By NGUNJIRI WAMBUGU
A state is political organization with a centralized government that has sovereign authority over a recognized geographic area. It functions through a political and administrative organization called ‘government’. Governments might change with various elections but the State remains a permanent fixture of a nation. Civil society on the other hand is the aggregate of all individuals and organizations in a society that are outside government; all ‘non-State actors’. This means that a State and civil society are essentially two parts of one society. One governs and the other responds to that governance; a simplistic presentation of the correlation between the two sections of society.
Ironically in Kenya these two complimentary parts of the Kenyan society are at war with each other, mainly because of the Kenyan cases at the ICC. This war is being fought locally, and in the international sphere; as both parties seek to present the other as ‘evil incarnate’.
The CSOs started the war when they criminalized the State locally and abroad after the 2007 post election violence. This was most probably done with best intentions as they argued that the State had been involved in the violence by commission or omission and thus could not be involved in finding solutions, or pursuing justice, around what had happened. To their credit they did this so effectively that even the Kenyan political establishment rallied around the need for a foreign process, outside the Kenyan State’s control, as the way to go. This is how Kenya ended up at The Hague. The CSOs then did everything they could to help the ICC investigate the Kenyan situation.
Unfortunately even in the best case scenario Kenyan CSOs just do not have the capacity to conduct investigations especially at the level of crimes against humanity. This means that the results were the cases as currently presented at the ICC; badly investigated and with unsustainable evidence. Then add the fact that the ICC is a court that is not as independent as the Kenyans thought, is unwilling to accept mistakes were made, and seems more interested in protecting its own symbolism as an international court of justice, that in a genuine search for justice and you understand why the Kenyan State is upset with the process. Unfortunately they lay blame for all this situation on the Kenyan CSOs.
The Kenyan State has responded to this situation by seeking to delegitimize the Kenyan civil society locally and abroad, especially since the Jubilee government got into power. There have been numerous attempts to muzzle the civil society either through the media or directly through legislation. Efforts like those by my good friend Gatundu South MP Moses Kuria to push a bill to categorize CSOs receiving over 15 percent foreign funding as ‘foreign agents’, as well as recent comments by the President on ‘gatekeepers and interpreters of Kenya in foreign capitals’; are being interpreted as part of this effort. Essentially the state seems to have declared war against Kenya’s civil society, which essentially would mean the state is at war with its own citizens.
But it does not have to be like this. When the President came back from The Hague recently he stated that no one should imagine that we, as Kenyans, have not learnt where we went wrong. I would like to assume that he included both the State and CSOs in that statement.
Kenyan CSOs need to start by accepting that in retrospect it was a mistake to criminalize the State and then expect that to pursue justice for citizens of this same State. They need to also appreciate that only a State can effectively conduct investigations on crimes against humanity and admit that however good the intentions of whoever was involved at the time, bad evidence and unsustainable witnesses were given to the ICC because of inadequate capacity. Once the CSOs accept that the ICC process is fatally flawed and should be stopped they are on the same side with the State.
The Kenyan State on the other hand needs to accept that no State can fight its own civil society and win. History shows that whenever a State has started a fight against its civil society it retrogresses into a dictatorship and then; ironically, actually makes the civil society stronger and more effective. Jubilee would easily learn this if they looked back into President Moi’s tenure where in an even more closed political environment than we have today, Moi lost that war. This will help them change how they are engaging with the Kenyan CSOs.
Finally, both parties share a common concern for the victims of the 2007 PEV. CSOs have spent huge resources analyzing them, and the state has the capacity to do something about them. Why not partner to conclude on this issue? CSOs could develop proposals of what can be done to conclusively sort this group out, and the state can implement them. This would sound a death knell to the ICC process.
(Wambugu is a Director of Change Associates; a Political Communications Consultancy)