Cabral Pinto: Willy Mutunga Under Cover

For over 30 years, Willy Mutunga has blazed the trail in starting many important public conversations about remaking Kenya and the wider world into a better society. As a public intellectual, he has consistently challenged convenient stereotypes in an effort to bring down the social barriers erected by fear and ignorance, and led in persuading individuals and communities to re-examine widely held prejudices and to start difficult dialogues. Between 2006 and 2011, Mutunga wrote a weekly column in the Saturday Nation. It is from these contributions, under the pen name Cabral Pinto a combination of the surnames of the two African ideologues he greatly admired that the 146 articles in this volume are selected. The clarity of Willy s moral voice is unmistakable on a broad variety of themes, ranging from exhortations for an alternative leadership that would deliver a human rights state, to an unapologetic call for mass action as a peaceful way to bring change. This collection by Cabral Pinto is the story of Kenya s long democracy struggle, told by a pro-democracy activist.

• Language: English
• Publisher: Vita Books
• Release date: Jan 31, 2022
• ISBN: 9789914992182

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FOREWORD

The Mystery of Cabral Pinto

I don’t remember where it started, but I recall where it ended – appropriately on Nairobi’s Kimathi Street, outside the Nation Centre.

The street is named in honour of Dedan Kimathi Waciuri, who was a military and spiritual leader of the Mau Mau War against British colonial injustices in Kenya between 1952 and 1960. He was also the military leader of the Kenya Land and Freedom Army with the rank of Field Marshall. Kimathi is one of Willy Munyoki Mutunga’s heroes.

Mutunga was then the Ford Foundation Representative for Eastern Africa, based in Nairobi. Kenya was in the throes of making a new constitution that would eventually be passed in 2010. Mutunga’s activist itch was becoming too much, and he wanted to scratch it. However, his position at the Ford Foundation didn’t allow him to get into the ring and slug it out as he would have in past.

Willy had been one of the youthful radical lights of the Kenyan pro-democracy movement of the 1970s, 1980s, and 1990s. He paid a high price for it. As both the repression by President Daniel arap Moi’s government ramped up, and the opposition to it snowballed, Willy was accused of being a member of an underground organisation known as the December Twelve Movement and involvement in the production of its publication, Pambana. The state claimed that incriminating material had been found after a search of Willy’s house. On June 12, 1982, he was charged with being in possession of a ‘seditious’ leaflet bearing the headings JM Solidarity Day and Don’t Be Fooled: Reject these Nyayos. The charges were withdrawn and he was subsequently detained without trial on June 29 under the Preservation of Public Security Act, a colonial relic. He was also dismissed from his job at the Law faculty of the University of Nairobi.

Released on October 20, 1983, Willy set up his own legal firm and practised in the areas of criminal law, landlord and tenant. He went back to giving pro bono legal aid and advice services. In 1989 he went to Canada where he studied for his PhD in Law and, unsurprisingly, joined the Kenyan democracy movement that was active abroad. While in Canada, he also founded the Kenya Human Rights Commission with Maina Kiai, Makau Mutua, Kiraitu Murungi, and Professor Peter Kereithi, a Kenyan journalist. He returned to Kenya in 1991 and started where he left off. He was elected the Vice-President of the Law Society of Kenya and then President in 1993-5. He joined other leaders in the pro-democracy movement called National Convention Assembly/National Convention Executive Council that, in no small measure, helped the continued agitation for a new constitution and the dethroning of the repressive Moi-KANU government.

The first attempt to make a new constitution in 2005 had turned into a fiasco, and the reformists and progressives, including Willy, opposed it. It was defeated in a referendum.

Frightened by the mass anger of the 2007/2008 post-election, the Kenyan political class conceded quite some ground in the 2010 constitution do-over, but the pushback by the conservative forces was fierce. Willy was coming under pressure; he had been involved in the democracy hunt, now that the carcass was being carved out, he was missing at the table.

Against that backdrop and after several discussions, we agreed that at a minimum he could fight the issues in a weekly column in the Daily Nation, Kenya’s leading independent newspaper. The next problem to overcome was the byline since he couldn’t write in his name because of the restrictions of his Ford Foundation employment. I was an Executive Editor at the Nation Media Group (NMG) and went to see the Editorial Director, Wangethi Mwangi, who was also an acquaintance of Willy, to explore possibilities. NMG’s approach was to allow the right to write opinion pieces under assumed names in exceptional cases, and in its long history, it had done so less than a dozen times.

