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Land Issues under Power-Sharing: Comparing Kenya and Zimbabwe – Lionel Cliffe

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[Published in Leeds African Studies Bulletin 72 (Winter 2010/11), pp. 91-116.]

Introduction [1]

The broader project, within which this work on the current politics of Kenya and Zimbabwe was undertaken, sought to develop a comparative understanding of efforts at land reform in the last 50 years and their outcomes[2]. Preliminary investigations in that broader, comparative work, were pointing to the importance of the particular past political contexts in shaping policies and outcomes. Determining features of the inherited legacy of both countries were the nature of repressive and racist settler colonialism and the emergence of an armed struggle for liberation in which land restoration was a central issue. Thereafter the nature of the post-independence state and the political forces at work, especially at key moments, shaped policies of land reform, their actual implementation and longer-run outcomes. Here one crucial difference was the fact that the anti-colonial ‘land and freedom’ struggle in the 1950s was crushed in Kenya; in Zimbabwe the liberation movement fought the Rhodesian forces to a standstill, reflected in the nature of the deal in the negotiated settlement at independence almost a generation later than in Kenya. More immediately, what has become intriguing in this exploration of the politics within which land matters are settled are the apparent similarities in the dramatic playing-out of political crises by 2008-09. Zimbabwe followed Kenya’s experience of bitterly contested elections and hot disputes over the announced results, giving way to violent conflicts, and ultimately an agreement for power-sharing. There was also a resonance between the two experiences in that land and land reform were central issues, as underlying causes or concomitants of the eruptions and as parts of the agenda for ‘recovery’, albeit in different forms. Land reform had been a matter for intense public debate for five years in Kenya, without resolution, and in seeking causes of the violence, many analysts pointed to the ethnic legacy of land redistribution of four decades ago. In Zimbabwe a radical second wave of land redistribution had occurred since 2000 and was in turn one bone of contention between the parties.

This article attempts to set out the contemporary aspect of the political context of land issues. It explores how policies toward land and conflicts over land contributed to political crises in the two countries, but is more concerned to map out the nature of the political compromises that have provided some resolution, however partial and temporary to the crises, and the prospects that the power-sharing governments offer for further resolution of the land issues facing each country.

Perspectives on Power-sharing

The ‘power-sharing’ formula seems to be in vogue with international actors, being one of the options discussed, as this was originally being written, after Afghanistan’s disputed election results – at least until the withdrawal of the ‘defeated’ Presidential candidate. It is being seen as perhaps yet another institutional ‘democratic’ form or at least a mechanism that can be fostered as an interim measure in an incomplete democratisation, but even that would be over-optimistic, in my view. This paper starts from the proposition that it would be incorrect and delusional to imply any necessary link between ‘power-sharing’ and democracy. It may be more realistically seen as a model for temporary conflict prevention or limitation, but even that remains to be seen. The possible middle to long term outcomes of what is unfolding in the two countries will figure in concluding sections of the paper, and one end of the theoretically possible range of scenarios might be significant democratisation, but that is by no means inevitable or likely. The approach taken here is that in order to contemplate the future it is not helpful to debate the democratic credentials of power-sharing, or even debate how far the sharing is fair, but instead to look at how it is working out in reality.

It should first be recognised that the power-sharing formula has been followed in several differing circumstances, and our two case studies are of a new and unusual type. Most usually it has been used as a mechanism to end civil wars or other major systemic conflicts, such as in Sudan, Yemen in the 1980s, and Northern Ireland, where former belligerents are brought into the executive (and maybe legislative) arm of government, as a centre piece of an agreement that might include demobilisation of armed groups and even uniting them in a national army, and other transitional arrangements. The prospects of such agreements readily leading on to a ‘democratic’ government and even a sustainable peace have rightly been questioned. Young (2005 and 2007) is just the most clear-cut of many who argue that the Comprehensive Peace Agreement (CPA) between North and South in Sudan has delivered a joint government uniting two inherently anti-democratic elements. A more general critique of the use of the formula by international mediators (Tull & Mehler, 2005) points to the counter-productive incentive it has often provided for new armed groups to enter the fray as a means of seeking inclusion at the power-sharing table – and in turn in the trough that is awaiting after ‘peace’. Somalia would be a case in point where proliferation of armed groups has inhibited the formation of any all-inclusive agreement and a sustainable state.

But Zimbabwe and Kenya need to be understood as a different kind of power-sharing. Even if both have had their share of violence, the immediate circumstances in which the formula was applied were those of a flawed election process delivering a formal but disputed result that kept the incumbent president in power, and the resulting fear; in Kenya the actuality, of violence. Thus for power-sharing to be pursued, the presidential electoral result first had to be put aside; the discrepancies in the announced results were not to be sorted out by any due process of appeals to, and scrutiny by, the electoral commission, courts or other authorities, let alone reruns. Thus the circumstances did not correspond to those elsewhere that had involved conflict resolution to initiate a democratisation as part of a peace process. The application of the formula in the two countries involved a rejection of the one element that ‘democratisation’ has often been reduced to: the holding of multi-party, competitive elections, and the denial of the sovereignty of the popular mandate and that basis for legitimacy of government. To that extent it could be seen as a step back from an on-going democratisation process (however rocky that might have been), a denial of democratic processes. One take on what has happened has been stated firmly by President Ian Khama of Botswana, who argues that “power-sharing is a means of keeping a losing party in power”:

If a ruling party thinks it is likely to lose, and then uses its position as a ruling party to manipulate the outcome of an election so that it can extend its term in power, (it is) no way to go… the power-sharing thing is a bad precedent for the continent” (quoted in Mbeki, 2009).

