal register, CORD’s affidavit and CORD’s application for an audit of the electronic voting system on a technicality basis. Will the technicality dismissal suffice as final or will you provide direction as to how substantive issues raised in relation to the above mentioned are to be addressed?

CONDUCT OF THE INDEPENDENT ELECTORAL AND BOUNDARIES COMMISSION

Dear Lord (I cringe as I call you Lord), in your dismissal of applications on the basis of there being no time you did well to keep within set timelines. Good enough, but you notice there is more than just timelines in the quest for justice. I hope it does not escape your scrutiny that IEBC was adversarial rather than facilitative of justice. During the tallying process, it did not escape the public eye that IEBC chief executive James Oswago seemed too busy to be seen anywhere. The IEBC chair Isaak Hassan seemed dismissive from my subjective vantage point. There were claims of some agents being thrown out and the institution refusing to respond to questions. Immediately after announcing the results, they went ballistic to the extent of branding petitioners as sour losers. They did not willingly provide requested documents and insisted that we needed to accept and move on rather than remain independent arbitrators. Will your ruling address itself to the failings of the IEBC?

CONDUCT OF LEARNED FRIENDS

I was dismayed to watch one strong lynch man in the name of learned friend Ahmednasir Abdullahi who not only cajoled but actually demeaned the person of Prime Minister Raila Odinga, one of the petitioners. I heard him describe the Supreme Court as “crawling” and his effort to portray Raila as a sour looser just baffled. Would you help me understand whether it is just for learned friends to come before your court and act so selfishly? How would you allow such men to rub salt into wounds like the shambolic 1997 elections, the blatantly stolen 2007 elections? I wonder what it would have been like if petitioners tried to show the government link between those who stole elections in 2007 and those who may have facilitated unacceptable anomalies in the 2013 election? I hope you give direction in terms of whether such derogatory descriptions of our leaders under the glare of cameras shall be condoned in the highest judicial office.

REJECTED VOTES

When you admitted the Attorney General Prof Githu Muigai as amicus curiae in the proceedings, everyone knew you had admitted an amicus Uhuru, one of the respondents. He did not disappoint because interestingly, there was a petition already to inform the arguments of this great amicus. While their arguments did hold water, I just hope your ruling will not be based on the idea of rejected votes not being counted. This is the only petition you upheld and I am of the opinion, it may just have been the justifying principle for the unanimous vote. Going forward, would you give direction on the high number of rejected votes and whether having the presidential and parliamentary vote on the same day makes sense?

ANOMALIES

To the small mind of not so learned friends like me and Nafula and Anyango, there were enough anomalies in the registration, voting process and tallying process. The submissions in the courts showed that there were just too many registers that the IEBC could rely on. We heard of valid register, principal register, green books, special register, etc. What is your definitive say on the issue of registers and IEBC’s handling of registers?

There seems to have been discrepancies between figures announced at polling stations and figures accepted by the presidential returning officer, IEBC’s Hassan. How did you resolve these discrepancies as to declare the election as having been free and fair despite the anomalies? Did your ‘Suo Moto’ re-tallying not raise enough questions than answers? Why did you go for arguments that explain anomalies away rather than the questions that bring integrity into focus?

Should you have found the anomalies as not substantial enough, would the votes lost due to errors of commission or omission have been enough to trigger a run-off? Therefore, going into the future, should IEBC be allowed to round off numbers by addition and subtraction (‘human errors by young clerks’, according to Uhuru’s lawyer Fred Ngatia) since this can be justified by the margin between leader and runners-up?

SANCTITY OF THE VOTE

In your final ruling, Supreme Court Lords, help us understand whether it matters that a Kenyan votes or not. In 2007, Kenyans voted in droves and institutional failure ensured that, hypocritically, we could not know who won. In 2013 we voted and while it is clear that a clear mandate was manipulated, again your jurisprudence justified a given regime. My question would be, between Fatuma, Muthini, Nafula, Atieno and Wanjiku, whose vote holds more sway over the other? If you should accept that each vote is the sacred will of a Kenyan, where is the justice in the doctrine of substantial irregularity that many may be so willing to propound? Your ruling legitimized the Jubilee government; however, did the votes legitimize this government?

* Gideon Wafula blogs at: http://wafulagiddy.blogspot.com

Today, I prefer to take a different path from Wafula’s.

For two reasons.

Last year, at the height of the controversy in the launching of my friend Miguna’s Peeling Back the Mask, I rushed to support the author when he expressed his disappointment when Willy Mutunga declined the invitation to be the chief guest.

Willy, who has known me for over thirty years just sent me a one line admonishment wondering why I did not bother to also seek his side of the story.

In self-criticism therefore, I will withhold any direct critique of Willy as an individual in regards to the Supreme Court decision until such time I have heard from him directly.

Secondly, I think that any criticism of Willy Mutunga must  be placed in context.

In ideological, historical and political context that is.

I am asking, before we judge Willy, do we know him?

How well do we know him?

So for the benefit of those Kenyans and friends of Kenya whose knowledge of Dr. Willy Mutunga is limited to the fact that Dr. Mutunga currently serves as the Chief Justice and President of the Supreme Court, I want to bring to life the other Willy, the comrade we have known and interacted with for decades upon decades.

To begin at the beginning:

Who is Willy Mutunga?

The factual and historical contours of his biography are sketched out in a Wikipedia article from which we draw this excerpt: 

Background

Mutunga's father, Mzee Mutunga Mbiti, worked as a tailor in the small town of Kilonzo, Kitui County, Nzambani District. He died in 1985. His mother, Mbesa Mutunga, died in 1982.

Mutunga attended Ithookwe Primary School before proceeding to Kitui School for his Kenya Certificate of Education exams. He was the first student to score six points in the exams (an "A" in all subjects), earning him a place at the Strathmore College for his "A" levels. Mutunga received a Bachelor of Laws degree from the University of Nairobi in the 1970s and a Master of Laws from the University of Dar es Salaam. Mutunga joined the law faculty at the University of Nairobi as a lecturer, becoming the first indigenous Kenyan to teach constitutional law at the university level. In the late 1980s, he received his Doctorate of Laws from the Osgoode Hall Law School at York University in Toronto.
On 13 May 2011, the Judicial Service Commission of Kenya recommended to President Mwai Kibaki that he appoint Mutunga to be chief justice of Kenya. After consulting with Prime Minister Raila Odinga, Kibaki appointed Mutunga, and the National Assembly of Kenya approved the appointment on 16 June 2011. He was sworn into office on 20 June 2011. Because of Kenya's mandatory retirement age of 70, Mutunga must leave office no later than 16 June 2017.

Roots of radical activism

More than two decades of writings, particularly in the media, reveal that Mutunga's activism was inspired by several nationalists.[citation needed] Among these were the anti-colonial fighter Dedan Kimathi, Kenyan activist Pio Gama Pinto, and Guinea Bissau's intellectual nationalist Amílcar Cabral.

As a law lecturer at the University of Nairobi in the 1970s and 1980s, Mutunga's activism was associated with a small but determined group of academics who identified with Marxist / Socialist ideologies, including Ngũgĩ wa Thiong'o, Al-Amin Mazrui, Kamonji Wachira, and Maina wa Kinyatti. On 19 April 1972, this group formed the University Staff Union (USU). Mutunga became the general secretary of USU in 1979, months after Daniel arap Moi succeeded Jomo Kenyatta as president and began tightening his grip on power. Mutunga immediately rallied other USU officials around a campaign for the reinstatement of Prof. Ngũgĩ wa Thiong'o to his former job of teaching English and Literature at the University of Nairobi. Ngũgĩ was incarcerated by the Kenyatta government in December 1977, and although he was released in December 1978, he never returned to his job. Police arrested Mutunga on 10 June 1980, and USU was banned on 19 July 1980.