Wangethi eventually agreed. Additionally, only he and I would know the identity of the writer. I went back to Willy to discuss the terms. That day on Kimathi Street, we were tackling the vexing issue of the pseudonym. Because it had to have meaning, the task turned out to be quite hard. I suggested to Willy that perhaps we could combine the names of two of his heroes; socialist Kenyan journalist and nationalist Pio Gama Pinto, who was assassinated in 1965, and Guinea-Bissau and Cape Verdean revolutionary leader Amílcar Lopes da Costa Cabral. And, so, the pseudonym Cabral Pinto under which the articles that appear in this volume were authored was born.

Willy, always troubled by his conscience, subsequently came clean and apologised to the Ford Foundation, but the rebel in him wasn’t extinguished. After his appointment as Chief Justice in June 2011, he couldn’t resist the itch again and wrote a few articles for the Nairobi Law Monthly under the pseudonym of Chanan Kapila, a composite of two brilliant South Asian Kenyan jurists; the late Chanan Singh and the late Archroo Kapila.

Chanan Singh went on to become a judge of the High Court of Kenya. He is also famous for defending Senior Chief Koinange in the coffee case when he was prosecuted by the British colonial administration for growing the crop. Kapila was an adept criminal lawyer. He was, with Dennis Pritt and others, one of the lawyers who represented the leading six Kenyan nationalists who were arrested in 1952 by the colonial government. They came to be famously known as the ‘Kapenguria 6’, and comprised Jomo Kenyatta, Bildad Kaggia, Paul Ngei, Achieng’ Oneko, Fred Kubai, and Kung’u Karumba.

Cabral Pinto and Chanan Kapila thus joined a distinguished pantheon of world and African radical writers, leaders, intellectuals, and activists -- past and present. One such, Maxim Gorky, is a pen name of Alexei Maximovich Peshkov, Vladimir Lenin’s revolutionary comrade who wrote My Childhood, My Apprenticeship, and My Universities, and his best-selling novel, Mother. In Tsarist Russia, it would have been a safe option. George Elliot who wrote The Mill on the Floss was a woman. She knew that if she disclosed her real name she would never be published, the fate of many women writers over the ages.

Oumou Armand Diarra is the pseudonym of Malian writer Oumou Modibo Sangare. She is the author of several articles about the struggle of women in Africa and Mali. There was Regina Gelana Twala, an eSwatini feminist activist, writer, researcher, evangelist, and liberation leader.

She was the first Black woman to graduate from the University of the Witwatersrand, after which she became a prolific researcher and political activist, helping co-found the Swaziland Progressive Party. Twala contributed newspaper columns to several publications in then-Swaziland, writing under pseudonyms, including Mademoiselle, Gelana, RD Twala, Reggie, and Sister Kollie.

Flora Nwapa was a Nigerian writer who has been described as the mother of modern African Literature. She was the first African woman novelist to be published in the English language in Britain and achieved international recognition with her first novel Efuru in 1966. Flora Nwapa, though, was a pen name, derived from her formal name Florence Nwanzuruahu Nkiru Nwapa.

Algerian novelist, radical feminist, and filmmaker Fatima-Zohra Imalayen was known by her pen name Assia Djebar.

And Cornelia Hilda Kühn is an Afrikaans writer, in South Africa, known under the pen-name Corlia Fourie.

For these writers and activists, a pseudonym is a weapon to subvert barriers or a shield against an oppressor’s wrath. Or, sometimes, to protect people and institutions they care about, so as not to drag them into a fight that they hadn’t signed up for.

And so it was with Willy. This collection by Cabral Pinto is the story of Kenya’s long democracy struggle, told by a pro-democracy activist who refused to be silent, when he couldn’t momentarily speak his truth in his voice.

Charles Onyango-Obbo

June 2022

INTRODUCTION

For over 30 years, Willy Mutunga has blazed the trail in starting many important public conversations about remaking Kenya and the wider world into a better society. As a public intellectual, he has consistently challenged convenient stereotypes in an effort to bring down the social barriers erected by fear and ignorance, and led in persuading individuals and communities to re-examine widely held prejudices and to start difficult dialogues.

