National Accord: 10 years on, we face a new political crisis

On the occasion of the 10th anniversary of the signing of the agreement that brought an end to the post-election violence of 2007/8, it is useful to reflect on the journey that Kenya has travelled, even though the country still faces an increasingly complicated future.

On February 28, 2008, the Party of National Unity and the Orange Democratic Movement (ODM) under the mediation of the Kenya National Dialogue and Reconciliation (KNDR), signed an agreement to end the political violence that followed the disputed December 2007 elections.

This week, the country marks the 10th anniversary since the signing of that agreement.

More popularly known as the National Accord, the agreement established the office of Prime Minister, thus bringing the ODM into government, supposedly, on an equal basis as the PNU, which had been declared winner in the disputed election.

PRIORITY AREAS

As a result of the accord, the ODM leader Raila Odinga became the Prime Minister and his party dropped the non-recognition of Mwai Kibaki who had been declared re-elected as the President.

Besides the National Accord, the KNDR produced other agreements, including one to address the drivers of the violence, which had necessitated the mediation in the first place.

Six areas formed the subject of agreement in this regard, including constitutional, institutional and legal reform; land reform; the need to address poverty, inequality and regional imbalances; the need to tackle unemployment among the youth; the need to deal with national consolidation and unity; and, the need to promote transparency and accountability and to deal with impunity. 

The KNDR provided an implementation framework on the long-term issues that had been agreed on.

The two commissions of inquiry, Kriegler and Waki, constituted the agreed approach for addressing, respectively, electoral justice and accountability for crimes committed during the violence.

WAKI COMMISSION

The report of the Kriegler Commission provided confidence for the brave decision to dissolve the maligned Electoral Commission of Kenya.

Also elements of the report eventually informed the content of the provisions on elections, when Kenya wrote a new Constitution in 2010.

The legacy of the Waki Commission was equally consequential, eventually anchoring the involvement of the International Criminal Court in Kenya’s affairs when, contrary to the recommendations of the commission, the government failed to establish a domestic mechanism to bring accountability for the crimes committed during the violence.

Dealing with the humanitarian crisis that resulted from the violence was the subject of an earlier agreement reached during the mediation.

This agreement was couched in terms of providing humanitarian assistance to persons who had been affected by the violence.

These have come to be known as Internally Displaced Persons (IDPS).

KOFI ANNAN
At the end of the mediation, mechanisms to drive and to monitor the implementation of the various agreements were created, including the so-called Ministry for Special Programmes, which became the focal agency for the delivery on IDP issues.

In addition Kofi Annan, the chief mediator, maintained a visible presence in Kenya, meant to encourage compliance with the agreements.

While the new coalition government was mostly fractious, the period until 2013, when Kenya held its next elections, witnessed a largely good-faith attempt to implement the various KNDR agreements.

It is during this period that the country enacted a new Constitution, incorporating many of the proposals made by the KNDR, including those on security sector reforms, and reforms in the management of elections.

Engagements aimed at resettling IDPs also began and the establishment of a truth commission offered a chance for addressing historical grievances that were regarded as the structural drivers of the country’s political instability.

ICC CASES
The 2013 elections were to prove a turning point from the path to implement the various KNDR agreements.

To begin with, the fact that the new Jubilee leadership was facing cases before the KNDR-supported ICC meant that the dialogue process had now been turned on its head.

Even before they took power, Kenya’s new rulers had broken up with Kofi Annan, denying the dialogue process the prestige that his presence had formerly brought and, with that, removing any political pressure towards implementation.

Without any formal decisions, and with no clear substitutes, the new Jubilee administration ended up bringing a unilateral end to the keenly-negotiated KNDR process.

Further, the 2013 elections provided a major shock to assumptions on which the reforms undertaken up to that point had been predicated on.

The manner in which the Independent Electoral and Boundaries Commission managed the elections was not materially different from the bungled 2007 elections.

SUPREME COURT

Further, the new Supreme Court, until then the source of significant public hope, handled the resulting electoral dispute in much the same way as the maligned judiciary, which the court had been established to supplant.

There followed delays before the new government received, in circumstances contrived to maximise on controversy, the report of the truth commission.

In the months that followed, the new government prevaricated on the implementation of this report, and further reference to the report eventually died.

Once in power, the new government also embarked on a process of undermining the security sector reforms, which has seen the enactment of legislation, and the adoption of practices, which are calculated to denude the National Police Service Commission of its autonomy.

In this context, the vetting of members of the police has disappeared from the public limelight.

CRISIS
Kenya comes to the 10th anniversary of a troubled period while facing a new political crisis.

The worst case scenario is that the country could end up with the same problems as 10 years ago, when a monumental political crisis necessitated a dialogue process.

While in 2008 there was significant belief that the dialogue process could result in a better future for Kenya, the many reversals that have been witnessed in the implementation of clear agreements reached during the dialogue process have led to a loss of innocence, and even those calling for dialogue no longer see it as a magical solution.

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