Certainly, in both countries supporters of the former opposition and the non-partisan civil society bodies were left with a strong feeling of a denial of rights and a fraudulent retention of power; that they had been cheated. This feeling was expressed in calls for recounts or in the case of the National Council of Churches of Kenya (NCCK) for a rerun. Voices were raised from within opposition parties, and from civil society, against any power-sharing deal. The MDC’s signing up to the GPA was labelled a “defeatist theory that saw the people’s party being pushed into an unfair and anti-democratic deal with ZANU-PF” by one such commentator[3]. Certainly a power-sharing deal was a second best solution. Thus the only rationale in these circumstances was not one of democratisation but of pragmatic avoidance of a worse fate. Admittedly this formula in these post-election circumstances, as pursued by the mediators, at least may not have the consequences noted by Tull & Meyer (2005) of providing an incentive for proliferation of armed groups – although the role of militias in Kenya, and of regime-related thuggery in Zimbabwe, before and after the elections and in the transition provided for in the Agreements will be noted below.

The focus here will thus not be on share-powering as a possible step to democratisation and on any such justification, but much more on the real politik at work in what continue to be quite brutal and ruthless power struggles, in which fairness and due process have little part. Moreover, the paper tries to avoid a purely idealistic analysis focussing on the inequities of the processes or the apportioning of blame for shortcomings. It will conclude with some consideration of the potential longer term outcomes which will depend on how three dimensions of politicking play themselves out: the inter-party and inter-elite competition and whether it takes any new form; the economic and political interventions of regional and international actors; and the role of a range of popular forces, from organised civil society organisations (CSOs) seeking democratic outcomes, to those seeking to deploy industrial action or civil disobedience, all the way through to armed groups on the edges of the state and of organised politics.

The Immediate Circumstances leading to Power-sharing

The set of events during 2008 leading up to the recent power-sharing agreements in Kenya and Zimbabwe certainly are strikingly similar: closely contested elections with the former opposition gaining parliamentary majorities and early results in the presidential elections pointing to opposition victory, only for the ruling party to confirm itself in power despite widespread reports of vote-fixing. The disputed results of a presidential victory led to unrest, and in the Kenya case widespread violence and de facto ethnic cleansing, that in turn led to international initiatives in mediation. Eventually negotiations produced formulae whereby the election results stood, but presidential power would be modified by creation of the post of prime minister, who would be from the previous opposition and a mixed cabinet would be created. It still took two months for this formula to be finalised and operationalised in Kenya, and considerably longer in Zimbabwe. The similarities were emphasised by the fact that the Kenya formula was in part consciously drawn upon for lessons applied in the Zimbabwe process. However, the broader political and economic crisis contexts

varied, as has the way events have played out, as will be explored in the section on contexts below.

On a scale much more widespread and vicious than even in Zimbabwe, the disputed result in Kenya led to widespread and tragic violence between supporters of both parties (and not just mainly from one side as in Zimbabwe), mainly in urban slums and in rural areas that were ‘contested’, especially in areas that had been the site of old resettlement or land purchases in the 1960s and 70s, or where there were immigrant farm labourers, in part spontaneous but also orchestrated by politicos in both parties. UN estimates were 1,000 people killed and a massive 600,000 displaced. Political negotiations were necessary not only to resolve the issue of who would wield power but also to stop the disturbances.

Mediation and the Power-sharing Deal

The African Union (AU), with some backing from the East African Community (but not the Horn’s regional body to which Kenya belongs, IGAD), made immediate efforts to promote an end to the violence – although it did recognise Kibaki at a Heads of State gathering almost immediately. An ‘Eminent Persons Group’ lead by ex-UN Secretary General Kofi Annan, with Ben Mkapa (ex-President of Tanzania) and Graca Machel of Mozambique, began a mediation process, which delivered a National Accord by end of February 2008.

The NA did not call for a re-run of the election nor a recount of the votes but opted for ‘power-sharing’ between President Kibaki and his party, and Raila Odinga, leader of the ODM within a ‘Grand Coalition Government’. A key means to accomplish this was an immediate constitutional amendment to create a post of Prime Minister, to which Odinga was appointed, by Parliament, while retaining an executive presidency. Another immediate constitutional change provided for the setting up of two independent Commissions to inquire into the Post-election violence (the Waki Commission), and into the electoral system (Kriegler), as well as the resurrection of the idea of a Truth, Justice & Reconciliation Commission reviewing cases back to 1966. These immediate changes and actions were enshrined in the National Accord & Reconciliation Act, passed in March 2008. These Commissions were formed and the first two have reported. The former has not made public the names of political actors who instigated or financed violent acts, but forwarded their names to the International Criminal Court having informed the President and PM. And Parliament has on three occasions ducked the consideration of a Bill to institute a local tribunal to try locally the instigators of the post-election violence.