After Willy joined the Ford Foundation’s Regional Office for Eastern Africa in March 2004, he was careful that his public advocacy should not be construed as an extension of his grant-making work, and so did not write in the newspapers as had been his habit for a couple of years. The period between 2006 and 2011 was, however, significant in many respects because Kenya was in the throes of negotiating a new constitution and had a singular opportunity to install a new leadership. The fallout from those discourses resulted in the putative 2007 elections, and the violence that attended it and the mediated coalition government that would deliver the Constitution of Kenya, 2010 – the culmination of a 30-year struggle. It would have been remiss of Willy to sit out of those conversations when he had given his entire adult life to efforts to create the moment at hand. The Ford Foundation’s employees complied with the internal policy on speaking engagements and writing articles for publication in scholarly journals, but contributions to newspapers were a gray area, hence Willy’s decision to write under a pseudonym*.

Between 2006 and 2011, Willy wrote a weekly column in the Saturday Nation, the second highest circulation weekly newspaper in Kenya with an online readership running into millions. It is from the consistent weekly contribution between October 2006 and June 2011, under the pen name Cabral Pinto – a combination of the surnames of the two African ideologues he greatly admired -- that the 146 articles in this volume are selected. The clarity of Willy’s moral voice is unmistakable on a broad variety of themes, ranging from exhortations for an alternative leadership that would deliver a human rights state, to an unapologetic call for mass action as a peaceful way to bring change. He spoke up volubly for the marginalised and the excluded, particularly on the rights of gay and intersex persons, boldly challenging the public moral hypocrisy around differentiated treatment of people on the basis of race, ethnicity and sexuality in the context of human rights. He would courageously speak truth to power at home and abroad when the Grand Coalition government was in office. His big picture profiles of issues centred discussions on nationalism and patriotism, but also celebrated heroes and heroines who were still living as they simultaneously memorialised those who had passed on.

Two epochal moments mark this period: the formation of the grand coalition government, a consociational political arrangement that de-emphasised the winner-take-all electoral system, and the passage of the new constitution – the achievement of two of Willy’s important social goals. Because he contributed to the debates around these issues without knowing that he would offer himself for the position of Chief Justice and be subsequently appointed into that role under the Constitution of Kenya, 2010, it is possible to see his honesty as a writer.

Willy wrote in defence of the debate on then Makadara Member of Parliament Gidion Mike Sonko wearing a stud on his ear in a prescient premonition of the questions he would face at his own parliamentary vetting over the stud in his ear. Willy was raised Protestant, and converted to Catholicism before becoming a Muslim, and so had the confidence to engage religious hypocrisy with the benefit of knowledge and lived experience.

The range of subjects reflects Mutunga’s intellectual pedigree, and the depth of their treatment is a vista into his creative Marxist grounding. His public posture, which encouraged ruthless criticism as a necessity for intellectual growth, as evidenced by some of the responses he received from critics, enabled him to turn a personal weekly column into a forum for fostering robust debate. These debates continue to date, and Willy’s thoughts and voice on them remain relevant, as Charles Onyango-Obbo attests in his foreword to this collection.

The articles in this volume are clustered into 12 thematic groups for ease of readership, but in each section, they are arranged chronologically by their original date of authorship or publication to allow an appreciation of the writer’s consistency as his ideas developed over time. A few of the articles, which were not published for various reasons, appear without the footnotes that indicate publication dates.

This volume provides an important record of the consistency of Willy’s plainspeaking on many issues before he took public office, but also anchors the collection of his speeches, articles and judgments in Beacons of Judiciary Transformation (Sheria Publishing House, 2022) during his time as Chief Justice.

