Louise Edwards
Programme Officer – Access to Justice (East Africa)
Commonwealth Human Rights Initiative, New Delhi

The United Nations Special Rapporteur on extrajudicial, summary or arbitrary executions, Professor Philip Alston, presented his detailed report on Kenya at the recent 11th Session of the UN Human Rights Council.  In an extraordinary week of political maneuvering, reinforcing the internal tension that plagues Kenya’s Grand Coalition Government, the Kenyan delegation responded with an oral statement to the Council that contradicted their earlier written response. Having initially denied Professor Alston’s accusations of the widespread and systematic use of extrajudicial killings by the Kenya Police Force, the delegation conceded that there is a problem, but stopped short of acknowledging Government complicity.

The proceedings and outcomes at the 11th Session have received much local and international press.  Now, two weeks later, the focus must shift to action taken by the Kenyan Government to address the issues raised by Professor Alston and the fall out from the publication of his report, which included the killing of two human rights defenders that had previously cooperated with his mandate.  Despite the eventually positive response from the Kenyan delegation in Geneva, early signs of action are not necessarily promising.

Professor Alston’s report articulated what concerned local and international organisations have been saying about the Kenya Police Force for many years and which the Government failed to acknowledge until their oral statement to the Council – that extrajudicial killings are part of the policing landscape in Kenya. The oral statement also contained a public acknowledgement of Kenya’s weak police oversight mechanisms, the need to establish a local independent police commission and assurances that no human rights defenders would be intimidated or harassed as a result of their cooperation with the UN Special Procedures mandate-holders.

Nevertheless, it remains to be seen whether the promising outcomes in Geneva will translate into credible action in Nairobi.  Successive promises of reform articulated in a number of strategies and processes over the past 10 years have not been completed or sustained by the Kenya Government.  Kenyans continue to be policed by an organisation that lacks sufficient accountability structures, fails to protect or uphold basic human rights and is continually subject to illegitimate political interference.  Millions of dollars have been invested in the development and publication of commission reports, task force findings and reform strategies without any genuine steps by the Government to implement systemic reform.

The concerning state of policing in Kenya has received significant national and international attention over the past 18 months.  The police response to the 2007 post-election violence brought the issue of political partisanship, impunity and brutality to the fore.  The Waki Commission report into the violence strongly recommended comprehensive reform of the Kenya Police Force and Administration Police and Professor Alston’s report reinforced the brutal and corrupt practices that have been permitted to flourish by the unreformed, colonial policing model. 

Police reform is a daunting and long term process.  It requires substantial law reform, a radical shift in policing culture from one of impunity to accountability and the restoration of trust between police and the community.  None of these urgent reforms will happen in Kenya without the political and financial commitment of the Government to undertake reforms of this scope.  The recent establishment by the President of a special Police Reform Task Force represents a positive step towards delivering credible advances.  However, the Government must translate the Task Force’s recommendations into actual reform that goes beyond improving operational capacity to address governance, accountability and legal structures.  Otherwise the Task Force, for all its good intention, will become another failed reform vehicle.

Drawing on the previous recommendations and those foreshadowed to appear in the current Task Force findings, the Government should implement the following minimum reforms:

• Constitutional and legislative amendments that clearly separate the operational control of the police from the direct control from the political Executive and provide for transparency in monitoring police performance and conduct,
• Strengthening internal and external oversight mechanisms, including the enactment of legislation and budgetary allocation to give full effect to the Police Oversight Board plus the establishment of an independent complaints mechanisms,
• Establish a clear demarcation between the role of the Kenya Police Force and the Administration Police,
• Improve police human rights training and resourcing to strengthen human rights compliance and operational effectiveness in the prevention, detection and investigation of crime, and
• Establish clear legislative guidelines on the use of force, torture and adherence to basic due process that accord with Kenya’s existing obligations under international law.

If the Government is serious about reforming the police, a commitment to implementing past and current recommendations is not enough.  It must also take immediate steps that both demonstrate its firm commitment to reform and restore public confidence in the reform process.  A positive first action should be the investigation, prosecution and punishment of those police officers who commit or acquiesce to illegal acts including, but not limited to, those responsible for the 2007 post-election violence and the perpetrators of extrajudicial killings.

Other immediate steps must include measures to implement the Government’s guarantee of protection to individuals who have been intimidated or subject to retribution for their cooperation with the UN Special Procedures mandate-holders.  Human rights defenders, including members of the Kenya National Commission on Human Rights have been subject to threats and some have been forced to flee Kenya.  The high profile execution of two prominent human rights defenders, who cooperated with Professor Alston, and the failure by the police and Government to identify those responsible, highlights the inadequacy of protection and security for human rights defenders.  While Kenya has a witness protection programme, reform is urgently required to ensure the integrity of its internal processes (including accountability, Executive control and information storage and sharing) before those who are most in need of protection will have confidence in the systems that are designed to deliver it. 