Longer-term accords provided for more fundamental changes, notably in a constitutional review process (the earlier attempt during the life of the last Parliament having ended with a Draft Constitution being rejected in a referendum, as in Zimbabwe in 2002), as well as other institutions that would be set up to pursue other Accords (see below). The NA also committed government to the resettlement of the many displaced. It also identified several ‘underlying’ issues deemed to have caused or contributed to the violence – poverty, ethnic and regional inequalities, and especially a failure to enact land reform; addressing these constituted a long-term ‘Agenda 4’.

Zimbabwe’s Global Political Agreement (GPA) similarly provided for some limited but immediate constitutional amendments, notably the creation of the post of Prime Minister. The negotiations which led to the GPA and the resulting joint Cabinet included both factions of the opposition Movement for Democratic Change, the main one led by Morgan Tsvangirai (MDC-T) and Arthur Musambara’s (MDC-M). The long process of mediation began before the disputed elections in March 2008 and after Tsvangirai withdrew from the June run-off for the presidency following widespread violence. The Southern African Development Community, concerned about the political and especially the financial and economic crises, that were impacting on the region as a whole, initiated a dialogue between the then ruling party and the MDC factions in 2007. SADC put the business in the hands of a triumvirate headed by Thabo Mbeki as facilitator when he was still President of South Africa and at the time Chair of SADC. After painstaking talks some understandings were reached before the elections, including a draft constitution put together by representatives from the three parties (the ‘Kariba’ draft of September 2007). But the GPA was not signed until September 2008. The Constitutional Amendment (No. 19) giving effect to it and the immediate modalities of power-sharing, took several precarious months longer until they were finally implemented and an ‘inclusive government’ was formed in February 2009. As in Kenya, the longest of a series of disputes that delayed implementation concerned the division of ministerial and other posts between the partners.

Institutional Mechanisms

In Kenya, the Independent Review Commission (Kriegler) Report on the electoral system set out recommendations for a complete overhaul of electoral law and the replacement of the existing Electoral Commission with a new and independent body. It thus envisages one major area of institution building, and one moreover that is seen as the main guarantor of a ‘free and fair’ election in 2012, reform of the Electoral Commission. Amidst controversy, a short-list of possible ‘independent’ members had been agreed by October 2009 and was constituted in 2010. The Report also pointed to major inequities in the size of constituencies (the population of the largest was 20 times that of the smallest) and called for a Border Commission to re-demarcate constituencies. The new draft constitution instead proposed combining the Border and Electoral Commissions, but failed to specify any target size or other criteria for demarcation. Any reform to a fairer distribution of seats between regions is likely to be a very controversial political issue, resisted by representatives of the main beneficiary regions, yet is a crucial prerequisite of a free and fair election as voting and counting reforms.

The Kenya NA also proposed a truth and reconciliation process, and a National Ethnic and Race Relations Commission (NERC), which would survey inequalities and antagonisms covering the period from independence to 2007. A Truth, Justice and Reconciliation Commission, first mooted in 2003, was finally constituted under Bethuel Kiplagat, who had been the IGAD mediator over Somalia, as Chair and its members were announced. However, despite frequent meetings it was never able to overcome popular suspicions that its membership and specifically its Chair was too associated with Moi’s regime and its practices, and after long squabbles he finally resigned in late 2010. The NERC has yet to be formed, and may prove too controversial to ever be formed. A Mitigation and Resettlement Unit has been constituted, but its key function – the resettling of people displaced in ethnic clearances – will require complex untangling of legalities of land ownership and of inter-community relations as well as the costs of transport and restoration of livelihoods, which may be too demanding in the political climate.

The GPA in Zimbabwe did acknowledge the need for national healing but a truth and reconciliation mechanism has not been provided for, although an Organ for National Healing, Reconciliation and Integration, which is by-partisan, consisting of one Minister from each of the three parties in Parliament, rather than independent, has been formed. The issue of immunity or accountability has come up more in relation to corruption and land allocation than to violence, with the eventual passing of a Reserve Bank Amendment Bill, whose draft clauses on ending immunity were resisted by ZANU-PF, but only partially successfully. Overall in Zimbabwe, another power-sharing mechanism of ministers from the parties, a Joint Monitoring and Implementation Committee (JOMIC) was provided for in GPA and has met from time to time.

Contexts Compared

Underlying the obvious close similarities in the immediate circumstances that lead to power-sharing agreements that eventually came into being after ruling parties hung onto government after dubious presidential election results, there were significant differences in the political contexts. These differences may go some way to answering the analytical questions of who or what are the entities amongst whom power is being shared, and also the likely future outcomes:

Nature of the contesting parties: The Zimbabwe context could be seen as an old order national liberation movement hanging on to power and to its symbols and structure in the teeth of a challenge from a recently-formed party (now parties). Kenya had, however, left behind the pattern of a more ‘authentic’ national movement, the Kenya African National Union (KANU), by absorptions and splits in the 1960s and 1970s, which resulted in some of the original political leaders and their ethnic constituencies being marginalised from the ruling party and their replacement by leaders and their provincial bases from the post-independence opposition (KADU), and then further realignments since 2000. The resulting pattern is the total absence of any identification of parties with programmatic commitments, “politics is viewed as a winner-take-all, zero-sum ethnic game” in the words of Mueller (2008), a view with which most analysts would agree. “Leaders and politicians have shifted from party to party and in the process made strange bed-fellows with each other” (ibid: p.202). So the two contesting parties in 2007 were relatively newly refashioned alliances – and further realignments can be expected to be part of how events play themselves out in Kenya (see below). There is no doubt that ‘ethnicity’ is a central factor in Kenya’s politics, to an extent that is not comparable in Zimbabwe. But a brief comment is needed about what such a statement means. There is in fact considerable debate about whether the post-election violence and the basic structure of politics in Kenya are primarily ‘tribal’ or whether divisions are about land or other resources, or ‘regionalism’ (majimboism). The fact that such propositions are not mutually exclusive often gets lost, mainly because of the persistence of ‘essentialist’ views about ethnicity. Propositions that, implicitly, attribute ‘causes’ by effectively arguing that tribally-based factions and clusters of leaders and militias are programmed to lay into each other, motivated by an inherent ‘ethnic identity’ and accompanying antagonisms, are rightly to be dismissed as tautological, explaining nothing. Analysis has to ask what are conflicts over, and the answer is often land and/or other resources, but also who are the groups in contention. In Kenya the complex answer to this latter question covers leaders, parties, clusters and coalitions, militias recruited (from the top) on the basis of tribal identity and of alliances between such groups.

In Zimbabwe, in this more complicated sense ethnic factors do have a salience in answering the who question, but alongside other factors, such as strata and class, region, race. This complexity in turn complicates the very question of who shares power: is the struggle between leaders, parties, regions and/or tribes?

‘Ideological’ differences: Ideology has figured little in political discourse in Kenya after the disappearance in the late 1960s of ‘African Socialism’ in government rhetoric and the defeat of the radical formation, the Kenya People’s Union (KPU), lead by Oginga Odinga, father of the present Prime Minister and leader of ODM, in the late 1960s. Since then there has been no discernible difference between the beliefs, policy prescriptions (if any), or interests of those in the varying factions and political alliances. Partial exceptions were seen in the short-lived Social Democratic Party, most of whose activists did later join ODM, and by the formation of the two new alliances that emerged over their pro or anti stance toward the draft constitution put to referendum in 2005, which were the main contestants of the 2007 elections. The ODM is still largely, but not exclusively, the locus of ‘reformers’.

In Zimbabwe the stances toward the government draft of a new constitution put to referendum in Zimbabwe in 2002, and like in Kenya rejected, is still a major issue separating the two sides. But how far is the different history of Zimbabwe and the survival of ZANU-PF as an old-guard national liberation movement still reflected in more fundamental ideological distinctions between it and its MDC rivals? ZANU-PF is the repository of the mantle of the national liberation struggle, and has in recent years refined this and explicitly expounded it into a specific formula, which commentators (Ranger, 2004) dub ‘patriotic history’. This self-portrait does contain a heavy dose of the symbols of national liberation and is used to justify a special status – as when heads of security services state that no one who was not in the struggle can be allowed to lead the country. An argument made against ex-ZANU-PF Minister Simba Makoni being adopted as ZANU-PF presidential candidate before the 2002 elections, before the same charge was levelled against Tsvangirai in the 2008 elections. But does this rhetorical mantra translate into an ideology, let alone make ZANU-PF the kind of ‘programmatic party’ that analysts see as a crucial missing ingredient in Kenya? Several commentators have not only brought out the symbols in the rhetoric and its self-serving nature but gone on to reify ‘patriotic history’ into a set of ideas that do more than act as self-justification and shape a range of policy positions, notably the land occupations and the general stance toward the western powers. A recent example explores the notion that “…leaders like Robert Mugabe have continued to deploy Afro-radicalism and nativism as part of taking the decolonisation strategy struggle to the further level of economic liberation from the snares of neo-colonialism” (Ndlovu-Gatsheni, 2009: 62), a thesis that is admittedly explored rather than embraced. But it should be remembered that this is the same leadership group who proclaimed the slogan of ‘marxism-leninism, mao-tse-tung thought’ as the core of their beliefs – for a few years in the 1980s until they voluntary signed up to an IMF-WB Structural Adjustment Programme. Did they really believe in those dogmas then, any more than many of those in the regime are committed to the current rhetorical rubric?

One area where major programmatic difference between parties in Zimbabwe is recognised relates to the major Fast-Track Land Reform programme pursued from 2000, and it is clear that MDC would not have gone down that path, but after the event the differences lie in how to deal with that inherited situation not whether to reverse it (see section on land below). Moreover, there clearly were and probably still are a range of different interests and views about FTLR within ZANU-PF, especially between those veterans committed to a national reform and elites who saw it as a means of acquisition (Sadomba, 2008). Another dimension, seldom acknowledged in public discourse, along which one might search for currently important programme dividcs relates to the shape of any economic recovery programme, the main stated priority in the GPA, and especially how far to accept engagement with the international economy based on an unadulterated neo-liberalism. To be sure some of ZANU-PF’s anti-imperialist rhetoric could be interpreted as resistance to that, but there are elements within the party that would not hesitate to sign up to such a formula providing they got to keep their assets. The possible extent to which MDC factions are likely to sign up to complete neo-liberalism is rarely scrutinised by outside commentators. What, for instance, is the significance of the appointment as Minister for State Enterprise of an MDC-T member, whose frequent contributions to economic discussion over the years have been in general critical of state industry? On the other hand those Zimbabweans who are concerned to keep some control over their own economy can be found in all parties and none.

