KENYAN IDPs ARE ENTITLED TO HUMANITARIAN RELIEF, NOT COMPENSATION.

Whereas government officials have ruled out compensation to the victims of the post-election that rocked Kenya in January and February this year, the issue refuses to fade away. But are they right? The cardinal responsibility of protecting the life and property of the citizens rests with the state. Consequently, the state enjoys the monopoly of the use of force of violence and is vested with the power and authority to procure and manufacture arms and other articles of war. Under International Human Rights and Humanitarian Law, states are obligated to compensate victims of their own breaches under Article 148 of the Geneva Convention and the Protocols additional thereto. The claimant must however demonstrate that his loss was occasioned by an act or omission attributable to the state under international law and which is a transgression of an international responsibility by the state.

The issue of compensation or restitution for refugees and IDPs is even more complex where people get displaced or lose their property due to religious, ethnic or political violence. This usually occurs when armed groups defy the rule of law, engage in extensive violence and make it impractical for the state to defend the rights of its citizens. Most of the victims of the post-election violence in Kenya fall under this category. They are victims of a well orchestrated, highly choreographed political adventurism by wayward leaders who exploited ethnic apprehensions as a basis for political mobilisation and competition. The IDPs cannot accuse the organs of the state of any direct violation of an international or municipal law obligation, on which a legal action can be founded against the state under the law of torts (civil law). They may also not be in a position to identify with certainty the person(s) who occasioned loss to them.

Whereas the IDPs may not have a legal basis to seek compensation or restitution under the law of torts, they are nevertheless entitled to state protection under International Humanitarian Law. The government of Kenya is under an international obligation to ensure that they are resettled back to their properties. The state also has a responsibility to assist them to reintegrate back to society, improve their living conditions, resist evictions and affirm their civil and political rights.

The state has been careful with the choice of words and has so far only offered to grant them relief on humanitarian basis through the Government Financial Management (Humanitarian Fund for Mitigation of Effects and Resettlement of Victims of Post-Election Violence) Regulations, 2008. These rules which were enacted by the Hon. Amos Kimunya, the Minister of Finance, pursuant to section 26 of the Government Financial Management Act, 2004, were not even necessary in the first place. The state’s responsibility to assist victims of natural and human disasters is not premised on legalise alone, but rather on a higher norm, the law of basic morality. No law can be applied to force people to contribute towards the relief efforts or to stifle the right of refugees and IDPs to humanitarian relief. Any such law is bereft of basic moral content and lacks the force of legitimacy to elicit voluntary compliance from the citizens. People willingly contribute towards relief efforts due to a compulsive desire to help others which is an inherent instinct for self preservation in every human being. Humanitarian relief as opposed to legal compensation is the better phrase for the support that IDPs are seeking from the government. The media should use the correct phrase to avoid creating unnecessary tension.

SENATOR OBAMA’S GOOD FORTUNES ARE A BLESSING FOR KENYA & AFRICA

Barring any surprises or the intervention of a force majeure (or an act of God), Illinois Senator Barack Hussein Obama is likely to become the presidential candidate for the Democratic Party in the United States of America. Apart from escalating his chances of becoming the 44th president of the United States, Obama’s win is of great significance to the people of Kenya and Africa, if not the entire race of the people with relations to African ancestry.

His win will not just bolster the image of the Kenyans and Africans in the world but may also emancipate an entire race from the greatly hyped but seriously flawed myth of Africanity. The depiction of the African people has suffered greatly in the last two decades. Claims of endemic corruption, incompetence and outright intellectual incapacity have seen the African people discriminated against and treated as less human in many parts of the world. The rest of the world has perfected the art of associating Africa and its people with natural and human catastrophes such as war, drought, famine and disease. Just recently, James Watson, an eminent scientist and Nobel Laureate, made claims that the average African person has less intelligence than his contemporaries of other racial groups. This myth of Africanity is also perpetuated by the media, artists, filmmakers, historians, writers, scientists and foreign politicians through literary works and publications that paint Africans as inferior people who are inherently corrupt and inept. In the 1990s many African nations were forced to implement Structural Adjustment Programs (SAPs) to perk up up their economies which were reeling under massive foreign debt. The Structural adjustment policies and other conditionalities driven by two of the Bretton Woods institutions, the IMF and the World Bank, saw the replacement of many senior Africans in the civil service and state enterprises with foreign (expatriate) managers. These policies which were renamed the Poverty Reduction Strategies in 2002 hence also served to entrench the myth of Africanity. As a result, the African political and professional leadership suffered and continues to suffer from a crisis of confidence and credibility.

