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Thursday, October 30, 2014

Why Limiting NGO Funding Is Not Just About The ICC Cases

A version of this article has been published in The Star.



It is easy to dismiss Moses Kuria. The Member of Parliament for Gatundu South has pretty extreme and downright stupid opinions on issues ranging from the effects of foreskin on mental faculties to the relationship between the opposition CORD coalition and the terror group, Al Shabaab. However it would be a mistake to not keep an eye on what he and his ilk are doing in Parliament.

Recently he has vowed to reintroduce an amendment to the Public Benefit Organisations Act to have non-governmental organisations whose foreign funding exceeds 15 percent of their budget classed as foreign agents. In doing this, he is resurrecting a similar bill that was introduced and withdrawn last year that also sought to limit foreign funding for local NGOs to 15 percent of their budgets. The move seems to be part of a determined effort by the ruling Jubilee coalition, whose manifesto does call for such a cap, to bring to heel the organised civil society groups that have been the bane of the UhuRuto candidature and administration. 

The proximate cause of this, as identified by Ngunjiri Wambugu in his Monday column in The Star, is the prosecution of the President and his deputy before the International Criminal Court. Mr Wambugu claims that it is Kenyan civil society that provoked hostilities with the government by “criminalizing the state” though he does not explain exactly what he means by this. Apparently he believes that the fact that the state was itself implicated in the 2007-8 post election violence and the push by civil society to secure accountability for this is equivalent to delegitimizing the state. Thus, he argues, the Kenyan state is responding, albeit in a misguided fashion, to an (unwarranted) attack.

This analysis ignores several facts of history. It was not civil society that opened the door to the Hague. In fact, as the violence was unfolding, the Party of National Unity and the Orange Democratic Movement each threatened to institute proceedings against the other at the Hague. Further, the Waki Commission, which was established as part of the National Accord that put a stop to the violence, itself recommended that the ICC be brought in if the political elite was unable or unwilling to establish a local process to try high-level suspects. The loud shouts of “Don’t be vague, it’s The Hague” did not come from civil society either but from the political elite themselves. The Deputy President himself was one of those who rejected a local process to try perpetrators.

Further, as Mr Wambugu notes in passing, the war of the state against organised civil society did not begin in the run up to the 2013 election. It has been part of a wider attempt by the Kenyan elite to avoid any manner of scrutiny and accountability for its penchant to impoverish and brutalise the population. It is important to make this distinction for outside the arena of accountability, the state has actually been instrumental in encouraging the growth of NGOs.

As Jennifer Naomi
 Brass notes in her PhD thesis, titled Surrogates forGovernment? NGOs and the State in Kenya, both local and international NGOs have a long history in Kenya.Since independence, the government has encouraged the development of indigenous not‐for‐profit organizations, self-help societies and community-based organisations. This happened even as the state was seeking to restrict citizen participation in politics and government. In this way, as the title suggests, NGOs did become surrogates for government, offering services where government was not either unable and unwilling to do so. Through them, the reach of the state was extended and “in many ways,” she avers, “NGOs have had a positive impact on government and their existence has helped to make the Kenyan state stronger.”

The government was happy to piggyback on this as long as NGOs stuck to “development” and did not question the goings-on in the halls of power. They were expected to deliver services to the people, but not to introduce subversive and un-African ideas of democracy and accountability. It is precisely when the started to do so, especially with the emergence of governance NGOs in the 90s that the state begun to decry foreign funding and foreign agendas.

Of course, as Mr Wambugu notes, it was a fight the state was doomed to lose. However, the cooption of many of the leading lights of civil society into politics and government in 2003, left the movement floundering and blurred the distinction between the political NGOs and those competing for state power. It is tis blurring that has seen civil society, just as happened with the church and to a lesser extent, the media, vulnerable to accusations of being merely a stepping stone to political power and thus of having nefarious schemes of regime change.

In the last decade, though, many governance NGOs have tried to reclaim the pedestal they once had and to refocus their efforts to core issues of governance. However, we still have a political elite, much of it infused with their former colleagues, that is not interested in enduring scrutiny or having its opportunities to “eat”extinguished. This elite has focussed its guns on preventing the re-emergence of civil society as a real check on government excess. The focus, as we are once again reminded daily, should be on “development” and “peace” and that we should guard against foreign agendas lurking around every corner.