Kwamchetsi Makokha

Nairobi, June 2022

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*See the Ford Foundation Code of Conduct at https://www.fordfoundation.org/media/3740 march

I. TALKING ABOUT A REVOLUTION

1. Wanjiku, Moi, Anyang-Nyong’o and Charles Njonjo*

Although a common Gikuyu woman’s name, Wanjiku, as the political embodiment of the ordinary Kenyan, came into existence when former president Moi confirmed what we always knew the ruling class thought of the ordinary Kenyan. Moi also confirmed more specifically what the ruling class thought of the Kenyan woman. Moi asked what Wanjiku knew about constitution making. Professor Yash Ghai and his commissioners have shown that Wanjiku knows a lot about constitution making. We have also been told that issues of power are too dangerous to be left in the hands of ordinary Kenyans, the Wanjikus of Kenya. The Ghai Commission also exploded this falsehood. The mission of the ruling class is to keep Wanjikus divided so that policy-driven politics does not take root in Kenya.

This strategy to keep Wajikus divided has worked, but it is on its way to political doom. I believe the only person who has captured this political development brilliantly is the cartoonist GADO. In all his cartoons, GADO has depicted Wanjiku as a beautiful woman who is very intelligent. Wanjiku consistently laughs at the various failings of the Kenyan ruling class. She has become a philosopher, a social scientist, a lawyer, human rights and social justice activist, a feminist and a political leader of the ordinary Kenyan. It will be GADO’s lasting legacy that he has glorified the virtues of the ordinary Kenya.

On November 20, 2006, friends of the Nyong’o family gathered at All Saints Cathedral for a memorial of the late Canon Nyong’o, the father of Hon Anyang’-Nyong’o, the Secretary General of ODM-Kenya party. We were told by the various people who gave testimony that Hon Nyong’o was always the occupant of the ‘prison’ the late Canon Nyong’o had set up in his house, a room that was to punish his children in the name of education and discipline.

The late Canon Nyong’o was also very sad when Hon Nyong’o, as the student leader at Makerere University, was convicted for presiding over an illegal meeting.

I came out of All Saints Cathedral very proud of Hon Nyong’o. I was convinced that his consistent occupation of the punishment room in his father’s house was not what his sisters, Charles Njonjo and Hon Marsden Madoka said it was, simply indiscipline! I was convinced that Hon Nyong’o started his struggles against authoritarianism and dictatorship at home, continued at Makerere and against the authoritarian regimes that were in part served loyally by Njonjo as Attorney General and Minister for Constitutional Affairs respectively. Rarely do we see dictatorships in families in the name of fathers and husbands, religious organisations, schools, popular organisations and at the global level. In Kenya we seem to know more about presidential authoritarianism because of its visible, destructive and oppressive rungu (Big Stick). We need to identify the small and perverse dictatorships in our society if we are to struggle successfully for democracy in our country. Of course, the Big Man must be disarmed of his rungu. Hon Nyong’o must reflect on this history as he leads the ODM movement. What is he doing about the authoritarianism and dictatorship that is housed in the ODM movement? What is he doing about the authoritarianism and dictatorship that is housed in NARC-Kenya?

It was in the same memorial that Charles Njonjo talked about how Hon Nyong’o dressed. Njonjo said that Nyong’o dresses like a Chinese. He applauded Nyong’o for wearing a black tie for the memorial although his navy blue suit did not suit the sad occasion. Njonjo was dressed in his usual attire, this time a dark grey striped three-piece suit, a carnation in his button-hole, his usual shirts and a black tie and, of course, the usual gold chain and watch. I did not see his boots but I am sure they were charcoal black.

Njonjo has never realised that his style is over 70 years out of fashion. He dresses like the British aristocracy did in the 1930s. You should watch movies of that period and you will get my meaning. For the Cold War warrior that Njonjo was, and still is, (although the Cold War is over), dressing like a Chinese was meant to be politically negative. In the years gone by, Hon Nyong’o perhaps would have been detained for dressing like a Chinese. He was, of course, arrested and detained for his views. He had to flee the country to avoid permanent detention.

Hon Nyong’o’s Chinese suits remind me of Kwame Nkrumah, Julius Nyerere, Jawahral Nehru, Oginga Odinga and Mao Ze Dong. All these five great leaders wore bespoke attire that is captured in the Chinese suits that Hon Nyong’o wears. Njonjo does not seem to know that the ‘unrepentant capitalist roaders’ who rule China today wear Western suits and the Chinese suits he referred to are favoured by the workers and peasants of China. Hon Nyong’o’s suits are not made out of cotton material as are the suits of ordinary Chinese. His Chinese suits, I would imagine, are made of fine wool and silk. Njonjo’s comments, I must say constitute another feather in Hon Nyong’o’s positive political cap. It’s a great accolade for a social democrat to be associated with the culture of workers and peasants. If Hon Nyong’o wore Gandhian glasses (I believe the Gandhian suit has not been emulated by any modern politician) he would be an embodiment of great politicians in terms of attire.