Mutunga's arrest threw light on the activities of a seemingly burgeoning Kenyan underground in the dark 1980s. He was accused of being a member of the underground group known as the December Twelve Movement and of participating in the production of the movement's publication, Pambana. The police alleged they had found stamps used for mailing Pambana after searching Mutunga's house. On 12 June 1982, he was charged in court of being in possession of a "seditious" leaflet bearing the headings "J. M. Solidarity Day" and "Don't Be Fooled: Reject these Nyayos". On 29 July 1982, he was detained, just three days before the 1 August 1982 abortive coup by the Air Force. He was also dismissed from his University of Nairobi job.
Activities while in exile in Canada

Mutunga went into exile in Canada after his release on 20 October 1983. There, he joined a group of exiled Kenyan student and intellectual activists and obtained his Doctorate of Law from Osgoode Hall Law School in Toronto. While pursuing his doctorate, Mutunga cooperated with other Kenyan exiles to launch the Kenya Human Rights Commission (KHRC) to further the struggle for socio-economic justice and a democratic constitutional order. Among these exiles were Kiraitu Murungi, then a law lecturer and pursuing his masters at Harvard Law School; and Makau W. Mutua and Maina Kiai, both United States-based anti-Moi activists.

As the cold war ended, Mutunga, like many radical African academics, made the neoliberal turn and began reconfiguring politics around a re-engineered liberal civil society.

Upon Kenya's return to multi-party democracy in 1991, Mutunga and other exiles began returning home. In 1992, the KHRC itself was relocated back to Kenya and registered in March 1994, starting its operations from the Chambers of Kamau Kuria and Kiraitu Murungi Advocates. It gave legal cover to an array of nongovernmental organizations in civil society that could not secure registration from the Moi government. It also served as the think tank for Kenya's pro-democracy movement.

Reforming civil society and the constitution

In 1992, Mutunga joined the ranks of the country's pro-democracy Young Turks, which included, among others, Paul Muite, James Orengo, Kiraitu Murungi, Gitobu Imanyara, and Raila Odinga.

Most of the Young Turks drifted to active politics following the formation of the Forum for the Restoration of Democracy - Kenya in 1992 as an omnibus political movement. Mutunga, however, became the chairman of the non-governmental Kenya Human Rights Commission (KHRC), which he later also served as executive director. The KHRC supported the formation and existence of organizations such as Kituo cha Sheria and the Public Law Institute.

Mutunga also retained his global intellectual networks. He served on the boards of various organisations, including the Buffalo Human Rights Center at the University at Buffalo Law School, the State University of New York.

Mutunga served as vice chairman of the Law Society of Kenya (LSK) from 1991 to 1993 and chairman from 1993 to 1995. During his tenure as vice chairman and chairman, Mutunga helped launch the LSK into activist politics, making it appear as a more formidable opposition than the splintering opposition parties.

Mutunga's concept of "constitution-making from the middle" also got its practical expression during this period. Supported by a Ford Foundation grant, LSK teamed with the KHRC and the Kenya chapter of the International Commission of Jurists to produce a draft of a new constitution. This project was aimed at showing that constitutional reforms were possible despite resistance by the Daniel arap Moi regime. On 6 January 1995, the constitutional caucus was renamed the Citizens' Coalition for Constitutional Change (or 4Cs) with Mutunga and Christopher Mulei as its face. The 4Cs put together a coalition of political parties and civic groups that planned for a national convention on the constitution. This initiative resulted in the formation in April 1997 of the National Constituent Assembly and its executive wing, the National Convention Executive Council (NCEC) with former dean of law, Professor Kivutha Kibwana, as its spokesperson. The NCEC organised constitution reform rallies in May, July, and August 1997. Moi responded by arguing that the government could not negotiate about constitutional reform with the civil sector, including the NCEC, that consisted of people who had no elective mandate. Members of the National Assembly bought the argument and abandoned the NCEC in favor of the newly formed Inter-Parties' Parliamentary Group (IPPG), which overtook the NCEC's initiative and allowed Moi to take control of the reform process and then emasculate it. The IPPG shepherded minimal reforms before the 1997 elections and the enactment of the Constitution of Kenya Review Commission Act in 1997. The NCEC, however, condemned the reforms as greatly flawed and not addressing the basic problems that caused the constitutional crisis.

Coalition building and division

Mutunga has been hailed as "an excellent negotiator". He convened the breakfast meetings of the then opposition stalwarts, Mwai Kibaki, Charity Ngilu, and Michael Wamalwa, to forge a common alliance ahead of the 2002 elections. The unity talks culminated in the creation of the National Alliance for Change as a single coalition of fourteen parties, later renamed the National Alliance Party of Kenya. The Alliance merged with defectors from President Daniel arap Moi's Kenya African National Union and joined the Liberal Democratic Party (LDP) to form the National Alliance of Rainbow Coalition (NARC). Mutunga declined an offer to serve as the chairperson of NARC, saying that his main interest was to unite the opposition and not to join active politics. The NARC won the 2002 elections. After the elections, Mutunga was one of the senior counsels appointed by President Kibaki in 2003 under Section 17 of the Advocates Act.

The NARC became the litmus gauge for Mutunga's political neutrality, which lasted as long as the coalition elite stayed united by the post-election euphoria. As soon as power wrangles between the Kibaki and Raila Odinga factions of the NARC set in after 2002, Mutunga's relations with the Kibaki administration grew frosty. On 8 April 2003, he turned down an appointment by President Kibaki to the university council of the Jomo Kenyatta University of Agriculture and Technology, saying that he lacked the right qualifications for the position and was not consulted before the appointment.

Like many left-wing academics, Mutunga was an admirer of Jaramogi Oginga Odinga. After 2003, he drifted ideologically to the portion of the NARC that identified with Raila Odinga's LDP wing. In a 2003 interview with Raila's biographer, Babafemi Badejo, Mutunga lauded Odinga as "an aggressive and astute politician" whose role in the 1997 National Convention Executive Council rallies showed him as a "great mobilizer and organizer". His only misgiving was Odinga's contradictory role as a "nationalist and a patriot" on the one hand and "an ethnic baron" who "uses both nationalist and ethnic cards for the advancement of his political project". But he exculpated Odinga from this contradiction arguing that he "has always struggled against dictatorship and oppression and has been for social justice". Ahead of the divisive 2007 presidential campaign, Mutunga threw his weight behind Odinga, saying "I am convinced Kenya's transition needs Raila as the president of this country".

Move to the foreign donor sector

In 2004, as the intra-elite rivalry in the National Alliance of Rainbow Coalition and fissures over the constitutional negotiations turned perilous ahead of the 2005 referendum, Mutunga joined the Ford Foundation in Nairobi as a human rights programme officer. In 2009, he became the executive director overseeing all grant making in Eastern Africa, mainly focusing on human rights and social justice and protection of women's rights.