The 2007 post-election violence, followed by the findings in Professor Alston’s report, and the tragic consequences for human rights defenders who cooperated with his mandate, have kept the problems with Kenyan policing firmly in the international spotlight.  Whether the political will to commit to genuine reform is present in the Grand Coalition Government remains to be seen, but what is clear to the international community is that the need for police reform is more crucial than ever.

The Commonwealth Human Rights Initiative (CHRI) is an independent, non-partisan, international NGO working for the practical realisation of human rights in the countries of the Commonwealth.
www.humanrightsinitiative.org

By Kalundi Serumaga
kalundi@yahoo.com

While trying to subdue the indigenous tribes of western Europe, the Generals of the conquering Roman army were often confounded by the resilience of the natives on the battlefield. As a response, they developed the tactic of declaring truces and then sending lavish gifts across the lines to some of the native commanders, while leaving out others. This would sometimes lead to in-fighting among the natives as mutual suspicion developed, which the Romans would then militarily exploit.

The dust kicked up during the controversy over whether or not Buganda should accept the promised 2 billion shillings (of which a down-payment of 350 million was immediately wired) from the National Resistance Movement (NRM) government, is just beginning to settle. Inside and outside Buganda, there was a strong division of opinion. One kingdom got more than the others that got something. Most got nothing at all. Maybe history was being repeated.

This was understandable. There are many things about the promise that did not make sense, to the extent of obscuring those aspects of it that did.

Questions were raised as to why only three out of Uganda’s numerous officially recognised “cultural institutions” had been selected for this largesse. In addition, why having a “cultural leader” became the basis for being considered for the cash grant. Furthermore, it was unclear why Buganda was offered twice as much as the 1 billion shillings that were promised to Bunyoro and Busoga respectively.

Even more complicated was the central government’s declaration that the money was to go towards “improving agriculture” in the areas concerned. In the wake of the problem Uganda has had with NAADS, as well as the silent death of the Plan for the Modernisation of Agriculture (PMA), this was truly mystifying: what were to be the actual terms? Was this to be a top-up to the paltry 4.1% of the National Budget that Uganda currently spends of the agricultural sector, or a substitute for it? Was there to be a proportional reduction of the national budget allocation to those districts that fall in the areas slated to receive the grants?  How was the agricultural situation in Buganda deemed to be in twice as much need as the other two Kingdoms, warranting a grant twice as big as the others? And again, what about other areas in the country not eligible for this grant; do they not have the need to improve agriculture?

There are even constitutional interpretation problems, stemming from President Museveni’s previous utterances to the effect that these cultural institutions “don’t exist”, or if they do, it is only as “backward chiefs”, of no importance to the national development agenda. To whom then, is his government now handing over significant amounts of public money?

What we are in fact witnessing has very little to do with beans and fertiliser as such, and is in fact simply a further development in the twists and turns of a very protracted and troubled negotiation process (or should one say power struggle?) between Buganda and the very NRM that it helped bring to power.

For the last 16 years, the NRM government has been desperately trying to extricate itself from the huge political setback it suffered when Ganda post-war militancy forced it to hurriedly design and pass the Traditional Rulers (Restitution) Assets and Properties Bill of 1993 (popularly known as Ebyaffe Bill) into law. This Act commits the state to recognising the existence of Buganda -as well as other such entities, but more critically, it re-introduces into law the principle that Buganda’s has a right to the property seized from her in 1967. This is the crux of the matter: the central government is legally obliged to hand over valuable and significant amounts of the real estate to a rival political centre. No central government will ever do this willingly, as it undermines their own power, and overturns the entire logic behind the efforts of Frederick Lugard, Governor Cohen and finally Milton Obote in destroying native identity so as to build the Uganda state.

The fact that the NRM went so far as to return native identity to a legal footing (something that even Idi Amin managed to dodge way back in 1972) shows the extent of their opportunism borne of a hunger for power. The fact that they now seek to dodge laws they themselves made about it, shows just how desperate that opportunism has made them.

This a problem that cannot be solved, and will contribute significantly to the approaching fall of the NRM  regime, just as the British, Obote and Amin regimes came and were seen off by the natives they found in place.

This current handout therefore reminds one of the situations of a thief trying to flee with his loot while being pursued by an angry mob, and so keeps throwing part of the stolen goods over his shoulder in a bid to slow them down.

This puts the actual owners of the stolen goods in a dilemma: do they leave the dropped goods to the mob and keep on after the thief, or do they try to first rescue what has been dropped also, and then continue the chase?