Senator Obama’s win will help to shatter this myth of Africanity. Obama's relationship with Africa is present and palpable. It has no connection with the nostalgic past history of slavery and forced migration. His African relatives are alive and well known in Kenya. His African ancestry is not doubtful and is not in issue.

It is therefore very important for Kenya, Africa and the entire world that Obama wins the Democratic Party presidential primaries. His win will be the clearest evidence that inter-racial relations in the world have gone the full cycle. It will be prove that any talented individual can achieve their highest aspirations in the world, racial background notwithstanding.

In the short term, an Obama win will turn the focus of attention to Kenya which might result in increased visits by foreigners and tourists. This may just be the anecdote for the faltering tourism sector which was almost ruined by the post-election violence which rocked the country early this year after the announcement of disputed presidential poll results in December 2007. Players in the Kenyan tourism sector should be watching Obama’s campaign with baited breath.

MUNGIKI HAS LEGITIMATE HISTORICAL, POLITICAL & SOCIO-ECONOMIC GRIEVANCES.

Hardly a day passes without the mention of mungiki in the mainstream print and electronic media. Journalists, political and social commentators have attempted to analyse the causes and possible anecdote to the problems posed by mungiki. Their analyses are usually superficial and the solutions they propose simplistic.

The historical origins of mungiki are intricate and complex just as the sect itself. The problem of mungiki is traceable to the land tenure reforms initiated by the British colonists in the 1950s. In 1955, the colonial government published the “Plan to Intensify African Agriculture in Kenya”. The overt aim of this plan was the creation of landed African gentry that would participate in intensive and large-scale agriculture to boost the colonial economy and solve the problems of political instability and unrest. According to Professor Yash Pal Ghai, the covert aim was to produce a stable and conservative middle class to provide a bulwark against African nationalism and the radical policies accompanying it. Individualisation of land tenure was used to blunt African demands for land redistribution.

The political pay-off of this plan became evident during the Mau Mau revolt of 1952 to 1956. During this period the translation of peasant agriculture through cash crop production and land tenure reform were used to create a landed African gentry (Middle Class) in Central Kenya. This group had a stake in the existing colonial arrangement and acted as a bulwark against revolutionary tendencies. By 1956, the colonial government had put most parts of Central Kenya under individualised tenure without a supporting legislative framework. In 1954, the colonial government had passed the Forfeiture of Lands Ordinance, (No. 11 of 1954), which empowered it to confiscate any land of “…persons leading or organising armed or violent resistance against the forces of law and order”. This was supposed to ensure that those who had joined the armed struggle were disinherited and de-franchised to deter those who were like-minded. The adjudication, consolidation and registration of land without a legal framework was deliberate and concerted to reward loyalists and collaborators and punish agitators and rebels. In 1956, the colonial government promulgated the Native Land Tenure Rules with the sole aim of legalising and legitimising the compulsory acquisitions and illegal forfeitures carried under the Forfeiture of Lands Ordinance, 1954. The rules registered African holdings under absolute title and discouraged co-ownership. In 1959, the colonial government enacted several pieces of legislation including the Native Lands (Special Areas) Registration Ordinance, 1959 to protect the tenure of land that had been expropriated from the rebels and conferred on the loyalists. A mechanism of controlling land transactions in the newly adjudicated; consolidated and registered areas was also introduced.

These land tenure reforms led to a great deal of structural re-organisation in the African society in Central Kenya. The process was carried out when many people were absent either in detention or fighting in the forest. The situation was also compounded by a deliberate policy directive by the colonial government to out-rightly deny children of Mau Mau fighters and sympathisers access to education. The tenure reforms only served the political aims of the colonial government at the expense of many illiterate and ignorant peasants who lost their land to the loyalists and home guards; their relatives or other educated peasants. Many people who were previously accommodated under the African customary tenure system lost their land. After independence, the Native Lands (Special Areas) Registration Ordinance of 1959 was re-enacted into the Registered Land Act, Cap. 63, Laws of Kenya to give the final seal of approval to the massive dispossessions that had occurred in the entire Mt. Kenya region. Many poor people found themselves landless, homeless and without a means of livelihood. They were reduced to providers of cheap labour to the colonial settlers who opted to remain in Kenya as well as the new African landlords.