Mutunga's decision to leave Kenya's declining civil society for a foreign foundation operating in Kenya dented his pro-reform credentials in the eyes of some.[citation needed] Foreign bilateral donor countries, such as the United States and the United Kingdom, had long been accused of having double-standards, supporting despotism, and responding inadequately to pre- and post-presidential election violence, government corruption, ethnic tensions, and presidential authoritarianism.

Based at least in part on a December 2008 interview with Mutunga, Canadian scholar Stephen Brown said, "Donors [defined by Brown as western governments and their missions in Kenya, including both diplomatic and aid representatives, but not specifically including private entities] might not actually mind the 'imperial' powers of the presidency, as it makes for a strong interlocutor. For instance, they would prefer not to renegotiate access to military bases with parliament."
                                                                                                                                                                                
When he was participating in the donor sector, Mutunga is said to have grown ideologically intolerant, tagging and parodying those of his former colleagues in civil society and the academy aligned to the Kibaki government as "traitors".

At a July 2010 meeting of the Bunge La Mwananchi movement, one participant alleged that Mutunga had "intruded into the movement's affairs eroding the ideals set by the founders and causing needless friction and infighting amongst the rank and file". Another said that Mutunga had been claiming falsely that the Ford Foundation was working with the movement and that Mutunga had planned a counter-demonstration to support certain corrupt individuals when the movement was planning to move against them.

Some Christian Kenyans accused the Ford Foundation of funding, while Mutunga worked for the foundation, abortion rights advocacy organizations and liberal sex education groups worldwide, including among others the International Planned Parenthood Federation, the Planned Parenthood Federation of America, and the Sexuality Information and Education Council of the United States.
[ I have to point out that some of the things in the Wikipedia article are NOT factually accurate- for example the year he left detention. Also the big about the so called "neo-liberal turn" shows a bit of semantic confusion. "Neo-liberal"as used in political parlance is the EXACT opposite of "liberal'. A neoliberal is essentially a FASCIST!]

Clearly from the above, Willy Mutunga is a patriotic Kenyan with a long history of being  on the Left. 

Some people may be surprised that for several years he was among the most read newspaper columnist with a regular piece in the mass circulation Nation appearing every Saturday.

Only it was not under his real name, Willy Mutunga.

According to the same Wikipedia article I have just cited-

As "Cabral Pinto", the name of a columnist with the Daily Nation newspapers that Mutunga used as his pen-name since 2006 to avoid conflict of interest as Ford Foundation senior manager, his articles were well known for defending gay rights and "Africanizing homosexuality" in Kenya and the region.

Cabral Pinto aka Willy Mutunga wrote about  a whole range of topics beyond sexual orientation. Let  us sample a few.

Here is what he thought of the Presidential contenders in the just concluded contest, in a piece he wrote ALMOST  FOUR YEARS BEFORE on Saturday,  January 10, 2009:

It seems as if the media have decided for us the choices we have for president come the 2012 elections.

The media have apparently decided that Prime Minister Raila Odinga, Agriculture minister William Ruto, Vice-President Kalonzo Musyoka, Deputy Prime Minister Mudavadi, Internal Security minister George Saitoti, Justice minister Martha Karua and the other Deputy Prime Minister Uhuru Kenyatta be in the race.

All these potential presidents come from five communities that control over 70 per cent of the political vote. Political alliances have been built around these communities and our politics ethnicised.

It is therefore easy to understand why most Kenyans still question why Mr Odinga lost the presidential elections in 2007, controlling as he did the Luhya, the Kalenjin and the Luo votes, as well as having a good following in Nairobi, northern Kenya and the Coast. Ethnicised politics works on the basis of simple ethnic arithmetic.

What seems to be clear about the media’s imposition of potential presidents for 2012 is lack of critical evaluation of these six Kenyans. In what way will any of them change the status quo in Kenya?

Are we saying that the country has no better vision than being saddled with the destructive vision of the Kanu-Kenyatta-Moi-Kibaki imperial dictatorships? Why is the Press not analysing their political track records?

Have we ruled out a third term for President Kibaki? We should not be as politically naïve as to imagine that the era of life presidents in East Africa, the Museveni type, is dead and buried.

One of the critical issues on the impending presidential election is that the media do not discuss what pertains to the ideology, values, vision and politics of whoever should be president.

It is not difficult for us to set political commandments for the next president. Obviously, Kenyans want an incorruptible president? Should we not shun potential presidents who have been suspected of corruption, murder, rape, land-grabbing and divisive politics, as well as who rarely discusses national issues?

Why should we have a president who, having been a politician, has shown that she or he is totally clueless about how Kenya should develop?

Why, indeed, should we elect a politician who has displayed dictatorial tendencies and is totally anti-people?

This is not to mean we are looking for political angels because they do not exist, but we can come up with a check-list that constitutes the political commandments we can base our voting on. And the commandments apply to all political leaders, not simply the presidential candidates.

To be able to implement the commandments on the potential president we need to take head on the divisive evils of race, ethnicity, religion, gender, generation, clan and region.
We need to focus on issues that bedevil Kenya — how do we end gender inequalities and inequities? How do we give jobs to the youth? How do we eradicate poverty and preventable diseases as well as give quality education to our children?

How do we deal with the land issue, which is the basis of our inequalities and chronic poverty? How do we struggle for our sovereignty in the age of exploiting and dominating empires in which some die and others are born?

How do we de-personalise our institutions? How do we craft a democratic constitution that is about equitable sharing of resources and political power among the various communities?

Why have the media not been provocative, proactive and investigative on the issue of potential presidents? If Kenyans, as the recent polls show, trust Mr Maina Kiai, Prof Wangari Maathai, Archbishop Ndingi mwana a’Nzeki, Ms Muthoni Wanyeki and others, why are they not in the media’s books of potential presidents?

Do the media not want to know if, for example, Mr John Githongo, Dr Makau Mutua, Ms Njeri Kabeberi, Ms Gladwell Otieno, Ms Betty Murungi, Ms Zarina Patel, Ms Muthoni Wanyeki, Mr Kepta Ombati, Mr Onyango Oloo, Mr Titus Naikuni, Mr Kitur arap Tirop, Dr Richard Leakey, Prof Yash Pal Ghai, Mr Alamin Mazrui and many others are potential presidents?

Is it not the duty of the media to suggest alternative political leadership?

Kenya needs an alternative leadership and a leader. The leadership will comprise Kenyans who have a vision that can get the country in a developmental trajectory based on a pro-people agenda and fierce patriotism.


We need to focus on the merger of talents in the alternative leadership rather than in the qualities of one leader. That we may not have our Moses, Gandhi or Mandela is no major setback.

His February 9, 2008 column was on the question of traitors and heroes: 

THESE KENYANS AREN'T TRAITORS, THEY ARE THE PEOPLE'S HEROES

One of Kenya's heroes is politician Bildad Kaggia. Breaking ranks with Kanu and President Jomo Kenyatta over the party's land policies, Mr Kaggia teamed up with Jaramogi Oginga Odinga to form the Kenya People's Union, the most radical party in Kenya's political history.

Mr Kaggia was not only jailed on trumped-up charges, but, he was subjected to death threats and almost assassinated in Thika because of this heroic move.

In the eyes of Mzee Kenyatta and ethnic chauvinists around him, Mr Kaggia was a traitor to the Kikuyu cause. But he never relented or gave up, and today he remains a role model for subverting negative ethnicity. He taught us never to ethnicise injustice, theft, half-truths and falsehoods, evil, ideology, politics, corruption or poverty. In his opinion, this ethnicisation is precisely what Mzee Kenyatta expected of him.

