The Waki Report: Going Beyond the Scarecrow!

The Justice Philip Waki Commission Report on Post Election Violence in Kenya "Presents only a pedestrian view of events and scary description of violence but falls short on evidence that would worry the perpetrators. It is nothing but a scarecrow," asserts Ashitiva Mandale, a prominent Nairobi lawyer. "By delving into the history of election violence during previous regimes,” Mr.Ashitiva continues, “the scarecrow shifts blame and offers excuses that the present regime simply inherited the problem."

Kenyans have woken up to the old song of the 60s! The political leadership of the time conspired with departing colonial officials to draw a veil on the skeletons of Mau Mau repression, colonial scandals, and land issues. The founding president, Mzee Jomo Kenyatta was famous for his rallying call that citizens forget the past and build the nation (tusahau yaliyopita tujenge taifa).

His successor, Daniel Toroitich Arap Moi pledged to follow his footsteps through his famous Nyayo philosophy. President Mwai Kibaki's current push for amnesty seems to follow a similar pattern of simply covering up past misdeeds and leaving healing to nature.

Although political leaders assume that their pronouncements will miraculously heal the country, a recent event where a teller in a certain bank in Kenya lost her cool and lashed out at some customers by virtue of their ethnic origin is a pointer at the seething anger under the nation's belly. The bank management was so embarrassed that they recommended she goes for guidance and counseling. The teller confided in a friend that she would simply attend counseling sessions to "please" the management but she doesn't see herself forgiving those who burnt down her property during the post election violence.

On the other hand, a member of a certain community from Rift Valley felt that the Waki report ignored the fact that they were merely fighting to repossess that which had been taken from them at independence. Another one further asserted that they were fighting for democracy! In other words, Kenya is simply in a state of ceasefire...

As Mr. Ashitiva pointed out, it is disappointing that Kenyans have been presented with a report that gives the perpetrators of violence clues on how to destroy evidence. To have a voluminous report that outlines details of violence, but fails to offer a water-tight evidence driven approach is to empower the guilty to have their smart lawyers ready to drag the nation into legal feuds that might take centuries to resolve at taxpayers' expense.

Perhaps Kenyan leaders are investing on time to heal; but healing without a sense of justice simply helps to fortify the deep sentiments against different communities that have been building over the years. Spreading the guilt over a long historical timeline without interrogating solid causes will not help anyone.

The Waki Report summarizes in part: "... post-elections violence was spontaneous in some geographic areas and a result of planning and organization in other areas, often with involvement of politicians and business leaders." The kneejerk reaction to this finding is to get heads on the guillotine! But will the ancient Babylonian King Hammurabi's code of 'a life for life, and a tooth for a tooth work' in our situation?

Hammurabi's law may not assist Kenyans tackle the culture of impunity if it fails to address the fact that ethnic communities and even individuals did not of their free will give birth to Kenya as it is today. It is important that Kenyan citizens get an opportunity to legitimize the Republic through the rewriting of the constitution. Given Kenya's history of a nation that was founded on fraud; it makes no sense to keep glossing over the fact that we are in a country with silent ethnic kingdoms. A casual observation on how Kenya's media selectively projects aspects of the report helps amplify this point of deep ethnic sentiments.

The Waki report is revealing on the urgent need to rewrite the country's constitution to help grow the citizens' confidence in our institutions. The country urgently needs a constitution that will help spread the baking of the 'national cake' from the center (government) to individuals and insulate the minority against abuse. Kenyans need a constitution that will recognize the need to build a 'Kenyan' attitude and where possible an 'African' one!

Kenyans should be given a chance to address the cause and motivation that leads to violence instead of choosing the path of 'forgive-and-forget.' For instance, why would the business class pay for the destruction of their market?

It defeats logic at superficial level, but when further interrogated, yields an interesting point on the likely motivation that drove the business class to violence. First that Kenya is held together by a class that protects the 'pie' popularly referred to as the 'national cake.' Second, the work of the political class is to bake the 'national cake' through taxes and foreign aid and then hand over contracts to individual cronies who form the 'business class.'

Third, that the 'ethnic kingdoms' form alliances time and again to gain control of the 'national cake.' Fourth, the Waki report reveals an attempt by one group to gain total control of the national cake to the exclusion of forty plus others – and that drove opposing camps to slit each others' throats. The quest to partake of the national cake is always clothed in ethnic interests.

Business people's involvement in financing chaos early this year points at the weakness of the obsession with state financed contracts. Indeed the government is the biggest customer anywhere, but to seek to destroy a country in order to gain business opportunity is the question of the proverbial snake that swallowed itself. Developed countries are fully aware of the weakness of this strategy; they at times bomb out regimes to gain control of markets but are in turn forced to spend huge sums of money securing their own borders at the expense of enjoying the wealth they accumulate.

The fact that Kenya is using a system that alienates individuals from competitively baking their own private cakes is demonstrated by the gated residential areas all over the major urban areas. The governance system as is presently constituted has turned Kenya's children into a security threat instead of strategic assets for the country.

As you read the Waki report; you may choose to blame the police (instead of those who gave them orders), the politician (ethnic reality) and business people (national cake) but don't ignore the urgent need for a legitimate social contract!

Kenyans ought to go beyond the 'scarecrow' and analyze the weakness of the South African strategy of Truth and Reconciliation. It is one thing for the top to reconcile, and leave the bottom seething and assume all is well. South African experiences one of the highest crime rates as economically disenfranchised blacks attempt to break into the wealth bubble. Forgiving the past is likely to sustain the status quo, that-is, leaders that wine and dine together, and keep armies of angry and hungry people in wait to fight wars that they have no idea about. If Kenyans cannot be allowed to know and nail culprits, give them a chance to interrogate the causes of the cyclic electoral violence.

It is not going to be easy, but perhaps Kenya should explore a possibility of fusing traditional peace making methods and those of modern law!

By James Shikwati

Mr. Shikwati is the Director of Inter Region Economic Network