Impunity is under siege in Kenya, and  accountability will ultimately win

Friday August 25 2017

By LUIS FRANCESCHI
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“Things are not as bad as they are painted,” a young lawyer told me after visiting a modern arts museum.

“Things are not as bad as they are painted,” I repeat today, to all prophets of doom and people of no hope.

Things may have gone wrong. Yes, we can do better but we must stop playing with our institutions, our systems, our democracy, our elections.

The blur of the moment should not make us lose our historical perspective and the beauty of the gains our country has made.

In 1897, the East African Order in Council was passed by the British colonial government, the first piece of legislation adopted by colonisers.

It opened a never-ending trail of laws in pre and post-independent Kenya.

It established the administrative machinery for the East African region and placed a deliberate emphasis on the basic judicial powers and the establishment of various judicial institutions.

This Order was repealed by the 1902 Order in Council, which shifted the emphasis from judicial institutions to administration.

The 1902 Order subjected the colonial Commissioner to the supreme authority of the Crown, from whom colonial authorities derived their powers.

LOCAL MARGINALISATION

The British Empire carefully tailored a segregated system of laws that kept any possible threat to its supremacy at bay. Thus, Kenya’s colonial domination was characterised by selective and restrictive progress, designed to benefit the Crown and its subjects leading to racial segregation and local marginalisation.

Africans were denied access to basic amenities, land ownership and higher education. Asians, sandwiched between Europeans and Africans, enjoyed larger economic freedoms but few and restricted social rights and privileges.

Kenya took a little more than 60 years from colonisation to independence, in 1963. The post-independence period has witnessed more or less successful improvements in infrastructure, access to health, education and information, urban growth, transportation and an information technology revolution.

All these factors combined have not only accelerated the speed of social change, but also instilled a greater awareness of the centrality of the rule of law as an essential component of national sustainability.

While Kenya served the British Empire for 60 years as a colony, it took half this time, only 30 years, to transition from dictatorship to more meaningful multiparty politics in 1991.

In 2002, slightly over 10 years later, power was peacefully transferred for the first time in the country's history, through a democratic election, to an opposition president-elect.

'UNCOMFORTABLY ACCOUNTABLE'

Seven years later, a new draft constitution was presented to the public and a new Constitution adopted in 2010.

In 2013, county authorities were elected for the first time and a devolved government system became irreversibly entrenched in the country’s social structure.

In 2017, when the general election took place, the opposition alliance, also known as the National Super Alliance (Nasa), felt tempted to call for mass action but Kenya had changed; the mood in the country, and within the alliance itself, was different from 2007.

The opposition alliance opted to use the legal and institutional means provided for by the 2010 Constitution and challenged the election results before the Supreme Court.

Undoubtedly, the rule of law has slowly, invisibly and persuasively taken centre stage. The rule of law matters in Kenya.    

The fact is that the rule of law keeps evolving rapidly, the changes seem dizzying and it may not be possible to predict how further social change will accelerate in Kenya.

Social media, the courts and greater financial inclusion are making the Government uncomfortably accountable.

ENTRENCHED CORRUPTION

If this momentum is maintained, our corrupt institutions and entrenched impunity will give in and fall apart.

It is the task of thinkers, scholars and policy architects to build sustainable foundations for social change. Their writings give meaning, coherence and direction to the dizzyingly fast social change that Kenya, and Africa at large, is experiencing.

Without hatred and negative ethnicity we will make a difference. Despite mismatched expectations, the lost hopes of many, entrenched corruption and all our afflictions, Kenya is and will continue to be a great country. Social changes are accelerating and our history proves it.

Let us focus on education and on issues, not ethnicity. The more our leaders focus on ethnicity, the slower social change will come and the more our democracy will suffer.

Negative ethnicity is not the way, no matter how appealing it may look at first sight.

Dr Franceschi is the dean of Strathmore Law School. [email protected]; Twitter: @lgfranceschi