What ethnic cause has Ms Njeri Kabeberi, Ms Muthoni Wanyeki, Ms Gladwell Otieno, Mr Maina Kiai, Mr David Ndii, Mr Nahashon Gacheke, Mr Ndung'u Wainaina and Mr James Maina betrayed? Is it the same ethnic cause that Mr John Githongo is supposed to have betrayed? Is calling for peace with truth and justice a betrayal of this ethnic cause? Have the interests of the Kikuyu elite become the interests of the Kikuyu community?

As far as it is known, the Kikuyu elite have not shared their economic largesse among the poor Kikuyu. The Kikuyu daughters and sons mentioned above and others are better leaders and representatives of the Kikuyu community than the Kikuyu elite. They have witnessed the community's collective interests in co-existence with other communities without ethnic jingoism, arrogance and chauvinism. They have followed the beaten path that Mr Kaggia boldly followed.

Another of Kenya's heroes is Jaramogi Oginga Odinga. The Kenyatta and Moi regimes kept Jaramogi in a cruel political wilderness. Yet he never organised the harassment of Mr William Odongo Omamo, Mr Okiki Amayo, Mr Dalmas Otieno and other Kanu followers in Nyanza who, along with the two presidents, were part of Jaramogi's persecution.

What ethnic causes have Mr David Habil Odongo and Ms Grace Wangui betrayed by getting married and investing in Classic Guest House of Dunga in Kisumu?

WHAT ETHNIC CAUSE DID THE PNU councillors in Migori breach and betray? Why are they on the run for fear for their lives? Who decided that Luos support only Mr Odinga or face the community's wrath? Should the Luo elite decide whom members of the community should marry?

Who in Luoland is speaking out against this type of negative ethnicity?

When are we going to hear Mr Dan Okello, Mr Oduor Ong'wen, Mr Edward Oyugi and Prof Anyang' Nyong'o speak out against the negative dictates of the Luo elite in the garb of collective ethnic good?

Thankfully, we have heard Mr Onyango Oloo's voice.

In Rift Valley Province, we need to hear the voices of Mr Tirop arap Kitur, Mr Donald Kipkorir, Mr David Koros, Bishop Korir and others against the Kalenjin elite's ethnic jingoism.

President Moi set the ball rolling when he condoned the illegal eviction of non-Kalenjins from the region in 1990, 1991 and 1998. Now the Kalenjin elite are telling the poor Kalenjins that they will get their land back once the non-Kalenjins living in the Rift Valley are ethnically cleansed.

But the Kalenjin elite are saying nothing about the huge tracts of land they and other multiracial and multi-ethnic elite own. The Kalenjin elite are saying nothing about the land in Rift Valley owned by foreign companies and individuals. While land grievance in Kenya, Rift Valley in particular, must be addressed, surely, it is no lasting solution to the matter and no reason for the Kalenjin elite to pit the poor residents against the poor from the other communities by engineering ethnic cleansing.

It is no reason for the Kikuyu elite to sponsor reprisal attacks by poor Kikuyus on poor non-Kikuyus in Rift Valley and other areas.

Kenya needs also to hear more voices of the racial and ethnic minorities in the country. Prof Ali Mazrui has been patriotic in his interventions on this political crisis. Mr Abdulahi Ahmednasir has made useful contributions in press articles. Ms Zarina Patel and Mr Zahid Rajan have taken a patriotic political stand on the crisis. Mr Harun Ndubi has joined other Kenyans in seeking a solution to the turmoil.

It is to the credit of the Kenyan South Asians, the Swahili, the Abagusii and the Somali that all the great Kenyans mentioned above have not been called traitors to the causes of their communities, and their lives have not been threatened. The Kenyan Europeans have their leaders in Mr John Sutton, Mr Robert Shaw, Dr David Western and Dr Richard Leakey, among others. They, too, must speak out as they continue to do great work in various fields among European and African communities.

If we want to save Kenya, we must stop believing that it is only President Kibaki and Mr Odinga who will or must save the count ry. It is about time Kenyans told the leaders what they want before the strong foreign interests in the country decide what is good for our motherland.

Interesting tit bits from the above article:  

Gladwell Otieno, Zahid Rajan, Harun Ndubi and Abdulahi Ahmednasir all appeared before Willy in the recent Supreme Court case. It would appear that the Chief Justice also follows the discussions on the Jukwaa  online discussion board.

Bearing in mind that way back in 1982 when Willy Mutunga was picked up and charged with sedition in court before being detained without trial, he had been accused of having leaflets titled J. M. Solidarity Day and Don't Be Fooled: Reject these Nyayos, It is not surprising therefore to find that  he reveres the late J.M. Kariuki as can be seen from this tribute:

March 2, 2009, is the 34th anniversary of the assassination of Hon Josiah Mwangi Kariuki, popularly and affectionately remembered by Kenyans simply as “JM”.

The Elijah Mwangale-led parliamentary committee that investigated the killing, laid the blame on the State security machinery, senior government officials and the presidential aides.

JM is best remembered for his stinging criticism of Kenya’s ruling elite. “A small but powerful group of greedy, self-seeking elite in the form of politicians, civil servants and businessmen have steadily but very surely monopolised the fruits of independence to the exclusion of the majority of the people.

“We do not want a Kenya of 10 millionaires and 10 million beggars.”

Professor Mwangi wa Githinji has immortalised JM’s words by writing a book titled, Ten Millionaires and Ten Million Beggars: A Study of Income Distribution and Development in Kenya, which provides the evidence to reinforce JM’s critique of the Kenyan ruling class.

A FEW YEARS AGO, I ATTENDED THE funeral service of Prof Katama Mkangi at All Saint’s Cathedral, Nairobi. Activists Wafula wa Buke and Aluoka Otieno revisited JM’s murder by addressing Prof Mkangi’s spirit.

“If you see JM, please let him know that his Kenya has now 50 billionaires and 30 million beggars,” they prayed. It is not difficult to know who the billionaires are.

JM is remembered also for his love for the ordinary people and for spearheading a private member’s Bill in Parliament that resulted in the enactment of the Hire Purchase Act. The Bill had sought to protect the middle class who faced oppression from financial institutions engaged in the business’s financing.

On the land issue, JM favoured the imposition of ceilings by individuals, corporations, foundations and religious organisations, the major categories that own most of the land in Kenya. His challenge of powerful local and foreign vested interests must have formed the motives of those who killed him.

JM’s murder shook the very foundations of Mzee Kenyatta’s regime. There were demonstrations against the administration in various parts of the country. Mr Mwai Kibaki was the only Cabinet minister who attended the funeral.

If President Kenyatta had dared attend the funeral he would have needed the security that President Moi required when he attended Dr Robert Ouko’s.

Assassinations confirm to Kenyans that the vested interests in this country will kill leaders who dare stand up for ordinary Kenyans’ lives and livelihoods. The murder of freedom fighters Dedan Kimathi and Pio Gama Pinto is a further example of this political truism. Killing the messenger has never killed the message.

Kenya’s status quo of foreign domination, exploitation and oppression, supported by the self-seeking elite that JM talked about, cannot be sustained for ever and ever. History records that Kenyans have never succumbed to domination and exploitation and that, indeed, they have always fought for their freedom.