In the end, this is what Moses Kuria’s proposed amendments are about. Not just the doomed cases at the Hague, but also protecting the avenues for patronage and enrichment at home. It is clear that the changes are not meant to make the sector more transparent, since all Mr Kuria would need to do is insist that the PBO Act- which already calls for NGOs to publish their audited accounts annually- is gazetted and implemented. They are in fact meant, as he himself acknowledges, to continue the delegitimization of, according to Ms Brass, organisations "the overwhelming
 majority of whose employees, leaders and advocates in Kenya are Kenyans, advancing Kenya‐specific social agendas –
 even when their funding is foreign".

So we should not dismiss Mr Kuria, tempting as that may be. We should take him seriously when he says that the goal of his amendments is to "control civil society".  We should all pay attention if we are to prevent a slide back to the dark days of the KANU dictatorship. As Plato once said, “the price good men pay for indifference to public affairs is to be ruled by evil men.”


Monday, October 20, 2014

My Mashujaa? Why, Bitches and Kvetches, Of Course!

In her insightful article, Memorialisation and memory of human rights abuses: a Kenyan example, Laragh Larsen notes the importance of memorials in not just commemorating the past but also in sanitising it. She also highlights the importance of alternatives to the official histories propagated by the state: “While official memory of Mau Mau was suppressed through decades of state-endorsed amnesia,” she writes, “published memoirs of former fighters and detainees of the rebellion allowed Mau Mau to stay alive in the public memory.”

As we mark Mashujaa Day, a day which is meant to commemorate the heroes of the past as well as those of the present, it is important that we remember that many of these heroes (and heroines) will not be found in the official rosters put out by government officials. Indeed, many will be offering subversive alternatives to the official truth propagated by government spin doctors and media pundits. Because these narratives will generally seek to debunk the optimistic vision that these are selling, their purveyors are easily branded as inveterate complainers and doyens of negativity.

In fact, complaining has never been particularly appreciated as part of our national democratic discourse. On Mashujaa Day, Machakos Governor, Alfred Mutua had no problems preaching “unity and development free from poverty politics,” to a county with poverty levels of 64 per cent. The very word “complain”carries a negative connotation as does its synonyms, such as moan or grumble. As Eckhart Tolle, author of The Power of Now and A New Earth, says, “to complain is always non-acceptance of what is. It always carries an unconscious negative charge. When you complain you make yourself a victim.”  It is many times associated with empty, supposedly unconstructive criticism, a capricious exercise of the vainglorious power of the put-down. "Complaint gives you power, even when it's only the power of emotional bribery, of creating previously unnoticed levels of social guilt," writes Robert Hughes, author of Culture of Complaint: The Fraying of America.

In a 2001 article for Time, Hughes bemoans “the all-pervasive claim to victimhood,”  and “a juvenile culture of complaint in which Big Daddy is always to blame and the expansion of rights goes on without the other half of citizenship: attachment to duties and obligations. ”

 But the fact is whiners and gripes are critical to the proper functioning of any democracy and any governance and service delivery framework built on the tenets of free consent. They are the ones who alert us to wrong doing and incompetence, who let us know when we are getting a raw deal. An inquiry into the appalling care offered between 2005 and 2008 at the main hospital in Stafford in the UK acknowledged the importance of bellyaching. “In the end, the truth was uncovered in part by attention being paid to the true implications of its mortality rates, but mainly because of the persistent complaints made by a very determined group of patients and those close to them. This group wanted to know why they and their loved ones had been failed so badly,” says the Francis report, which was released last year. The House of Commons Public Affairs Select Committee in a follow up inquiry found “that valuing complaints and supporting people who feel the need to complain should be at the heart of the values which drive public services,” and even recommending that “there should be a minister for government policy on complaints handling.” As the late American novelist, Zora Neale Hurston said, “If you keep silent about your pain, they'll kill you and say you enjoyed it.”

In Kenya, it was malcontents and inveterate complainers such as Dedan Kimathi, Bildad Kaggia, Jomo Kenyatta, Jaramogi Oginga Odinga, Achieng Oneko, Daniel arap Moi and Pio Gama Pinto, who hastened the onset of independence. They took their gripes right to the heart of the colonial edifice. And when the regimes they formed turned to be little different from those of their British predecessors, it fell to moaners like Jean-Marie Seroney, Martin Shikuku, Raila Odinga, Koigi wa Wamwere, Wangari Maathai, Timothy Njoya, Kivutha Kibwana and John Githongo who kept the fire of resistance alive.