Thus just before they left Kenya in 1963, the British had managed to create a landed conservative and conformist gentry in Central Kenya. This group was mainly composed of collaborators and home guards to whom the departing colonialists bequeathed the super structure of the state beauracracy such as the provincial administration, local councils, police, mainstream churches and subordinate courts. This group abused its privileged position to appropriate the most arable land and the choicest areas of the emerging urban centres in Central Kenya and other parts of the country. The group also created a patronage system which excluded the common populace in Central Kenya from politics, business and appointments in the public service. Most of them joined the public service as provincial administrators, lay magistrates and clerical officers. They also took over political leadership and the running of mainstream churches and local authorities. These collaborators and their offspring have always benefited from this historical advantage that was granted to them by the colonial regime. They own large tracts of agricultural land and prime commercial properties in urban areas whereas the majority of the poor who participated in the struggle for independence are clutched up into small economically unviable agricultural holdings. The poor majority are forced by their circumstances to become perpetual farm labourers or sell their small holdings and migrate to other parts of the country in search of livelihood. Their progeny are bound in a vicious of poverty which is inherited and passed on from one generation to another and constitute the bulk of the youthful members of mungiki.

The continued hold on political power by the former collaborators and their offspring in Central Kenya has only helped to perpetuate and entrench social inequities unknown to many people outside the region. This is the reality of the social-economic inequalities that prevail in most parts of Central Kenya. It is this social order that mungiki has been seeking to upset, first through religion and culture, and now violently.

The government is clearly divided on the issue of mungiki. The Prime Minister, Right Hon. Engineer Raila Amolo Odinga, EGH, MP is advocating for structured dialogue with the sect whereas some members of the cabinet have openly supported the use of force to decimate mungiki. Just what is the right anecdote to this problem?

At its inception the mungiki sect was basically a communal outfit whose main agenda was the economic emancipation of Kikuyu families that had been forcibly evicted from their homes in Rift Valley Province owing to the political tensions of the late 1980s. Its initial disciples were young people who had lost land; their only means of livelihood in parts of Laikipia and Nakuru Districts. Their families could not go back to their ancestral homes having sold their small holdings and left Mt. Kenya region in pursuit of economic fortunes in the expansive Rift Valley Province. The sect has now graduated from a social cultural religious outfit into a formidable political force in Nairobi, Central Province and parts of Eastern and Rift Valley Provinces. The sect espouses pseudo-communist ideals clothed in socio-cultural epithets of communal justice and equity. This is why it continues to appeal to many landless, homeless and jobless youth. Its members sometimes use violence and threats of use of force to eke out a living by extorting money from farmers and traders in Central Kenya, Nairobi and parts of Rift Valley and Eastern Provinces. I have argued elsewhere that this is criminal and should be dealt with as such.

Anybody calling for the use of force to annihilate mungiki is prescribing a simplistic solution to what is now a complex social problem in the country. Mungiki easily appeals to the landless, homeless and jobless youth. The political class has perpetually taken advantage of their privileged positions to exploit members of the sect and sometimes employ them to provide security for parliamentary and civic candidates during elections. These politicians who also use mungiki to perform unpleasant tasks have never bothered to address the root cause of the social, economic and political grievances of its members.

To suggest that mungiki should be wiped out through the use of force of arms is to imply that the state can use its instruments of force to wipe out the entire stratum of the poor, displaced landless and homeless people in Nairobi, Eastern, Rift Valley and Central Provinces. This position is irrational and untenable under Customary International Law which postulates the raison de etre for the modern nation state. It does not matter how many young people are killed by the police in the name of fighting mungiki; the sect will no die as long as its ideals continue to appeal to the poor and the downtrodden. I have argued in the past that the traditional crime intelligence efforts do not seem to be bearing any fruits with the sect. If anything, indiscriminate extra-judicial killing of members of mungiki have only served to increase the level of complacency, tolerance and sympathy towards the sect by members of the general populace in Nairobi, Rift Valley, Central and Eastern Provinces. The security agencies must therefore adopt new approaches to detect, apprehend and prevent the crimes perpetrated by the sect.

The political class must now demonstrate a genuine desire to address the land question in Kenya as well as the attendant social and economic inequities in the country. The Rt. Hon. Eng. Raila Odinga should create a politico-legal framework to engage mungiki in structured dialogue. He must be ready to tackle and upset the prevailing socio-political and economic order in Nairobi, Central Kenya, Eastern and Rift Valley Provinces. This might include a proposal for radical Constitutional and legal reforms to cater for land redistribution in some parts of the country. The Hon. Prime Minister will need all the energy and the goodwill he can muster to confront the current political, religious and business leadership in these regions who have historically benefited from this highly flawed socio-political and economic order.