The issue of dress has been the subject of debate when it concerns women. The Hijab has been part of this debate for a while. Feminists have discussed it. I support Sharon Smith’s view in Women and Socialism: Essays on Women’s Liberation that veiled or unveiled, women’s oppression is universal. Smith also argues: There is no contradiction between supporting Muslim women protesting the ban on headscarves in France and championing Afghan women in their fight against laws mandating the burqa. Women should have the right to dress as they choose wherever they live, without government interference. This should be a basic human right.

We need also to focus on interference by the market that has made every part of the female form a commodity.

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*Written as a reflection after the memorial service for Canon Nyong’o on November 20, 2006.

2. Is stagnated middle class activism the sign of a dying spirit?*

During the peak of mass action against the Moi-Kanu dictatorship in 1997, the famous East African intellectual, lawyer and activist, Issa Shivji, humourously observed, Tanzanians spent their time theorising; Kenyans spent their time organising and demonstrating; but Ugandans take up arms and overthrow their governments. In the past two decades, Kenyans were in the news all over the world for their organising organisational nous and the demonstration of their activist spirit.

The World Social Forum (WSF) has just ended, but the Kenyan activist spirit was not evidenced in a pronounced manner. Kenyans seemed lost in their expressions on continental, regional and global issues. Kenyans also seemed to have retreated to theorising, producing leaflets, selling food and artifacts sometimes at exorbitant prices, while singing and admiring activists from the rest of the world. There were, of course, a few exceptions. The usual activist suspects, in the names of Davinder Lamba, Zarina Patel, Zahid Rajani, Muthoni Wanyeki, the Reverend Timothy Njoya, Kaari Murungi, Kepta Ombati, Cyprian Nyamwamu, Steve Ouma, Mwambi Mwasaru, and others, found comfort in the bosom of their continental and global middle class allies and comrades.

The Kenyan Secretariat of the WSF did, indeed, deliver the WSF. Professor Edward Oyugi, Onyango Oloo, Wahu Kahara and Oduor Ong’wen played their part amid allegations of nepotism and authoritarianism. These allegations seem unbelievable, unfathomable and unimaginable -- that these respectable activists hired their relatives into the secretariat of local WSF amid critical national discussions on the Anglo Leasing scandal.

Kenyan activism is still alive and well, but we have refused to recognise it because it is coming from below – from the grass roots level. What has been ailing is the middle class activist spirit that had taken the lead during the Moi-Kanu regime and achieved great legitimacy among ordinary Kenyans. It is the middle class activism that seesaws. The activism that we refuse to recognise is constant and consistent, and it is activism from below the lower rungs of society, the very type of activism that middle class activism wanted to spark in the first place.

Those who went to the Bunge la Mwananchi (the People’s Parliament) tent at the WSF must have experienced the activism of the youth in Kenya. Many of the speakers in Bunge have been heard before at Jevanjee Gardens in Nairobi. The idea of a people’s voice through their parliaments is spreading, and it is led by Kenyan youth. To many of the middle class civil society organisations, the Bunge is a rag-tag army of anarchists, adventurists and rumourmongers, the same perception the Kenyan state has had of the middle class activists. The interventions of these young women and men in seminars have been greeted with typical, middle class intellectual arrogance. What is clear is that this youth activism is visible, courageous and cannot be ignored.

At the WSF a demonstration took place against the Windsor and Norfolk food stands highlighting the allegedly high food prices the two establishments were charging. The activists also wanted food kiosks that were affordable to be given space at Kasarani. Foreign participants at the WSF joined the Kenyan demonstration. The demonstrators had had audience with the Kenyan secretariat of the WSF to make their demands.

The day after the demonstration, children from the slums that border Kasarani raided the Windsor and Norfolk food stands. The children’s raiding cries were chants of We want food. There are allegations that the demonstrators from the day before mobilised the children. Nobody knows this for sure, but what could not escape the eyes of an impartial observer is that the raids were planned and executed meticulously and successfully. And children are capable of such planning and execution. Have we not seen over time similar struggles by school children?