Today, these and many others will or should be honoured for what they did. But even as we raise memorials to them, we must beware that which is sanitised, not just the unsavoury past of many of our heroes, but also the contemporary grouches whom we will not acknowledge. In the last few years, despite the “expanded democratic space” Kenyans love to crow about, it has actually become much less fashionable to bitch about and challenge official narratives of progress and development. It has not been easy for those who have sought to develop and propagate other stories and to keep alive memories that the country would rather forget. 

In fact, there has been a concerted effort to silence alternative voices, to generate an atmosphere of unremitting optimism which is oppressive to any suggestions to the contrary. Questions over the utility of the infrastructure projects the government is undertaking are given short shrift as are concerns over its subversion of the constitution to protect the President from trial at The Hague. During his Mashujaa Day address, President Uhuru himself decried what he called "constant negativity" and "endless, noisy and unproductive politicking," urging the country to concentrate on "development." Those who query his government's commitment to values such as justice, the rule of law and equity are accused of being agents of foreign powers, lacking in patriotism. Sovereignty is conflated with uncritical support for the government and love for country with silence over its many shortcomings.

A recent example can be found in the furore over reports that civil society activists had called for sanctions if the government was found to have breached its obligation to cooperate with the International Criminal Court. Putting to one side the fact the the activists in question say they issued no such call, it is curious that concern over the alleged failure by those in authority to live up to the requirements of a treaty that is part of our own laws is controversial; that demanding action against such a government is somehow unpatriotic. Here one is reminded of the calls for economic sanctions by the then opposition during the struggle against the Moi dictatorship. Further, when the Kenya government, which has itself raised matters before the ICC at international fora, including at the UN, expresses concern when others do the same, it arrogates to itself the sole right to fulminate and affirms the view that the official truth is the only one that should be heard.

Yet we need to hear the issues, stories and memories kept alive by the moaners. By the people at Brainstorm, by the refusal of Prof Wambui Mwangi to forget the suffering of our women and Denis Nzioka that of the LGBTI community, by the likes of Shailja Patel, Prof Keguro Macharia and Abdullahi Boru who will not let us forget about Kasarani and the victims of Operation Usalama Watch, the folks at Maskani and Pawa 254 who are generating new and useful conversations about where we are headed as a country. The much denigrated denizens of civil society who refuse to be silenced. These and many others, too numerous to name, both online and offline, are the one who dare to raise their voice, to say it is not all sunshine and roses, to demand equality and justice.

So here’s to the complainers and the bellyaches, the grouches and the gripes, the bitches and the kvetches, the grouses and the squawks. For their non-acceptance of what is, they are my Mashujaa.

Thursday, October 16, 2014

The ICC's Dilemma In Uhuru, Ruto Cases

Last week, Uhuru Kenyatta made history. On Tuesday, he became the first sitting President to hand over power to his Deputy and two days later, paradoxically was the first sitting President to ever appear before the International Criminal Court. On his return, he was treated to a hero’s welcome with thousands thronging the streets, egged on by his administration. According to one poll, his approval ratings soared to 71 percent, compared to 43 percent just two months ago.
“Politics is theatre. It doesn't matter if you win. You make a statement. You say, ‘I'm here, pay attention to me’” said the gay American politician, Harvey Milk. The unnecessary theatrics of handing over power and resuming office –“a temporary abdication,” Sky News called it- showed just how well the Kenyatta administration understands this. In fact, he and his Deputy, William Ruto, have skilfully managed to turn their indictments for crimes against humanity to their political advantage, easily slipping into the role of victim. In fact they have utilised a trope long made famous by Kenyan politicians. Every time one of them has been threatened with prosecution for economic crimes or political violence, they have mastered the art of using their ethnic communities as a shield. So effectively, they paint themselves, and their communities, as victims and generate political heat to prevent the cases ever being judged on their merits. Failing that, there is always the time-honoured practice of bribing, intimidating and even murdering witnesses.