Role of International and Regional Actors:

It is hard to imagine any power-sharing being made without some external involvement in a mediation process and the diplomatic and other pressures that would inevitably be part of it. As will be indicated, both Kenya and Zimbabwe were subject to intensive negotiation. These were formally in African hands – in the Kenya case the Eminent Persons’, lead by Kofi Annan, under the auspices of the African Union (AU), and in Zimbabwe a group instituted by the regional organisation, SADC, lead by Thabo Mbeki, initially while he was still President of South Africa. But their efforts, and its resourcing, were played out against a strong under current of diplomatic muscle provided by the main western powers.

For somewhat different reasons what happened in both countries mattered to the international community: Kenya had been a straight ally of the West since the days of the Cold War and remained an actor seen as offering stability in a turbulent region; a maverick Zimbabwe could not be ignored or quarantined given its impact on Southern Africa. These differing considerations had different implications for the relations between the external actors and the internal contesting partners. The stance of Western donors and diplomatic forces and international financial institutions toward Zimbabwe parties was asymmetric to say the least: strongly condemnatory of the ZANU-PF regime, supportive of the MDC factions. This position has thus far dictated that no general budgetary support to the coalition government or its recovery programme is on offer. However much such withholding of longer-term recovery and development assistance and channelling of humanitarian, short-term aid through NGOs until greater achievement of the Agreement’s commitments to the rule of law may be justified, by both donors and human rights activists, on grounds of principle, there is a major dilemma facing the international actors. Structural shifts in the social and economic circumstances could generate the conditions that might underpin political reform and bolster MDC’s support. Withholding aid thus runs considerable risk of failing to make resources available to change the present realities, with respect to rationalising the land situation and assisting recovery; and the international actors are thereby putting themselves in the position to receive the blame, especially among Zimbabweans and Africans elsewhere in the continent. Moreover, in the long-term their support may become less essential to Zimbabwe’s future given prospects of revenues from diamonds and gold.

In Kenya the post-election violence and the foot-dragging about constitutional and electoral reform and Agenda 4 items are laid at the door of both parties and both leaders, so pressure to live up to agreements is applied to both sides. The reaction of the US Ambassador in holding a public meeting immediately on the release of the draft constitution in November 2009 to stress that US leaders want the hurdles removed by the two Kenya leaders and quick endorsement, is a recent example of the fact that attempts to influence are not partisan nor confined to diplomacy in the corridors of power.

Regional actors have been directly involved in both countries’ power-sharing: at first in the mediations through which Agreements emerged and the agencies involved: under the AU (not the sub-regional body, IGAD) in Kenya; SADC in Zimbabwe. It could also be said that the monitoring and compliance mechanisms with relation to Zimbabwe are in practice more detailed and, despite the resistance to them, more effective, than those operating on Kenya. In the latter case the diplomatic and aid-conditionality measures of donors and international agencies are more significant. In Zimbabwe, the reality of a stronger regional organ, dominated by a hegemon in the form of South Africa, and a widespread feeling that surrounding countries are impacted upon by Zimbabwe’s crisis, in terms of investment confidence and huge migrant flows, generates more peer pressure than in Kenya. This needs to be included in analyses by the international media and academic analysts which tend to focus exclusively on the absence of explicit public condemnations of ZANU-PF by the neighbours. What do they realistically expect of fellow governments? And isn’t quiet action better than words that can be dismissed as neo-colonialist?

Constitutional Reform

Both agreements specified that one of the major tasks of the transition period under the coalition government should be the drafting, debating and adopting of a new constitution. To underline the similarity between the two countries, both had been governed under a constitution framed at London’s Lancaster House at the time of their independence negotiations, and have been subject to only limited revisions since then, so they retain authoritarian elements from the colonial origins of the state. Both states have had similar histories since the late 1990s involving incomplete constitutional review processes, wherein alternative drafts were proposed by civil society and by government, with the latter eventually being put to the electorate but voted down in referendums. The Agreements have essentially set in motion a second round of these processes – with of course no guarantee that the outcome will be any more successful in either providing for a genuine democratic framework, or in delivering any long term political reform. A further common feature is that the central issue to (re)surface in the current debates is over the relative powers of the President, and whether the Prime Minister, provided for in the interim, will be a permanent feature.

A Kenya draft, ‘harmonised’ Constitution was published (17.11.09), which received written comments by the public (and parties) before a revised version went back to the Parliamentary Select Committee (PSC-K). What distinguishes the Kenya process, as well as it being commendably on schedule, is that the drafting was given to a Committee of Experts, who were both qualified and non-partisan. They apparently took into account both of the two drafts that had been in contention in 2005 and tried to come up with the best hybrid. They seemed to get a consensual view from Cabinet on most of the matters in the draft, except that the crucial issue of the roles and powers of President and Prime Minister was still at issue. Commentators draw attention to the terms of this on-going polarisation, which still equates ‘President’ personally with Kibaki, and ‘Prime Minister’ with Odinga, regardless of the possible changed circumstances after the next election. It is interesting that Professor Yash Ghai, who slaved away tirelessly between 2002 and 2005, as chair of the Constitutional Review Process, in trying to get an agreed draft between a civil society and a parliamentary version, took a position in favour of avoiding it being put to a referendum, presumably that that would once again bipolarise opinion and inflame ethnic antagonisms. His view was taken by some parliamentarians of both parties, who then formed an alliance against the draft, including politicians from the Rift Valley wary about centralisation and land rights and the churches resistant to provisions for the rights of Islamic customary law. Notwithstanding, it was finally put to popular vote in 2010 where it was endorsed by a substantial majority, with the no vote heavily concentrated in certain regions.

