News 2008


Breaking Kenya's Impasse: Chaos or courts?

January 25, 2008

By Dr. Peter Kagwanja

KENYA’S 2007 ELECTION HAS PRECIPITATED THE COUNTRY’S WORST CRISIS SINCE THE ABORTIVE AUGUST 1982 coup by the Air Force: 700 deaths, nearly 300,000 others displaced, an estimated 60 billion Kenya shillings ($850 million) and continuing instability which has undermined the country’s international image and rapidly eroded donor confidence.

Typically, international observers viewed Kenya through the prism of other failed states in Africa, and proffered the obvious ‘liberal peace’ solution: peace talks leading to a power sharing deal between the various ‘warlords’ or elites. As a result of this flawed diagnosis, Kenya has witnessed a parachuting of international mediators (Desmond Tutu, John Kufor and Kofi Annan) to broker yet another peace deal in a troubled continent.

But the Kenyan crisis is not in the same league as the crises in other parts of Africa like Somalia or Darfur--although it may get there if the right prescription is not provided as is happening now.

Kenya’s crisis is uniquely and squarely a crisis of democratic transformation typically experienced by countries—even in mature democracies--facing a closely contested election! Despite the high level of post-election violence in parts of the country, the crisis requires a democratic solution, not conflict resolution, not deals by ethnic elites. Kenya’s Attorney General, Amos Wako, and the Chairman of the Electoral Commission, Samuel Kivuitu categorically pointed to the judicial system as the natural route to resolve the country’s electoral dispute. The ‘liberal peace’ route can potentially cripple the country’s capacity to fall back to its institutions such as courts and other arbitration institutions to deal with what are normal challenges of pluralist democracy.

What Kenya is witnessing is an election dispute like the one that engulfed America in 2000 when the Democratic and Republican party candidates—George W Bush and Al-Gore-- disagreed on the process and results. While elders like Jimmy Carter and James Baker stepped in to cool tempers on both sides, no one was crazy enough to prescribe peace talks between George Bush and Al-Gore as a lasting prophylaxis for America’s democracy. All agreed that America’s courts system was the way to go—and American courts had their day, and their say.

Why mediation and not courts for Kenya? The prescription of elite deals as solutioin to Kenya’s crisis unveils the prevailing cultural biases inherent in relations between civilizations in the globalizing world.

Conflicts in Africa are viewed as generically pre-modern, and ill-suited for modern solutions as in civilized nations. As such Africa has become a growth industry for peace mediations, which are typically set for conflicting nations or peoples presumed not to be under common institutions.

Mediators have a role to reconcile local communities torn by violence and to calm and heal the nation. But what Kenya urgently needs is a chance for its courts to pronounce themselves on the way forward. Certainly, chaos in all its guises is never the way out, and should never be used as a subterfuge to reject the path civilized nations take to deal with disputes arising from the democratic process.


The international community including the UN, the US, the EU African institutions and leaders should now insist on the courts as the most credible and sustainable way of breaking the impasse in Kenya, and endeavor to provide the needed support to ensure the impartiality and expediency of the courts in dealing with the election dispute.

The Opposition Orange Democratic Movement should halt all its plans to go to the streets and use mass action to redress the grievances arising from the election, but instead seek redress within the judicial system of Kenya.

The government and the Party of National Unity should offer guarantees that the courts will deal with the dispute within reasonable time—no more than three months. It might be necessary to call in judges from other commonwealth countries to provide the necessary neutrality and restore the confidence of the parties to the dispute in the courts.

The Government and the opposition should be prepared to abide by the final verdict of the courts: a recount, a re-run, or a victory for either of the parties.

The government should firmly reassert the rule of law and deal once and for all with the evolving culture of impunity relating to ethnic violence by arresting and bringing to book all perpetrators and inciters of ethnic cleansing, including considering taking some of the most egregious cases like burning people arrive to the International criminal court.

Parliament should set aside a post-violence reconstruction and rehabilitation programme and providing funds to aid resettlement, reconstruction of rebuilding of destroyed homes and property.

Kenyans must re-commit themselves to the vision of a multi-ethnic vision based on civic rather than ethnic citizenship, sanctity of law and public order, and the courts as the supreme arbiter in all disputes, including election ones.

This report was researched and written by Dr. Peter Kagwanja with input from API researchers in Nairobi and Pretoria. It is based on research carried out between August 2007 and January 2008.