We saw these demonstrations at Kasarani. What else have we not seen, or what have we seen but not taken note of because the media has simply spiked such stories? Kenya has successfully seen the criminal face of the Mungiki but it has forgotten its other faces, the cultural one; the one that depicts the struggle to return lands seized during the so-called ethnic clashes; the freedom of worship crusade and the non-criminal entrepreneurial spirit that is exhibited in some of the Mungiki activities. While the criminal face must be banished, what about the legitimate faces that cry out for justice? The youth in Kenya are organising in various areas of their endeavour: art, music, business, professions and politics. Nobody seems to pay this movement any attention, except the political class that has an eye on cooptation.

What is the future of this new grassroots activist spirit from below? It could be diffused the way the Jomo Kenyatta regime diffused it by setting up the National Youth Service. It could be diffused in the manner Raila Odinga suggested to National Rainbow Coalition, that the youth be employed to construct roads in rural areas. Diffusion, however, mitigates a problem, and is not its solution. It is likely that a new political party could house this activist spirit. That remains to be seen. The state may take the easy option and treat this spirit as yet another form of activism that is rattling a cobra and must be bitten! What is clear is that this spirit of grassroots activism from below is organising and demanding recognition by the middle classes. While in yesteryears activists from below provided cannon fodder for middle class projects, this new spirit of activism is demanding equality in its propagation of its vision, mission, ideology and politics from below.

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*Published in the Saturday Nation on January 29, 2007.

3. Mass action is a double-edged sword, but one that must be wielded*

A truism that goes unacknowledged is that mass action or civil disobedience in Kenya is always peaceful and non-violent when the state is not opposed to it. Just consider the many examples of mass action that make political statements and demands or disobey state orders that take place in Nairobi without state interference: Deliberations of Bunge la Mwananchi at Jeevanjee Gardens; the various political rallies recently witnessed during the electoral campaigns; the workers’ strikes and marches by hawkers and street children calling for justice in the city; musicians in lorries and music concerts in open places calling for struggles for human rights and social justice. One could go on giving more examples of peaceful and non-violent mass action or civil disobedience.

The state has invariably opposed mass action or civil disobedience on security grounds. Demystified, what is termed security becomes political and is a denial of the fundamental human rights of Kenyans. Key among those rights denied is the freedom of assembly, the freedom of expression, the freedom of information and the right to organise. The 1997 mass action is well documented. That mass action was not peaceful and non-violent because of state intervention and police brutality. Both Mwai Kibaki and Raila Odinga were part of the mass action organised by the National Convention Executive Council (NCEC) that year. Both will vividly recall the teargas they were bombarded with at Central Park in Nairobi on May 31, 1997. The mass action on Saba Saba (July 7) 1997 was extremely brutal. Security forces killed 14 Kenyans. The underlying political reason in all this police violence against peaceful and non-violent mass action was that Moi did not want to listen to the calls by Kenyans for a new constitution.

It is clear why the Orange Democratic Movement (ODM) wants mass action. ODM wants to galvanise the anger of its supporters who firmly believe Kibaki stole the election. ODM is also making the point that Kibaki is illegally in office and his rule has no legal or moral basis. ODM’s clarion call now seems to be the undertaking of a new presidential election. The ODM position seems to enjoy some significant regional and international sympathy, albeit a lack of political support from either quarter. ODM believes that continued domestic agitation is a necessary ingredient for the result the party wants to see: There is no doubt that given a chance ODM can organise a march of a million Kenyans in Nairobi to demand a new presidential election.

It is equally clear why Kibaki will not authorise any mass action by ODM. He relies on the law as interpreted by those lawyers close to him. His claim is that he was constitutionally declared winner of a presidential election by a constitutional body, the Electoral Commission of Kenya. He also claims to be the Commander-in-Chief of the Armed Forces, as he has been sworn into office by the Chief Justice of Kenya. Whether the Economist calls Kibaki’s declaration as President a civilian coup or some other form of power grab, Kibaki is in power. Kibaki knows that mass action could also result in a civilian coup by ODM. He has mobilised his security systems adeptly to ensure that the mass action called by ODM will not take place peacefully and non-violently. Kibaki has given orders to security to ensure that any mass action is brutally suppressed. Kibaki’s security systems have shown that they have enough teargas, water canon and live bullets to stop any mass action, however peaceful and non-violent. Kibaki, informed by the NCEC mass action in 1997, knows that he has to follow in the footsteps of the colonialists, Kenyatta and Moi by using force to maintain peace, law and order, which in essence means peace, law and order by any means necessary. And the Kibaki position has its following among Kenyans, but surely not ODM supporters.