This message is currently being conveyed to the grand coalition Government that follows in the footsteps of its greedy and anti-people predecessors since independence.

As we celebrate the International Women’s Day next week, we need also to glorify the spirit, determination and sense of purpose that has been displayed by Ms Rosemary Kariuki (JM’s daughter) and Ms Terry Kariuki, the widow, in leading the family in a struggle for justice for JM.

THE TWO WOMEN ARE GREAT LEADERS and politicians. They have joined broad movements that call for the end of impunity and for the setting up of transitional justice mechanisms. They have over decades built networks of solidarity with other Kenyan patriots seeking justice for JM and other assassinated Kenyans.

They remind us of the mothers of political detainees at Uhuru Park’s Freedom Corner in Nairobi, who did not give up until their sons were released. They remind us of the mothers and grandmothers of the disappeared in Latin America who never gave up until justice was done.

The message for change can never be killed. The messengers have been jailed, detained, forced into exile or even killed. The message from the oppression is that leaders for change are prepared to die for their motherland. Kenyans who need change comprise the majority, and a cabal of local and foreign elites cannot for ever jail this majority.

Change is unstoppable as long as people who believe in true justice, democracy, human and equal rights keep the spirit to fight alive.

One of the reasons why Willy chose the Cabral Pinto moniker is because he saw Pio da Gama Pinto, the slain Socialist Nairobi MP as one of his revolutionary heroes as you can see from this piece he did:

From 2pm to 5pm on Saturday (21st Feb 2009), at Nairobi’s Professional Centre, a poet and former detainee, Mr Abdilatif Abdalla, will be a special guest at a function to mark what the organisers call Kimathi-Pinto Day 2009. The Mau Mau Research Centre is organising the event in collaboration with several other pro-democracy groups.

It is important for Kenyans to start remembering their patriots for change since the state does not do so. Would it not have been a great gesture on the part of the state if prisoners serving short sentences were released on February 18 in remembrance of the hanging of Kimathi by the British?

Mr Pheroze Nowrojee, a prominent lawyer, poet and political worker has written a great book on Antonio Rudolfo Jose Pio Gama Pinto. He calls Pinto a patriot for social change and shows this in his usual simple, clear language.

Pinto’s political mentors were the architects and patriots of Indian independence, prominently Mahatma Gandhi and Jawharlal Nehru.

Like them Pinto spent the rest of his life fighting for Kenya’s freedom. Pinto was a journalist whose activism and struggle were reflected in not only liberation journalism, but also in trade unionism and organising political parties such as the Kenya Indian Congress, the Kenya African Union and, later, the Kenya African National Union (Kanu).

Pinto was also a member of the Mau Mau central committee, the first vanguard of the group’s war of independence. He helped freedom fighters in the forests of Mount Kenya and the Aberdares by providing arms and supplies. He also looked after the families of the freedom fighters, including those who had been killed.

All these were activities that carried the death penalty during the British-imposed state of emergency. Like all patriots for change, Pinto was courageous and constantly outwitted the enemy. He was also a great pan-Africanist.

The British government detained him, but a revolutionary does not give up the struggle for change in the enemy’s prisons and detention camps, where he exposed colonial segregation. He also organised football matches in prison.

Pinto himself was a great sprinter and was chosen by the colonial government to represent colonial Kenya in the 400m and 800m races at the Commonwealth Games in Vancouver in 1952. But declined to take part, saying that his work for the country could not allow him several months to train and compete.

Pinto was in detention and restriction for five and a half years, and upon his release, he was involved in the campaign for the release of Jomo Kenyatta and all other detainees and prisoners.

He continued his liberation journalism work, raised funds for the detainees and those who were released. Like all revolutionaries, he was selfless and generous and loved all Kenyans.

As Che Guevara has written, “the true revolutionary is guided by great feelings of love.”
Pinto was no different. It was this love for Kenya and Kenyans that made him stand up against the Kenyatta regime which he saw as a reincarnation of the colonial administration.

William Attwood, the first US ambassador to Kenya and author of the still banned book, The Reds and the Blacks: A Personal Adventure, was a Cold War warrior with a clear mandate to keep Kenya in the Western bloc.

The opposition to the Kenyatta regime, spearheaded by Jaramogi Oginga Odinga, fought for Kenya’s independence, although in the eyes of Attwood, it wanted to place Kenya in Eastern bloc.

Attwood describes Pinto as a “brilliant tactician,” whose “priority objectives were to whittle down British influence, especially in the army and police, broaden his political base to other tribes and become the champion of landless peasants and the urban unemployed.” He also describes Pinto as Odinga’s “chief political adviser.”

It was for his struggle for true independence and for social justice for the poor, vulnerable and marginalised Kenyans that Pinto made powerful enemies from within and outside Kenya.

On the morning of February 24, 1965, three men rushed up through his home gate (Pinto’s home was where Sarit Centre is now) and to his car window, called out: “Jambo!” and one of them fired at him, killing him instantly.

On Saturday, as Kimathi-Pinto Day is celebrated, we have mentors and models for patriotic change. True reformers cannot any more claim they do not have political role models to help them fundamentally change this country.

We should live to the words and the spirit engraved in Pinto’s gravestone at Nairobi’s City Park cemetery: “A light has been extinguished. Yet there arise a thousand beacons from the spark he bore.”

Kenyan reformers should be part of the thousand beacons from Pinto’s spark.

Willy Mutunga’s columns in the Saturday Nation over the years reveals the passionate, revolutionary spirit guided by his Marxist leaning ideology.

The final piece of evidence I want to place before this Court of Public Opinion that is deliberating  on  the guilt or otherwise of Chief Justice Willy Mutunga In The Matter of the People of Kenya vs. The Supreme Court Decision of March 9, 2013 is a long essay that has been published as an entire chapter in a small book called the Power is Ours, published by Pambazuka Press. Other authors in the slim volume include Bunge la Mwananchi activist Gacheke wa Gachihi and blogger Onyango Oloo.
Here is Willy Mutunga’s essay in its entirety:

Personal Reflections on Movement Building
By Dr. Willy Mutunga


I have found a working definition of a movement by Professor Yash Tandon useful and an illuminating analogy, imagery and metaphor. He writes that “a movement is a complex phenomenon, it is dynamic, and it grows and grows as more and more people join the ‘project’ (if it makes sense to them, and involves them in its deepening and broadening). A movement is like small rivers joining to form a massive torrent.” Within this metaphor we can build incredible content, character and critical ingredients of a movement such as values, belief systems, ideology, politics and structures.

Before we see the small rivers we see shining and clean streams that emerge from small drops (individuals) that shine on the leaves. The streams that become small rivers and then big ones that drain their waters into lakes, seas and oceans depict collectives formed out of individuals because streams run into each other creating a momentum that results in the massive torrent. Lakes, seas and oceans are simply bigger collectives. As drops become water and as the water grows on a specific journey the gaining of the momentum has the potential to destroy or to navigate safely and harmlessly in a process of self-healing and self-cleaning that is useful to humanity. The human agency is critical in determining what the consequences of the massive torrent are. The terrain or journey of the stream, small rivers, big rivers into the lakes, seas or oceans has to overcome barriers in its way and again human agency is critical.

When we look at the character of the stream or river the issue of its cleanliness is important. Clean water nurtures and is part of our livelihood. We have seen dirty streams and rivers that soil our environment because of human agency.  A clean and nurturing movement focuses on the basic needs of the people and subverts the negativity of the status quo: profits before people in all areas of human endeavour.

