Kenya’s Peer Review Missing in Action

Bronwen Manby (the EastAfrican)—The latest report on Kenya by the African Peer Review Mechanism says there is a need for a healing of the nation.

But it also points out that the process of national healing and reconciliation is unlikely to proceed as long as society is still polarised. “In addition, without also addressing past crimes, corruption, marginalisation and poverty, it is unlikely that reconciliation can be achieved,” it says.

The report considers previous eruptions of violence in the country, making observations that are just as valid today as when its writers made them.

The APRM eminent persons noted “the role of prominent members of the ruling party and high ranking government officials in fuelling the so-called ethnic clashes.”

They complained that many of the people involved “have neither been investigated nor prosecuted. Some have continued to serve as senior officers, Cabinet ministers or Members of Parliament.

The inability to act [against them] tends to underline general public perception of impunity, while at the same time constricting the ability of people to come to terms with the past experiences of injustice and violence, thus further aggravating and reinforcing polarities and suspicion.”

All in all, the APRM country review report made a remarkably frank assessment of Kenya’s problems. The report did not shy away from highlighting issues of corruption, especially in land allocation, nor from the ethnic tensions that have been so horribly demonstrated in recent months.

It identified overarching issues that Kenya would need to address, starting with managing diversity in nation building, and going on to filling the “implementation gap” between policy and action on the ground; addressing poverty and wealth distribution; land reform; action against corruption; constitutional reform; and addressing gender inequality and youth unemployment.

Notably, the report called for “transformational leadership” — leadership that “recognises the need for dramatic change in a society” and that “entails not simply directing change but managing it in a way that ensures broad ownership, legitimacy and self-directed sustenance and replication of change in all associated systems.”

Thus, just two years ago, Kenya was being lauded as one of the first countries in Africa to complete the process of examination by the APRM, while the resulting report provided a hard-hitting analysis of the challenges the country faced and made some important recommendations on the way forward.

The country’s decision to sign up for the APRM was supposed to be an indication of commitment to good governance and respect for the principles of democracy and human rights.

Had the problems the APRM report then highlighted been tackled, it is possible that the violence and distress of the 2008 crisis could have been avoided. And yet nothing was done. What went wrong?

The Kenyan APRM report does have some weaknesses. Most importantly, it does not identify the issues relating to the independence of the Electoral Commission of Kenya that were so critical on election day and in the period following. This in turn reflects a weakness in the APRM questionnaire that guides the reviews, as it does not focus on electoral management and its independence, but rather the simple fact of holding elections.

A much greater weakness lies in the gap between the country review report and the programme of action, which is supposed to set out concrete actions that will address the problems identified in the report.

For example, the review report decries the lack of independence of the judiciary, and especially the vulnerability to executive influence of the process for nomination and appointment of judges.

The eminent persons noted that during their visits to Kenya, they had received reports of incidents in which prominent government officials either disobeyed court orders or expressed an intention to disobey them. They state forthrightly.

“The Chief Justice being an appointee of the president is not trusted to be able to take an independent decision’ — the very reason why Raila Odinga and his ODM party rejected the insistence by the incumbent PNU that any challenges to the election results should take place in court.”

Yet the programme of action talks only of “enforcement of judicial reforms and existing administrative measures to ensure members of the bench improve efficiency, accountability and monitoring of judicial functions.” There is no mention of steps to end executive interference and ensure respect for the rule of law.

In other areas too, the programme of action shies away from the difficult political issues, focusing rather on capacity building and resource mobilisation; matters to which even President Mwai Kibaki could happily agree, and in many cases has already done so as part of ongoing donor-financed reforms.

But the biggest concern is the issue of political will. Was the government ready to try to fix what was broken? Were the APRM eminent persons and secretariat willing to hold them to account? And were other African heads of state who had signed up for the APRM process — to whom the eminent persons and secretariat report — ready to urge remedies for poor performance, or would their own glass houses discourage the throwing of stones?