Mass action is a double-edged political sword. Invariably, the state is not blamed for the violence. Whoever organises mass action runs the risk of being blamed for state sponsored violence. In 1997, it was alleged that the security systems hired thugs to break into shops to discredit the reform movement; for example, politicians close to Moi funded Jeshi la Mzee to terrorise the reform movement. Even when the security systems brutalised Kepta Ombati and the Reverend Timothy Njoya and killed university students on Saba Saba 1997, the NCEC was blamed for the atrocities! To organise a successful mass action, which the state opposes, one needs to mobilise people on an issue they are ready to die for. If people are not ready to take any risks, they will ultimately blame the organisers of the mass action for the police brutality -- notwithstanding the fact that it is the state that is brutalising them. Kibaki knows this very well.

Peaceful and non-violent mass action must grow to be part of the democratic culture in Kenya. It is in the interest of any Kenyan state to promote peaceful and non-violent mass action. The state should send in security forces to guarantee the security and safety of citizens during mass action to ensure the freedom of assembly, the freedom of expression, the freedom of information and the right to organise. In the case of Kenya, history records that whenever democratic dissent is brutalised, such dissent goes underground. The examples of the December 12th Movement, Mwakenya and other social movements in the 1970s and 1980s took root because of the authoritarian, undemocratic and dictatorial rule of the Kenyatta-Moi Kanu dictatorships. These underground movements used leaflets to agitate for change. The so-called seditious publications, Pambana and Mpatanishi, among others called for democratic reforms. The social movements of those two decades were not armed. Since then, we have seen the emergence of criminal armed militia. Nobody has researched the politics of the illegal militia. The Kenyan state needs to be very careful how it handles dissent. Woe unto us when political dissent in Kenya goes underground and is armed. Kenya should be very careful that its state terrorism does not breed non-state terrorism. We can stop such an eventuality right now by nurturing a positive culture of peaceful and non-violent mass action.

It seems, therefore, that Kenya never stops organising for social transformation and one only needs to locate and recognise that activist spirit. That activist spirit will set Kenyans free.

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*Published in the Saturday Nation on January 19, 2008.

4. Peaceful protest through mass action is an agent of change*

Although there has been a significant breakthrough in the Kofi Annan-led mediation talks, there is still more work to ensure the mediation ultimately succeeds. It is important, therefore, to reflect on the consequences of the mediation talks failing. Kenyans need to keep in mind these consequences so that we can make sure the talks to do not fail.

The threat by the Orange Democratic Movement (ODM) for mass action if a political settlement is not reached is laughable. When will our politicians heed the mood and spirit of the people they claim to represent? Surely, that mood and spirit is about the success of the Kofi Annan mediation. Raila Odinga perhaps captured that mood when he called for mass action. It would be interesting to see how many Kenyans would answer this call for mass action by ODM if Major General Hussein Ali, the Commissioner of Police, keeps his machinery of violence in check. Mass action, in any event, as a consequence of failed mediation is nothing to worry about: there are more serious consequences if the Annan mediation fails.

If the Annan mediation talks fail, let us be very clear about the consequences. Internally, it is possible the country will be partitioned. Eldoret may become the capital of the ODM government. Kenya, now failing, will become in reality a failed state. There will be no rule of law to talk of as ethnic barons and warlords use their ill-gotten wealth to tear the country apart. Central Province and part of Eastern Province will mostly likely be the area Kibaki will rule, surrounded by the rest of the country that will most likely pledge allegiance and pay taxes to ODM. Regional trade routes through Kenya will not be viable. With two parallel governments, a vicious civil war -- which will mainly pin the Gikuyu, Embu, Meru Association (GEMA) communities against the other 38 -- will be unavoidable.