We also know that streams and rivers dry up! So do movements. They die. What is critical is to search the reasons streams and rivers dry up and why movements die. The root cause would invariably be human agency where the terrains of streams may be blocked so that they do not join other streams and where movements die because of egos, greed, opportunism, dictatorial leadership, personal benefits and agendas taking center stage, intolerance, arrogance, lack of understanding, backward ideologies and politics and extreme fears for progressive change.

We see in this discussion key milestones in any movement. Movements start with individuals who have a vision of this journey of progressive change. The individuals possess particular values and character that reflect their commitment to change. These individuals in turn form a collective (organization/movement) in it’s own environment. Mergers of individual collective become bigger collectives or movements. Without water, streams dry up. Without a following of masses, movements die. Following is premised on the vested interests of the people that are captured by the messages of the movement that focus on its ideology, vision and politics. Thus contradictory movements exist to seek support for their respective interests. There are movements that reinforce the status quo while others resist it. There are fierce battles in the journey of change between contradictory movements. Change happens when the movements of change either prevail upon those of the status quo to make concessions or ultimately defeat them in the battles for leadership and direction. The battles in question are about contestation for political power and the capturing of the state that rules and controls all national resources. If the aim of the massive torrents that rivers display is to drain water in lakes, seas or oceans navigating barriers is critical if there is to be progress in that objective. For movements seeking change, the main prize is the capture of state power by a leadership that is committed to fundamentally restructuring or alternatively crushing the status quo. It is on the arenas of ideology and politics that armies are in combat for change and against the status quo and verbalize, historicize and problematize the unacceptability and unsuitability of the status quo.


The burning question now is whether movements need to be revolutionary or reformist and whether reforms are the basis of revolutionary change. There have been debates over centuries over this issue. Rosa Luxemburg’s work is an interesting place to start (and within it capture polemics between such revolutionaries as Marx, Engels, Lenin, Trotsky, Stalin, Enver Hoxha, Nyerere, Nkrumah, Cabral, Rodney and many others) as she addressed this issue fully.

The 20th century itself is pregnant with this debate. The Bolshevik Revolution in 1917 continued this debate internally and externally. Reforms became the lifeblood of regimes that faced overthrow (Britain, Europe, America and Asia). The New Deal, so-called Welfare capitalism in Britain, and Social Democracy in Europe were fundamental attempts to convince citizens in those countries that what socialists were offering could actually be implemented by the capitalists. Sidney Lens Unrepentant Radical: An American Activist’s Account of Five Turbulent Decades has very interesting discussion on the New Deal and how the reforms subverted the work of the Communist Party of America.

It is within this context that constitution making and human rights, particularly in the so-called Third World, needs to be located. The human rights discourse has its liberal and socio-democratic contents. It is a discourse that is invoked to prop up the status quo as well as to reform it. Welfare capitalism reflected both crusades until 1974 when neo-liberalism put an end to welfare capitalism and social democracy experiments. Under Thatcher and Reagan the engines of neo-liberalism fueled by World Bank, IMF etc  nurtured privatization, structural adjustment programs, and corruption while repeating Churchill’s dictum, “Capitalism is the worst form of government, but nobody has designed a better one.” The collapse of the Berlin Wall in 1989 reinforced the view that the only development paradigm the world had was neo-liberalism. Prophets of neo-liberalism such as Fukuyama and others were quick to reinforce these positions. It was in 1989 when a Ugandan revolutionary, Professor Wadada Nabudere wrote his unpublished manuscript, The Political Economy of Social Imperialism stating very clearly that socialism and communism did not collapse with the rubble of the Berlin wall. What collapsed in the Soviet Union, Eastern Europe, China, Albania, Nabudere argued, was not socialism or communism. Here was a voice in the wilderness that was not heard as socialists and communists chose to embrace human rights in their ideological and political pursuits. There are two reasons for this: the so-called collapse of socialism and communism dealt telling blows on the left coupled with the propaganda from the right that what the left stood for was untenable; the ideological confusion among the left that followed found a temporary home in human rights discourse, particularly its transformative arm.

Neo-liberalism took a great hit 19 years after the fall of Berlin wall. The financial crises in America and Europe brought back the cries for welfare capitalism (this time called state intervention, stimulus packages, etc) with Gordon Brown in the UK arguing that socialism was back on the agenda of development (this opportunistic stance did not win Labour the elections in 2010). Serious writing has taken place (see Monthly Review publications on this issue) on the failure of neo-liberalism to work and discussions on alternative forms of development.

It is in this context that the human rights and social justice paradigms (and constitution-making paradigm) have become relevant given the polarization occasioned by the events of 1989 and 2008. Within these paradigms the old paradigms of development (socialism and communism) can be revisited while imperialism and neo-liberalism can be interrogated. Given the fact that nobody talks about revolutions these days, except the right as it glorifies technology and profits and before people, armed struggle has been temporarily captured by fears of being labeled “terrorism.” Human rights and social justice paradigms offer an intellectual, ideological and political environment to take up the ideological discussions of old without the polarization that marked those debates. If the paradigms can do simply that (and this has to be interrogated as well) then the 21st Century gives us the opportunity to discuss the developmental paradigm that will rescue the world from war, poverty, disease and crime.

In the spirit of honesty, personal and historic reflection, I will share herein my experiences in various movements and evaluate their strengths and failures.  I have been personally involved in the December 12th Movement, the FORD (Forum for the Restoration of Democracy) movement, the human rights movement since the 1990s, the NCEC (National Convention Executive Council) movement and the National Alliance for Change (NAC) that changed into National Alliance Party of Kenya (NAK) before the alliance with the National Rainbow Coalition. The two gave birth to National Alliance Rainbow Coalition (NARC) that defeated Kenya African National Union (KANU) in the Kenyan general election of 2002.


The December 12th Movement was a culmination of various streams of academic and student underground work in Kenyatta and Nairobi campuses of University of Nairobi. It was a movement whose ideological and political lines came from units of leftist academics who were adherents of socialist and communist paradigms of development during the decades of 60s, 70s and the early years of 1980s. First were the study groups, reading great deal of Marxist-Leninist-Mao Zedong-Enver Hoxha-Kim-Il Sung thoughts, Nkrumah, Cabral, Che Guavara, Nyerere, Rodney, Samir Amin, Nabudere, Mamdani, Issa Shivji, Yash Tandon, Karim Hirji and others. Then the studies went beyond academic papers and discussions to real politics. With parliament as the centre of dissent crushed in the mid-70s (and the 8 bearded sisters in jail or exile), the University became the centre of agitation and dissent. During this period leftist scholars and students made strategic alliances with radical politicians in parliament who gave talks at the University. I remember one of those rallies when Koigi Wamwere was at his anarchical and adventurous best and the entire student population was ready to die for the Motherland.

The detention of Ngũgĩ wa Thiong'o in December 1977 signaled the start of the suppression of dissent at the University. When Ngugi was released in December 1978, the study groups constituted themselves into a movement of dissent at the University of Nairobi. The University Staff Union (resurrected in April 1979) became the vehicle of such agitation, cleverly using the bread and butter issues spiced with such issues as academic freedom (the whole gamut of it, that is, human rights) and the right to organize.  The Union was banned by President Daniel Toroitich Arap Moi at wedding ceremony (General Mulinge’s son was getting married), along with the Civil Servants Union on July 19, 1980. We were able to operate as a University Academic Staff Association after the ban. The Association did not survive the detention of lecturers that took place in July and August 1982. Ngugi’s Detained has an appendix which is a write-up I authored on behalf of the Union. In that piece I prepared a chronology of activities the Union engaged in to get Ngugi to resume his duties at the University.

