Avoidable Goofs Taint Kibaki Legacy

This week, we were treated to an absolute rarity: the Kibaki State House issued a public statement to rebuff claims by parliamentarian Cyrus Jirongo that it was backing the presidential candidacy of Deputy Prime Minister Musalia Mudavadi. It was curious because it is characteristically unusual for the President to engage in public commentary of any sort. Is that not why he was dubbed “the gentleman of politics” before he ascended to the presidency? Is that not why he was accused by Uhuru Kenyatta – when the Deputy Prime Minister was the leader of the official opposition – of being a “hands-off, eyes-off, ears-off, everything-off” President?

The novelty of the State House issuing a public statement to defend its conduct and record will obviously set tongues wagging rather than lead to the closure of this issue. It is like telling Kenyans to stop speculating about the helicopter crash that claimed former Internal Security Minister George Saitoti and his assistant Orwa Ojode. The skullduggery of our murky politics and the tradition of sirikali (state secrecy) have created a situation where Kenyans will invariably among themselves whisper “fire” whenever they see smoke.

This situation could have been avoided. However much it galls Kibaki’s admirers, this is another in a long line of avoidable political goofs that ultimately undermine his political legacy. Here are a few others. To ascend to the presidency, Kibaki entered into a memorandum of understanding (MoU) with leading politicians at the time. He committed to appoint them to certain political positions and in return they supported his candidature. The MoU stabilized the opposition coalition that would finally trump the independence ruling party KANU at the 2002 general elections. However, soon after being sworn in Kibaki somersaulted and jettisoned the MoU.

His handlers all alluded to the fact that the MoU was unconstitutional in so far as it fettered the President’s constitutional powers to make political appointments as he deemed fit. But their audience was not a judicial tribunal so making legally-tight arguments was hot air. What the MoU had done was underwrite a political agreement between different ethnic chieftains; mitigating the contesting aspirations among them. And as soon as it was abandoned, the political handshake was devalued to zero: a tenuous situation where the constitution had been the key instrument used to perpetrate and protect ethnic dominance and hegemony.

With this, the slow revolt out of the National Rainbow Alliance Coalition (NARC) began. It also sharpened and accentuated ethnic suspicions and distrust, which was only heightened by the second goof of the Kibaki presidency – the domination of his administration by those who were derided as the Mt. Kenya Mafia. It has remained a puzzle why President Kibaki has seemed totally beholden in his appointments to the “power” positions - such as internal security, defense and finance - to members associated with his ethnic group. After all, this is a man whose finishing school included a first class honors degree from Makerere University and tutelage under legendary nationalist the late Tom Mboya.

Third, the Kibaki presidency really goofed in the area of anti-corruption. The poster-scandal of this was Anglo-Leasing. Very senior state officials were caught with their hands in the till through an investigation headed by John Githongo, who had been appointed to spearhead the fight against corruption by President Kibaki. Instead of serious investigations being launched and prosecutions undertaken to cleanse the regime, it was Githongo who had to hot-foot it out of the country for fear for his life. He was accused of being an ethnic Judas.

Then there was the political goof related to the Bomas of Kenya constitutional reform process. One of the campaign promises that NARC had made was that Kenya would have a new constitution within one hundred days of its ascent to power. But the sweetness and allure of unabridged political power seemed to get the better of the Kibaki administration and it began to behave like the Moi one preceding it: attempting to preserve intact the imperial presidency that the old constitution had so firmly entrenched. This led to the scuttling of the Bomas constitutional review process with those associated with the President walking out of the process. They initiated their own and adulterated the Bomas draft through what were subsequently labeled the Kilifi and Naivasha drafts. The final adulterated draft received a massive NO vote in the 2005 constitutional referendum in what was also seen as a referendum against the Kibaki establishment.

The fifth goof happened in March 2006. Masked, heavily-armed men raided the offices of the Standard Newspapers. The truth behind this raid has never been fully revealed. However, some accounts state that the state was terribly unhappy that the newspaper had reported a secret meeting between Kibaki and Vice-President Kalonzo Musyoka, who was then a leading opposition figure. Other accounts state that there was an expose in that day’s edition related to drug-trafficking in Kenya and touching very senior state officials and political activists enjoying state protection – the untouchables. The late John Michuki who was then minister for internal security would memorably comment: “If you rattle a snake, you must be prepared to be bitten.”

The sixth goof relates to the now-disbanded Electoral Commission of Kenya. Close to the 2007 elections, the tenures of a number of commissioners were at an end. Although the constitution allowed for the President to appoint whomever he wished to that commission, there had been an-ongoing tradition where opposition political parties nominated some of the commissioners. President Kibaki would have none of this; which was paradoxical given that he had been at the forefront of initiating this very tradition in the late 1990’s while in opposition to KANU. In the ensuing elections, the Electoral Commission of Kenya bungled the elections: accused by the opposition of deliberately rigging Kibaki back to power in the shambolic elections of 2007.

In post-election Kenya, President Kibaki’s goofs relate to attempts to undermine the democratic infrastructure of the new constitution by attempting to make unfettered appointments to state offices despite the lack of constitutional power to do so. They also relate to attempts to undermine the International Criminal Court process in Kenya. All these have been avoidable and can be redeemed; however, no one seems to be telling the President.

Mugambi Kiai is the Kenya Program Manager at the Open Society Initiative for Eastern Africa (OSIEA). The views expressed in this article are entirely his own and do not reflect the views of OSIEA