In Zimbabwe a constitution review process has begun and is to be led by a Parliamentary Select Committee on the Constitution (PSCC-Z), and consultations with the public were to take place throughout the country. However, progress with this Outreach Programme has been slow and contentious. The first stakeholders meeting in July 2009 was disrupted, allegedly by ZANU-PF rowdies, and had to be discontinued. Public meetings and plans for travelling teams around the country were put on hold during 2009, reputedly through lack of resources. But the EU and other donors picked up part of the tab for such consultations in 2010. The PSCC-Z’s co-chair from ZANU-PF was moved to point to disputes between the Committee and the Constitutional Affairs Minister, from MDC, as to who would lead the process. The setting up of sub-committees of local experts, nominated by the parties, by the PSCC-Z on the media, elections, anti-corruption and human rights were also delayed. The coverage of the Outreach Programme has thus been sporadic and often met with interference and violence. Amid this turmoil the prospects of a draft emerging that has been endorsed or even written by public consultation have faded, and what seems likely, at end of 2010, is a formula bargained between the parties.

As in Kenya, there has been controversy as to which draft should be the basis for discussion: ZANU-PF arguing for the ‘Kariba Draft’ that was put together by representatives of the two main parties, before the GPA, in 2007. Both MDC factions now point out that that was agreed at a time when their bargaining position was limited, and that the old National Constituent Assembly (NCA) draft, plus the one put to the 2002 referendum and even the existing Lancaster House Constitution, should also be there as reference points. The NCA, an umbrella body which had played a prominent role in debates in 2000-2002, and then developed an alternative draft to that put to the referendum by government, this time has announced the launch of a parallel civil society process, mobilising for a no vote. Again paralleling the Kenya debate a crucial issue is around the relative powers of President and Prime Minister, and the Kariba draft does give the former almost unaccountable executive powers. There is also controversy over citizenship, which ZANU-PF has defined in a narrow way in its rhetoric and campaigns to exclude not only whites but also second and third generation farm-workers with Malawi and Mozambique origins.

Progress has been made in that Human Rights, Media, and Electoral Commissions have actually been set up in Zimbabwe. The first has already been wracked by the issue of whether its remit should stretch back to Independence or just to the GPA. But 2010 ended with disputes about the timing of elections, with Mugabe calling for elections in June 2010, leaving little time for approving a constitution let alone allowing debate over it.

Addressing Land and Other Underlying Issues

The agreements in both countries recognised certain basic socio-economic issues as sources of instability and conflict, which deserved attention in the medium to long term, in addition to the electoral and constitutional reform that might help avoid future disruption. Central among these was the matter of access to land and national resources, although the issues posed differed between the two countries.

In Kenya, the National Accord and Reconciliation Agreement picked out a set of intractable issues including explicit mention of the need for comprehensive land policy review. In fact a process of that sort had been going on for a few years, following the 2002 election of the NARC government to replace the Moi regime. There had been recognition of the need to redress a range of land grievances that had not been successfully dealt with in the redistribution of land in the ‘white highlands’, the resettlement programme, and the registration of individual titles to land in most of the former African reserves, at the end of colonial rule, further aggravated after 1989 by an aggressive process of ‘grabbing’ of public lands. This recognition had come about mainly through the vigorous lobbying of civil society groups, and spontaneous actions such as occupations. It was also documented by official inquiries (the Njonjo Report and the Ndungu Report).

A formal process of participatory consultation was set in motion in 2004 by the Act setting up a National Land Policy Formulation Process, generating widespread public debate, in which the civil society actors provided most of the dynamism, and culminating in a National Stakeholders Symposium in 2007, which endorsed a draft for a National Land Policy. However, further steps, including the referral to and hopefully approval of the cabinet, were bedevilled by the rejection of the proposed revised constitution in the 2005 referendum, which codified some of the key proposals of the NLP, and by the split in the NARC government, and then the post-election violence in 2008, much of it revolving around land issues. It wasn’t until June 2009 that the NLP was given cabinet approval and sent forward for parliamentary ratification. Whether this delay was simply a procedural slow-down as a result of these disruptive events, or a result of resistance by elements in and outside government whose land assets were often obtained by dubious, extra-legal processes is a matter of debate in Kenya. It remains to be seen whether the eventual adoption of the NLP is simply a gesture by government (an undoubtedly popular stance) of seeming to address this Agenda 4 (in the terminology of Kofi Annan’s mediating team) issue, only for any implementation to be subsequently stretched out, perhaps deferred indefinitely. Certainly, there has been explicit criticism by a large farmers lobby, the Kenya Land-owners Association (KELA), and MPs from the Rift Valley and overt resistance to the NLP draft that proposes democratic local Land Boards, a clarification of laws, alternative dispute settlement mechanisms as the chief means to sort out the inherited mess of the legacy of post-colonial policies of resettlement on and buying out of former white farmers, plus individualising title to land in African communal areas, together with the grabbing of public land by elites. It also proposes the recovery of the land grabbing and an inventory of public land.

