Following the 2007/2008 post election violence, the Kenya National Commission on Human Rights (KNCHR) released a damning report aptly titled On the Brink of the Precipice, detailing one of our country’s darkest hours when our leaders, institutions, national and individual consciences collectively failed us. In a matter of hours, then days, then weeks, we went down a bloody alleyway where life, limb, property and livelihoods were lost.
Then, as always tends to happen, we said the two magical words.
Never again!
But did we mean it?
It took the mediation of Koffi Annan to make Mwai Kibaki and Raila Odinga appear on the steps of Harambee House and shake hands on Thursday 28 February 2008, returning Kenya to a negotiated normalcy. That ceasefire prevailed post the 2013 presidential contest, on account that Kenya now had a Supreme Court – a product of the 2007/2008 violence – a court of last resort whose verdict a disgruntled party could disagree with but not disrespect. Raila Odinga, dissatisfied, expressed as much as Uhuru Kenyatta took the reins.
But then the 2017 presidential dispute proved that much as the Supreme Court was a most crucial thread in holding Kenya’s national fabric together, it didn’t necessarily offer foolproof (extra-legal) remedies, thereby exposing Kenya’s negotiated normalcy to political aftershocks.
Upon the court nullifying Uhuru Kenyatta’s reelection, Raila Odinga declined to participate in the repeat Supreme Court-prescribed election, demanding a reformed Independent Electoral and Boundaries Commission. The Supreme Court couldn’t help. Odinga hit the streets. It was only after Odinga’s second appearance on the steps of Harambee House on Monday 5 March 2018, this time shaking hands with Uhuru Kenyatta, that Kenya’s negotiated normalcy resurfaced.
The Supreme Court, it seemed, hadn’t had the final word.
And so when Raila Odinga hit the streets following the Supreme Court’s upholding of William Ruto’s election as president, naysayers thought it was all an exercise in futility. The Supreme Court had spoken, and unlike Uhuru Kenyatta, William Ruto wouldn’t burge and perpetuate the notion that the Supreme Court hadn’t had the final say. But then Maandamano Mondays took off, escalating into Maandamano Mondays and Maandamano Thursdays. Something had to give. And much as William Ruto hasn’t yet gone either the Mwai Kibaki or Uhuru Kenyatta Harambee-House-steps-route, he has at least extended Odinga a legislative olive branch.
And now all the buzz is about parliamentary bipartisan talks.
But then if history is anything to go by, Kenyans must by now beware that were there to arise a Ruto-Odinga truce based purely on the two men crafting a political deal, then there are no guarantees that we won’t be back here in 2027, whether with Odinga as a protagonist or not.
This is because much as the Koffi Annan-led mediation in 2008 resulted in the infamous Agenda Item Four, which proposed far reaching reforms meant to entrench Kenya’s ‘never again’ declaration, the fact that the process was driven by the two political sides meant it was still a game of poker, where crucial cards remained hidden under the table even as players professed a new dawn for Kenya. That we have had post-election turbulence in the last many elections is evidence that the 2008 Koffi Annan prescriptions need a boost.
This, then, begs the question, which way Kenya?
Because leaving matters to politicians will keep us in the same loop.
History has an answer.
When traces of a new constitution started appearing in the vista in the late 1990s and early 2000s, it was apparent that the political class, as is its nature, would attempt to hog the process. And so when it came to putting together what would eventually become the Constitution of Kenya Review Commission (CKRC), doors and windows were closed to many (non-politicos) who had put country first in the clamor for change, and who would therefore not participate in the process with the shortsightedness of majority of the politicians.
But knowing that politicians never yield space voluntarily – they are forced to yield – a group of eminent Kenyans (anchored by a progressive collective of religious institutions) stationed at the historic Ufungamano House decided to preempt the political class by establishing a parallel constitution making process, dubbed the Ufungamano Initiative. Seeing that Ufungamano was gaining traction, the political class eventually came around six months later.
Prof Yash Pal Ghai, who was proposed to lead the CKRC, advised the government and politicians that it would be imprudent to not tap into the richness of the Ufungamano group, making it clear that he wasn’t keen on leading a non-inclusive process. In the end, the Ufungamano Initiative constituted a third of what became the CKRC. The mere act of bringing the Ufungamano group on board – including the likes of Dr Oki Ooko Ombaka – enriched and safeguarded the process, denying politicians carte blanche powers to do as they pleased.
At present, Kenya is yearning for this sort of intervention.