In the cases before the ICC, we have seen elements of all these strategies. First was the sustained campaign to paint the court as anti-African and to transform the duo into the victims of “the toy of declining imperial powers” as President Kenyatta described the court at the African Union. This is the “our community is being targeted” argument. That African nations form the largest single group of signatories to the Rome Statute, that the Prosecutor is African and that the many of cases, including, arguably, the Kenyan ones, were referred to the ICC by African nations themselves are facts that are not allowed to stand in the way of this performance of collective victimhood. Why Sudan and not Syria, they cried, ignoring that while both are not signatories to the treaty, the latter has cultivated friends at the UN Security Council who have prevented any reference of the situation to the ICC. Omar Bashir, however, is not so lucky in his alliances and indeed it was the Security Council that got the ICC involved in his case. But it is easier to demonize the ICC than to go after the Security Council. And they are not after the Security Council anyway.

Then there was the attempt to turn up the political heat and to get the cases either postponed or dropped altogether.  From the UN to the AU to the Assembly of State Parties, the Kenyan Government pulled all the stops, declaring that these cases were no longer the “personal challenges” of presidential candidates, but the national security issues of the entire country. The prosecutions threatened the fragile peace between the Kikuyu and Kalenjin communities who, though reconciled, were apparently raring to have another go at each other’s throat. It was only the promise of impunity that kept them apart, or so the story went.

When a poorly attended extraordinary AU summit embraced the position that no African head of state should be prosecuted while still in office, the Kenyans wasted no time declaring a massive victory. The fact that it was reportedly just 15 out of the continent’s 54 countries that endorsed the view was irrelevant. The show must go on! However, the UN and the ASP took a rather dim view of that proposition, the former declining to stop proceedings and the latter only agreeing to change the rules to allow the two accused to skip some court sessions and to attend via video link. Of course, the fact that the Kenyan constitution specifically allows for the prosecution of the President did not appear to give the government pause for thought. Worse, it did not lead any of our parliamentarians or journalists to ask why the Uhuru administration was seeking to subvert the clear intention of the basic law that the Presidency not serve as a shield for those charged with international crimes.

Alongside all this, strange things were happening with the witnesses. Some died, others had their identities revealed, still more begun to withdraw, some turned out to be liars, yet others had sudden attacks of conscience and claimed to have been enticed to lie on the stand through promises of relocation to Europe.  Reports begun to emerge of cartels hunting down and threatening or bribing witnesses. As well, the prosecutor was complaining of non-cooperation from the government which was accused of withholding evidence which became increasingly crucial as witnesses dropped out. 

Soon, Madame Fatou Bensouda was admitting that she no longer had enough evidence to sustain a conviction. But the show must go on, she argued, saying that it would be a mistake to reward the government’s intransigence. On their part, many Kenyatta’s supporters took to claiming that in fact there was no evidence at all and that he had been framed.  However, the OTP, at the last status conference summarised the evidence it had, including witnessed and phone records linking Kenyatta to the financing of the Mungiki terror gang to carry out attacks.

So where do we stand today?

As a court of last resort, it was indeed the failure to set up a credible local tribunal to try the elite that forced the ICC to act. But, for such a landmark case, the first attempt to hold a sitting head of state to account, the trials have revealed the weakness at the heart of the international justice system and just how vulnerable it is to both political pressure and governmental manipulation. Ironically, it is to escape these very factors that many put their faith in the ICC in the first place, viewing it as a panacea for weak local courts unable to hold powerful elites to account.

However, the tough realities of trying to prosecute some of the most powerful people on the planet have demonstrated that the court should not be oblivious to the politicising of its procedures and decisions. Arguments made inside the court are just as likely to be aimed at political constituencies as at the judges, and political theatrics are just as likely to affect the court’s ability to effectively try cases. Further, as has been demonstrated in the case of the Sudanese President, the ICC lacks the means to coerce even signatories of the Rome Statute, let alone those standing outside of the treaty, into abiding by its decisions.

This raises difficult questions for the supporters of the court and for those who struggle against official impunity. How to ensure cooperation from the very governments whose leaders it is trying to prosecute? How to protect the court’s credibility without miring it in the muck of local and international politics? Does the Rome Statute need to be amended to give the court real teeth in enforcing its decisions? These and other issues will continue to engage those working to make real the promise of accountability long after the circus has left town.