The ‘Land Question’ was seen as so central to the Zimbabwe GPA that it has its own section. But the issues there are different from Kenya, as the country had launched Fast Track Land Reform as a second stage of redistribution of the former white farms from 2000 and pushed the process considerably further than in Kenya. Moreover, what to do about land was at issue between the two main parties, rather than between popular forces and elites across both parties as in Kenya. These differences were acknowledged in the Zimbabwe Agreement: “while differing on the methodology of acquisition and redistribution, the parties acknowledge that compulsory acquisition and redistribution has taken place” (Article 5.4), so they were seeking a compromise. But in fact differences over acquisition are now basically matters for the past. They did agree that “the primary obligation of compensating former land owners for land acquisition rests on the former colonial power” (Article 5.6). The obstacle here will lie not so much with the parties but with UK which has so far refused to accept any responsibility to compensate – a stance which could block any prospect of external financial support for the economic recovery programme that the GPA starts with and to which it accords the main priority. But the GPA does commit to one proposal that presumably was pushed by the former opposition parties, given how reputedly ZANU-PF elites benefited (though not exclusively) from the Fast Track Land Reform Programme: “to conduct a comprehensive, transparent and non-partisan land audit, during the Seventh (current) Parliament, for the purpose of establishing accountability and eliminating multiple farm ownership’ (Article 5.9.a). The land audit has been discussed, put on the back-burner, and then brought up again at official level. The (ZANU-PF) Ministries of Land and of Agriculture were at first pleading lack of resources to carry it out, but support was then promised by the EU and UNDP. Differences remain about the design of the Audit as well as its implementation – over whether it should seek mainly to expose unfair allocations to elites, or should extend to an evaluation of land use and measures for restructuring, and/or be a first step in registering of land titles. The first of these possibilities seems to have generated a polarisation between the parties in the coalition – with one wanting exposure the other cover-up? But the other issues may be contested across party lines and among civil society organisations and experts. In particular the use of the land audit as a base-line for registration would only be worth the considerable extra resources and time if there were agreement about what land tenure system is to be adopted – a matter being actively debated in the context of setting up a Land Commission, which did get under way in 2010, but is by no means settled.

The Political Realities of Shared Power and its Sustainability

From the weeks (and in the Zimbabwe case, months) of dialogue and mediation before the Agreements were signed, and at various stages since, many participants and commentators have been sceptical about the chances of any power-sharing coming about or lasting. Despite these predictions both governments have survived, even if precariously, for two years – and that itself has to be explained, and interrogated for what it says about the political forces at work. But the prospects for seeing out the agreed transitional period until the next scheduled elections are by no means guaranteed and they too require scrutiny.

Originally one line of argument against entering any power-sharing was the principled argument of many ODM supporters and by sections of the international ‘good governance’ lobby. In Kenya the ‘correct’ results had given the victory to Odinga; ODM should rightly form the government. Such arguments were echoed by opposition supporters and independent civil society activists later in Zimbabwe, and by influential regional commentators like Moeletsi Mbeki (2009), who sees the GPA as “a deal that preserves his (Mugabe’s) power”. But such politically correct arguments did not confront the realities of power. The main levers were still in the hands of the former ruling party, and the security institutions were likely to have come into play if the former opposition pursued any Plan B involving mass protest and civil disobedience, even if they had had one. Moreover, in Kenya there was the brutal reality of the post-election violence and its ethnic dimensions, which was threatening to bring down the political system. First and foremost the National Accord was a recipe to end the escalation of violence and displacement, and even then it took politicians on both sides until the end of February before they were pushed by popular pressure and international mediations into finding a formula. But it was perhaps inevitable that those who condemned the idea of power-sharing on principle, were instinctively inclined to retreat into the view that ‘anyway it won’t last’. So, as indicated at the outset, now that they have survived for longer than many anticipated, it is instructive to ask how and why.

Certainly there have been ups and downs. There has not been anything of a ‘honeymoon’ period. In Kenya for instance, in early 2009 relations between the partners became very precarious. There were strong currents within ODM urging its leadership to withdraw from the power-sharing government because it was being marginalised. The President threatened to sack ministers who publicly criticised the government they were part of. This was followed by calls from civil society, notably the influential National Christian Council of Kenya, that parliament should dissolve itself and new elections be called as the underlying issues were not being addressed by government. These demands were all put aside.

Other testing of the power-sharing formula have resulted from new cleavages in Kenya, between leaders and would-be leaders of the main parties, who have their eyes fixed on the next elections and on a post-Kibaki era. Two prominent contenders from each of the two parties have recently been sacked from the cabinet. But such politicking for the next presidency automatically involves possible realignments in the present ethnic alliances that are contained in the parties. In the process other politicians who do not set their sights quite so high, seek to solidify their local base and put it on the defensive by resorting to scare tactics and what the press has called ‘hate language’. Even more worrying is that some are resorting to the build up of local armed militias (see below).