December 12th Movement (DTM) was launched in May 1982 with its paper Pambana. Repression came too quickly for DTM to mobilize Kenyans as the Moi-Kanu dictatorship reared its repressive head. The dictatorship moved into the University and detained lecturers. The August 1, 1982 coup gave the regime the excuse to move in and deal a death blow to dissent at the University. Those elements of DTM who escaped Moi’s detention published another edition of Pambana. Ultimately, DTM’s activities were taken up by Mwakenya and Ukenya in exile. With the crushing of Mwakenya, Ukenya continued its activities in the UK, but it was clear the movement had retreated. I suspect Ngugi is one person who can write more about this history, but I know Maina wa Kinyatti has also written some of it his book The History of Resistance in Kenya. Some of us are already working on a specific review of this book because it has great weaknesses, with many of us who were involved dissatisfied with the interpretation of the resistance during this period.

I was a member of DTM. I participated in the writing and distribution of the first edition of Pambana (it is Alamin Mazrui who gave us this name of DTM’s mouthpiece). I served as Secretary General of the University Staff Union and University Academic Staff Association respectively until I was arrested on June 10, 1982 and subsequently detained without trial on July 29, 1982. I participated in the study groups within the leftist academic cycles and wrote ideological articles on Commercial Law, my teaching subject at the University. At the University, I also worked with the Legal Aid Centre to give legal aid and advice to the Kenyan poor including University students. It was clear from my detention papers that I was detained because of my political activities at the University.
Some of the comrades I worked with had been authors of Cheche which in 1982 Zed Press published as INDependent Kenya. These comrades were also the authors of Mwunguuzi, a think-piece that gave broad guidelines for a democratic constitution for Kenya. Kamoji Wachiira is currently writing about the political organizing that took place in 1960s and the early 1970s.


I was released from detention on October 20, 1983. I started practicing law from January 1984 (criminal practice) and was active in Law Society of Kenya (LSK) politics. I had served as Member of the Council before I was detained so in 1991 I was Muite’s running mate for elections of Chair and Vice-Chair of the Council. LSK worked closely with the Ford movement in agitating for the repeal of Section 2A of the constitution, which would create a multi-party state and introduce term limits for the Presidency. Again the alliances were clear: civil society and opposition political parties. When Muite joined Ford Kenya and ran for political office in 1992, I took over from him. LSK continued these relationships and one of the fruits of this relationship was the private prosecution of the Goldenberg suspects. Amos Wako, Attorney General of Kenya, whacked our prosecution by terminating it and the rest is history.

I served as Vice-Chair and then Chair of the LSK. I found Muite’s political astuteness important.  It was through Muite’s mentorship that I saw very clearly how civil society movements can make alliances with the political civil society. It was also during this period that Muite introduced me to various political and religious leaders. Through Muite I learned how critical intelligence in political work is. You cannot run an important political project if you do not know what the enemies of that movement are thinking and planning!

My experiences in the FORD movement were critical in reflecting how a mass movement loses its dynamism when it is converted into a political party. Political parties are formed to contest political power and once they are disengaged from the movement that constitutes their following and constituency, they become enslaved by narrow interests of fundamental vested interests in society. It is because of these experiences that while working with NCEC I wrote pieces on how social movements can enslave political parties so as to pre-empt political betrayal by the political elite.


Maina Kiai, Makau Mutua, Peter Kareithi, Kiraitu Murungi and I are the founders of the Kenya Human Rights Commission (KHRC). It was Maina who thought through the organizational aspects of the Commission, getting in touch with the four of us and ensuring that the Commission was registered in Washington DC in the US. This was in 1990-1. Both Makau and Kiraitu were in exile in the US. The rest of us were students who were also seeking asylum in North America because of our political activities at home and abroad.

The formation of the Ford Movement and the repeal of section 2A of the constitution convinced us that we could be operative in Kenya. Maina set up the organization in Kenya in 1992 and became its first CEO. We immediately used the human rights framework to prop the emerging multi-party politics in Kenya. I have told the story of KHRC in my book Constitution-Making from the Middle. Both Maina and I served in the Council of the LSK and we were able to create an expanded movement comprising LSK, Citizen’s Coalition for Constitutional Change (4Cs) and KHRC. That movement ultimately found itself in the broad movement of the NCEC.

At KHRC, I served as Vice-Chair of the Board until 1998 when I succeeded Maina as the CEO of KHRC. It was during my stay at KHRC as CEO when Vision 2012 was crafted whose aim was to root human rights and social justice issues in communities. The idea was that the human rights message had to contend with other messages at the grassroots to grow its following and critical mass constituency. We were also aware that human rights work among the middle classes was becoming professionalized and bureaucratized while passion for it was waning. Tapping the passion at the grassroots reflected clearly by workers, women workers, peasants and community based organizations was the only way to keep the movement ideologically and politically relevant.

At KHRC I authored think-pieces on human rights and the discourse’s relevance to politics of resistance. When Makau came to Kenya in 2002 on his sabbatical we were able to get KHRC actively involved in the politics of the day within NCEC and in the political parties. As stated above, human rights offered an intellectual, ideological and political environment to take up the ideological discussions of old without the polarization that marked those debates.


I have documented the alliances of pro-reform forces in my book Constitution-Making from the Middle. I tell stories of the alliances between NCEC and the political parties. I show how civil society is politically inflicted by the principle of non-partisanship and how the Inter-Parties Parliamentary Group (IPPG) gave concessions that we did not consolidate. In the alliances, the civil society groups acted as think-tanks for the movement, led it because the politicians wanted to stay in the background and avoid their battles until the right moment. That came with IPPG.

I was one of the Co-Conveners of the NCEC. I was one of the key ideologues and wrote several political pieces on how NCEC could engage in the politics of capturing state power. Within NCEC I was able to understand how leadership can democratically and organically grow. I understood very well how various talents of activists can be mapped and consequently merged for the greater good of the movement. In NCEC I witnessed the great potential of the youth as intellectual, ideological leaders and soldiers of the movement. I came to appreciate the role artists play in movements. NCEC also gave me great insights into how movements are infiltrated and subverted. As NCEC also worked closely with American, British and European donors, I came to appreciate the dangers of movements that are also appendages of donor interests.


The National Alliance for Change (NAC) was an alliance of civil society groups with the Democratic Party of Kenya, National Party of Kenya and Ford Kenya (led by Kibaki, Ngilu and the late Wamalwa) formed in 2002.  Civil society groups did what came naturally to them as they had done in NCEC. I chaired NAC until it changed into a political party, National Alliance Party of Kenya (NAK), when civil society groups left the movement. NAC generated many concept papers on virtually every economic, social and political issue. We also came up with a draft constitution. I believe the NARC government used one of those papers, one crafted by Joe Donde on free primary education. As Chair of NAC I interacted with many opposition politicians and was able to gain more understanding of the decadent nature of the Kenyan political leadership.


DTM had great intellectual and ideological capacity, a fundamental ingredient of any social movement. Given the repressive regimes of the time DTM also build its following within the Universities. Movements within the ivory tower suffer the weaknesses of not having a broad popular following. The movement was addressing this weakness when forces of repression pushed it underground and into exile and jails.