This kind of tragic scenario, which is not an exaggeration, perhaps will not be allowed to happen by regional and international communities. The rich Kenyan grapevine has it that it is likely Kenya could be invaded by one or more of its regional neighbours if the Annan mediation fails. Neither can international intervention be ruled out if the Annan talks fail. Possibly, the regional forces will act as proxies for the international forces. Kenyan independence and survival is, therefore, in serious jeopardy.

One wonders when both Kibaki and Raila will read the writing on the wall. And that goes for their political supporters, who are invariably called hardliners. There is wisdom in what Sophocles wrote: Those whom the gods wish to destroy first make mad. The Kenyan political class is mad. This class finds it easy to use its ill-gotten wealth to arm illegal militias and to use Kenya’s unemployed youth as the cannon fodder for its power struggles. It is this class that makes the security forces impotent because of its practised culture of impunity. Why would our country be taken over by thugs, common criminals and illegal militias when we have always prided ourselves on having professional troops and effective civilian and military intelligence systems?

Are Kenyans always scared of painting worst-case scenarios? Are they always hoping that things will turn out to be okay? It may be because we are fanatically religious as a nation and are constantly seeking divine intervention. Well, Annan is part of that divine intervention, yet Kenyans are yet to show support for his mission.

If civil society, both secular and religious, the private sector and Kenyans in general understand the dangers painted here and internalise the gravity of the situation the country faces, then it is our duty to demonstrate that we have faith in what Annan is doing. We should have mass action not in support of ODM, but for Annan and his team. Simultaneously, let us also carry out mass action against Kibaki and Raila, and their respective parties. Kenyans need not march or do anything that will attract the wrath of Major General Ali’s machinery of violence. Kenyans could be creative in showing their support for Annan and his team as well as venting their anger towards Kibaki and Raila. Those driving past Serena could perhaps hoot twice. Those Kenyans who are walking past Serena may wave Kenyan paper flags (pennants)). These exercises could be repeated along State House and Pentagon House. As the movement grows, Kenyans will be creative in their mass action and other actions will follow.

The message Kenyans should give to both Kibaki and Raila and their fellow travelers is that Kenyans need a political settlement that goes beyond the sharing of political power between ODM and PNU. Economic, security and social reforms are very fundamental for the peace of the country. While sharing of political power and a time frame for presidential elections is important, the implementation of economic, social and security reforms cannot wait. Illegal militias, thugs and criminals must be brought to justice. Politicians and business people who are involved in the creation of illegal militias must be prosecuted. Internally displaced people must be resettled and given the right to return to their lands, accompanied by robust security. Constitutional and legal reforms that underpin the political settlement must be passed. A programme that immediately deals with youth unemployment must be implemented forthwith. There are no longer any other political short cuts available for diffusing the tensions that threaten to tear our motherland apart. Therefore, mass action for Annan and his team is in order!

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*Published in the Saturday Nation on March 1, 2008.

5. The workers’ movement needs fundamental reforms*

The celebration of Labour Day last Thursday calls for a reflection on the fundamental reforms that the labour movement in Kenya has to pay attention to if it is to stay relevant and useful in its struggles for the social transformation of Kenya.

The plight of the prison warders has brought into sharp focus the rights of workers who are not unionised and workers whom the organised labour movement does not speak for. The agitation by prison warders also raises a critical legal issue. The Trade Disputes Act outlaws strikes by workers in essential services, the prison services being one of these. Does that Act expect the rights of the workers in essential services not to be violated by the state in the first place? If the rights of the warders were clearly violated by the state that refused to pay their legitimate dues, is it not immoral for the same state to criminally charge their leaders for raising legitimate concerns? Is this not an issue that the Central Organisation of Trade Unions (COTU) should be engaged with? Should we not be saying that in this case of the warders, it is the state that should be in the dock?

The labour movement has not appreciated the emergence of a vibrant governance and democracy component of the civil society since the early 1990s. Indeed, it is arguable if the leadership of the labour movement in Kenya understands that trade unions are part of the civil society! Within the civil society, therefore, trade unions have great allies in the religious organisations, non-governmental organisations, social movements for women and youth, community based organisations, not-for-profit organisations in the private sectors such as foundations, the private sector