A journalist and member of Kenya’s national Nepad secretariat was present at the APR Forum — the meeting of all the heads of state who have signed up for the APRM — when it met to review the Kenya report.

His account gives us a clue as to what the “peer review” element of the APRM really means: “I counted the number of leaders who spoke after President Kibaki had responded to Dr Machel. They were from Ghana, Ethiopia, South Africa, Rwanda and Nigeria. Not one posed a question to Mr Kibaki.

“They all praised the report and commended Kenya for being candid, thorough and open. They pledged to support Kenya in seeking solutions to its constitution review and diversity problems.

“When it was all over, South African President Thabo Mbeki, former Nigerian president Olusegun Obasanjo and Prime Minister Meles Zenawi of Ethiopia expressed relief and promised to go on with the process, after realising that it was not a life-and-death situation,” he said.

Thus, though Kibaki was said to be committed to addressing all the issues, among them tribalism, poor corporate management and corruption, which were raised by the APRM report, he need not expect too critical a review from the other heads of state on his follow-up in practice.

Although each country that has undergone the APRM process is supposed to report back to the APR Forum on its progress, there is no serious monitoring of how effectively this is done. Nor are any sanctions imposed for failure to act. Neither is there any real system to ensure that the commitments the government makes address the most important problems highlighted in the APRM review.

Certainly, no individual or institution at the African level, least of all the APR Forum, raised the implementation of the APRM commitments as critical issues during the recent Kenyan crisis — or, perhaps more importantly, during the lead up to the election, when such a focus could perhaps have averted the near-catastrophe into which Kenya was drawn.

At national level, meanwhile, the implementation of the APRM programme of action is also left entirely to the executive, with no formalised role for parliamentarians or civil society to hold the government’s feet to the fire should it fail to perform.

As in other countries, the APRM process has not been well-integrated into other national development planning processes and it does not appear to have informed other important reform programmes under way at the same time.

Moreover, the systems in place to monitor the implementation of other national policies (however imperfect) are also not mobilised to engage with the implementation of the APRM programme of action.

For example, President Kibaki did not report back to parliament on the APR Forum meeting and on the actions he had committed to take, nor was the report tabled for debate.

Though there was some coverage in the media of the APR Forum discussion on Kenya, it did not generate a real national debate on the report and programme of action and their implications.

The conclusions and recommendations were not widely disseminated in the country by the Nepad-Kenya secretariat or other means, although a meeting hosted by Nepad-Kenya in mid-February aimed at encouraging the involvement of civil society in the process of preparing the country’s progress report to the next APR Forum.

Even the continental APRM secretariat failed to engage in any serious way with national institutions such as the Electoral Commission of Kenya or the Kenya National Commission on Human Rights, in order to brief them on the conclusions relevant to them and the follow-up role they might play.

Without this sort of integration into other national planning systems, debates and oversight mechanisms, the APRM process seems doomed to become little more than a cosmetic exercise without effect in the real world of policy and decision making.

There is no demand from civil society in Kenya or elsewhere for the APRM to issue condemnations of countries’ performance on governance or to “take action” on the behaviour of recalcitrant governments such as that of Zimbabwe — as some international commentators have suggested.

The APRM is not a human-rights monitoring body, they say, but rather a tool for mutual learning, and there are other AU institutions that are more appropriate for the more obviously critical and political role.

Nevertheless civil society groups do feel strongly that while peer review by fellow heads of state is all very well, it should be backed up by a greater effort by the APRM Secretariat or other independent groups to monitor the performance of governments against the programmes of action to which they have signed up. The Pan-African Parliament could also be brought in to play this role.

For Kenya, meanwhile, the 2006 conclusion of the APRM report remains relevant today.

From all indications, it is obvious that the challenge in Kenya is beyond the mere adoption of a new constitution. The challenge remains that of resolving the following contentious issues: the nature and character of executive powers, devolution of power, constitutional provisions for religious courts, and the mode of transition to the new constitution.

Bronwen Manby is senior programme adviser at AfriMAP, Open Society Institute, South Africa

<< Back to main