Ford was a mass movement that had great following in the country. It challenged the Moi-KANU dictatorship and the original Ford Party could have won the elections in 1992. The disconnect between social movements and the political parties they are supposed to vote into power was a glaring weakness of the Ford movement, which was not discussed. The party split on ideological and ethnic issues which should have been discussed in the movement. Movements must interrogate, historicize and problematize this issue because it very critical to building a democratic nation in Kenya.

NAC and NCEC (encompassing the human rights movements) showed the strength of civil society mobilization into the political agenda of a country. NCEC showed the weakness of failing to discuss how social movements can enslave political parties and make them accountable to the people. NCEC also reflected one major weakness of civil society, its perceived role of pressuring the state and not ever thinking of taking it over and controlling it. Civil society existing definitions and mandate should think seriously about the expansion to include political parties, especially those that are not in power. This may be a great political bridge of keeping social movements and political parties connected.


Some of the critical lessons have emerged from my experiences and insights into the weaknesses and strengths of the movements that I have been involved in.  In particular, I take the following as key lessons:
If you have no constituency and no following you cannot expect your ideological and political line to be dominant in any political alliances
Civil society groups do a lot of work for political parties without seeking political participation. The notion of agitating against the state is great for any opposition political parties that can utilize the resources of civil society for their ultimate political gain.

Civil society organizations have to problematize politics in their work. At the moment, the capturing of state power is not part of their mandate.
Civil society organizations and movements have to define their ideology and politics and seek alliances with political parties on that basis.

NAC and NARC brought to an end the political strategy of leftist politics being incubated in conservative politics. I know how often we used to recall Marx’s toast to the Chartists. He compared revolution to a mole that digs underground only to erupt at the appropriate time with dire developmental consequences. The reformers in NARC (27 in number) did not even dig! They were consumed by the right in a matter of months. Again, what was a reform movement in NARC was not an independent movement with a clear ideology and leadership that aimed at the contest for political power against the conservatives. Even when the MOU was torn up by Kibaki the reformers in NARC did not quit and form a strong movement for 2007. The reformers stayed with the usual suspects and gave no political sustenance to the Social Democratic Party. History now records that some of the reformers joined the gravy train and ended in the dustbins of reform history via Anglo Leasing! Perhaps there were no reformers, but great opportunists.

The NARC experience gave birth to fresh debates about alternative political leaderships and social movements that will generate such leaderships. Thanks to the unacceptable status quo in Kenya these debates have now shown some promise. Various social movements seem to know that capturing of the state power is the beginning of progressive change in Kenya. Constituency building has become important in many of these movements.  There is afoot a strategy to organize a congress that will bring all these streams together. Indeed, some of the activities pertaining to the referendum on Kenya’s proposed constitution scheduled for August 2010 reflect this. If these movements consolidate in a united movement with its leadership it should be able to start asking questions of alliances with the major political players. The difference will be that they will have bargaining power that they can use and they can politically decide which of the political players can give reforms some space.

How does one deal with the issue of leadership? NCEC provides a framework that I found useful. Leadership cannot be discussed upfront. It emerges out of struggles in those trenches when different roles have to be performed. The merger of talents in NCEC was a great lesson of how to map the talents and expertise of leaders. When ultimately one emerges as the first among equals there is not much debate. This formula is not being followed by the various streams of movements that are trying to come together at this time. People want to come to the congress as leaders!

DTM taught us that a movement needs strong intellectual, ideological and political base. It is in that base that visions of the society the movement would like to see are shaped, refined, re-aligned and tested. No revolutionary or reform movement can succeed without such leadership. History records how such leadership can be the blessing or curse of social movements.


The current reform movement is fairly clear that it does not want the status quo. Within the rubric of mitigating the status quo there exist various shades of ideological and political differences, but I believe it is not difficult to build a social democratic consensus that can be nurtured in the implementation of the new constitution. I believe there are various political spaces that are available in counties, senate, municipalities and parliament itself. It is possible to have representation in those spaces. Many people still argue the path to be followed is the pure one that stays unpolluted by the existing streams that feed into the status quo. That thought ought to be interrogated against the possibility of widening spaces of reform in alliances with some reform-minded political players. Such alliances have their own problems, but I am convinced that if the alternative leadership is strong and has a following, it can grow within that alliance and get some of its policies implemented. It is also clear to me that such alliances will not be permanent and there is need to discuss upfront when the parting of ways is to happen. I believe that is the burning question of our reform politics at the moment.

I would really like the opportunity to share these lessons with future movements, to talk to the leaders, the cadres and followers of these movements. I would like to document their successes and failures. I would love to be among the ideologues of such movements. As an ideologue of the movements, I have thought through the construction of a social democratic economy in Kenya undertaken by a human rights state that is controlled by a progressive political leadership. The blue prints available can be used for debates by the movements and political struggles by them could be on the basis of such discussions. I have mapped the respective talents, skills and expertise of various reformers in Kenya. I have thought through how these respective attributes can be merged to bring about a patriotic and dynamic core of leadership in the country.

Movements need cadres whose livelihood is addressed. I have thought through the building of passionate cadres for movements who get a decent livelihood out of the movement. We lose many cadres to reactionary movements because they provide temporary sustenance to them. The work of cadres in a movement is a full-time job and it is the responsibility of the movement to remunerate the cadres accordingly.

I have thought through how the movements can be financed by the people. We tend to forget that the Kenyan people supported reformers during the colonial period. The first African politicians owed their sustenance to the people who took them as their representatives. The Kenyan people bought their representatives cars, build them houses and clothed them! Movements that are not funded by the people cannot claim to have the following of the people. There are reformers who have set up projects in various parts of the country that can act as places for political education and for the exchange programs among cadres of the movement. These activities could be scaled up.

I believe, I could help the movements understand the global situation through discussions and by recommending the appropriate readings. The current global status quo is not sustainable and we have entered in yet another era of reforms comparable to the period after 1945. We can now confidently argue that neo-liberalism has failed and start to challenge the dictates of the World Bank, the International Monetary Fund (IMF) and other engines of imperialism. We can make the argument that it is in the interests of global peace and stability to carry out reforms.
                                                              
We have also entered into the era of declining empires and emerging ones. At the very least I can undertake to initiate such discourses within movements to strengthen their global perspectives.

I have great contacts with activist movements in many parts of global South. I could help point to our movements which movements, leaders and initiatives are worth visiting to learn critical lessons in fundamental transformation.









5 comments:

Anonymous said...

Hi Oloo, I appreciate that you are a prolific writer and one of Kenya's foremost thinkers and Social Justice crusaders. But can't we just allow Dr Mutunga and co to first table their judgement before opening fire? Have a blessed weekend Bw Oloo.

Kenya Democracy Project said...

Did you actually read the essay?

Because if you did, then you would have realized that far from "opening fire" I was doing the OPPOSITE!!

DEFENDING MY COMRADE.

Word of advice:

READ BEFORE YOU COMMENT.

Onyango Oloo

Anonymous said...

OO,
Great stuff.
Seems that he has had a good past.
His present and future are rotten.
I have lost all faith in Willy Mutunga. Power has corrupted the man completely.

I will wait to read his judgment.


Mzee

Anonymous said...

Good work and thumbs up for the article.
I'm now enlightened.

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