This is exactly where the matter has been stuck for 16 years: Buganda and Uganda have not been able to establish and follow a clear negotiation process, as called for by the Ebyaffe Act. The problem is that the central government/NRM never really expected these “damn natives” to still be asserting their identity after this long, and so never imagined they would be expected to actually start handing over property. We have therefore seen President Museveni buying time by keeping proceedings vague and only making concessions if he thinks he will gain from them in the political short term. This is actually standard NRM procedure when faced with a determined opponent: buy time with “negotiations”, while frantically working behind the scenes to change the material facts of the very issue under discussion. If you have to actually make a real concession, you then try to portray it as an act of goodwill on your part, that demonstrates how serious you are with the talks. So while then Katikkiro Joseph Mulwanyamuli’s team engaged in nearly 11 years of diplomatic “heavy lifting”, the NRM began making fundamental legal and demographic changes to the very land and properties that are under the said negotiations. Examples of this are: donating Buganda’s land to “investors”; bringing non-Baganda newcomers as settlers to these areas; introducing decentralisation thereby creating new districts whose “land boards” then claim and sell Buganda’s land; using the 1995 constitution-making process to “constitutionally” remove Kampala from Buganda and most recently, creating new “Kingdoms” within Buganda.

The purpose is to ensure that by the time NRM sits down to serious conclusive talks with Buganda, there is actually nothing left physically to talk about. This is what Mengo has worked out and explains their growing anger. Ugandans have seen this before. This is exactly how the NRM/A prevaricated for six months during the 1985 Nairobi Peace Talks, so that by the time they reached an “Agreement” with the Okello Junta, they had changed themselves from a beaten and retreating army of barely 4,000 soldiers to a British-sponsored mercenary force of 40,000, and promptly stormed Kampala. Similarly, for over a decade, the NRM continually put off the day when the country would return to multi-partyism, so that by the time it did, all the key national policy issues, particularly around macroeconomic policy, were already cast in stone, leaving the new opposition with little of real substance to debate in parliament.

Today, the living conditions for people inside and outside Buganda remain dire. As a result, it is hard for any leader to continue rejecting offers of cash – however unprincipled the offer – while being unable to deliver alternatives to that same population, even though the one offering the cash is the same person creating the obstacles to better living.

Therefore, despite all the NRM time-buying manoeuvres, as well as rent arrears totalling 900 billion shillings, the Katikkiro of Buganda has found himself being the defender of the idea of receiving a gift of money from somebody who is legally in debt to him by a much larger amount.

The NRM also hopes for a few “side-benefits” from this cash grant. First, is the anticipated bolstering of the notion that “once again”, Buganda was being “favoured” over other equally deserving Ugandans by a central government, thus building greater resentment of Baganda by other Ugandans. Second was the expectation that it would create irreconcilable divisions among the many hundreds of activists and campaigners who work for Buganda on a voluntary basis, and are therefore not impressed by the argument that without money, no progress can be made. The third anticipated “side-benefit”, would be to make some southerners and westerners as a whole to welcome being favoured over northerners and easterners (who only got elastic pangas and rotting beans to help them recover from the wars and floods), thereby encouraging them to see the NRM as their friend and benefactor. After all, the 2011 elections are nearly here.

Most importantly, there is the hope and intention of the NRM to revive the Regional Tier proposal. A further probable incentive here is the rumoured discovery of precious minerals, including oil, in one of the exploration blocs located in Buganda. The NRM is perhaps now keen to lock the Kingdom into a clear resource-controlling constitutional arrangement such as the regional tier, well before the discovery is announced. After all the problems Buganda has caused them over just land, perhaps the NRM  leaders are now losing sleep at the prospect of having to negotiate oil matters with Mengo.

Buganda insists that this grant will not sway her from pursuing her wider objectives. It could well be a case of the Luganda proverb: “Nyama ntono, okayana ekuli mu nkwaawa” (roughly translated: before complaining about the smallness of the meat you have been given, first make sure it is firmly in your grasp). Certainly, more than a few harsh words were exchanged among Baganda activists, but this has only served to highlight the importance of recognising success. Those critical of this grant tend to be those campaigners, such as the redoubtable Betty Nambooze, who have galvanised Ganda public opinion through ably articulating a firm and uncompromising line in favour of federation, should actually be credited with creating the pressure that has forced the NRM  into such manoeuvring in the first place.

We are probably just at the beginning of this NRM generosity. Cash has been promised for the renovation of Kingdom properties, as well as clearing some rent arrears. It is important therefore that all the important stakeholders: people from outside Buganda who are watching in amazement; the activists who recognise an attempted bribe when they see one; and the leaders of Buganda government business to recognise that these manoeuvres will end up strengthening Mengo, not dividing her.

END