The cracks have seemed even wider at times in Zimbabwe, culminating most seriously in Tsvangirai and the MDC-T ‘disengaging’ from government and ZANU-PF in October 2009 (although he still claimed in a press statement of 16 October that their non-attendance at cabinet meetings did not mean “that were really pulling out officially” – a stance which the Chair of the National Constituent Assembly, an umbrella NGO, called “senseless”). In Zimbabwe especially, there was a great deal of pressure through arrests, beatings, the break up of meetings, and non-appointment of nominees from MDC, which could be seen as relentless provocation on MDC to split away. On occasions the relations between partners have become so fraught that they could not be resolved or cooled by head to head meetings, by the National Accord Implementation Committee in Kenya or Zimbabwe’s JOMIC, and have led to diplomatic interventions such as the international conference called by Kofi Annan’s Institute in March 2009 or his visit to Kenya in October. In Zimbabwe’s case there have been far more frequent fire-fighting meetings involving the SADC facilitator or troika, or even the region’s Summit. But despite the alarums, the basic arrangements have survived.

What has to be recognised in both countries is the enormous extent to which under the veneer of power-sharing political competition has continued, merely taking different forms. Here it is worth recalling the broader context, brought out by many analyses of the operation of African states in the last two decades of neo-liberalism, to the effect that there has been such a curtailing of assets available to satisfy all would-be elites, let alone their clients, that the competition is likely to see more exclusions. This has been true of Kenya since the 1970s and Zimbabwe’s financial implosion from inflation has dramatically accelerated that process since 2000.

With hindsight that the tactics employed before the agreements, and during periodic crises since, have to be understood as characterised by brinkmanship. This has been especially so in Zimbabwe. But the reality in both countries is that neither party leadership wants to be seen as responsible for the unravelling of the government and of the agreements. This is one reason that this often dysfunctional arrangement persists, and for the imminence of break-down being over-stated in the media.

Several other factors operate to provide a counter to the all-too-evident divisive tendencies in the combined governments. One of these is the benefits that accrue to MPs and not just leaders and to those clienteles around them. One canny move from the Mugabe-appointed Director of the Reserve Bank of Zimbabwe, Gideon Gono, was to present all new ministers with the latest model Mercedes, and later MPs were given generous car loans. For most of the MPs, as one Kenya blogger put it, their only source of income is from Parliament. In Kenya MPs benefit not only personally from tax-free benefits but also from patronage purses like the Constituency Development Funds (CDF) whose strings they control, through local committees they set up – though a couple of MPs have had the honesty to disband the committees in their neighbourhoods replacing their relatives and clients with community representatives.

On a grander scale, following the precedent of the new forms of massive corruption that the ‘new broom’ Rainbow Coalition government elected in 2002 introduced (see the best-selling volume by Michela Wrong 2009), there have been signs of scams by elements in the new government and their cronies, e.g. over maize imports – an example of corruption whose impact was clearly affecting the drought-ridden country. In Zimbabwe, too, the cream-off from political control of food relief distribution persists.

In Kenya the determination of those who have not had access to the trough in the past to cling on to the opportunities now open to them is reinforced by the particular ethnic make-up of politics. The political parties have always been coalitions of regional barons who vie for and build on ethnic loyalties. Whatever claims it might have to provide a home for some progressive individuals and to a greater commitment to democracy, the ODM put together an alliance of politicos from the Luo people from the west, excluded from the centre since the 1960s, the neighbouring Luhya, and major elements among the Kalenjin and other peoples of the (divided) Rift Valley, who have been sidelined with the end of the Moi regime. The ODM may only have secured a toe-hold on access to resources, but they are determined to hang on to and enlarge it. The main support base for Kibaki’s Party of National Unity (PNU) were the Kikuyu of the Central Province and their neighbours, the Embu and Meru, whose organisational arm, the Gikuyu, Embu and Meru Association (GEMA) resurfaced after the elections. (They presently have a virtual monopoly of top positions in the security services). They are set on defending their political access to a range of assets, which the more canny among them realise will involve some alliances.

In both countries power-sharing has in fact meant patronage distribution of political posts, jobs, and resourcing of regions, according to the Minister’s loyalties. But any such parcelling out of power has not done away with conflict. In Kenya these have occurred between President and Prime Minister, between the two parties both among ministers and in parliament, but also within parties and between cabinet and parliament. But insofar as such patterns represent a deal, they offer another possible explanation for the power-sharing persisting: maybe the governments that came into being have in fact operated as dual or parallel structures with individual Ministries having their own assets and pursuing distinct policies, rather than government being unified entities. The extent of this is a matter of contention. In Zimbabwe, Tsvangirai took the opportunity in an interview to mark the anniversary of signing the GPA to deny that that GNU was a parallel government. Both governments have in fact attempted to assert some common cabinet control of the policy process. One important avenue through which control can be exercised – in any government – is through the working of the treasury. However, the allocation of funds to spending ministries offers both prospects for joined-up governance, but also for the favouring of departments on partisan lines. Here there is a significant difference between the two cases. In Kenya, the Finance Minister, Uhuru Kenyatta, is from the old regime, whereas MDC-T filled that position – although to some extent Tendai Biti is locked into an on-going struggle for control of national finances with the Governor of the Reserve Bank, which he appears to be winning. It is that position which gives MDC leverage to make sure ‘its’ ministries are not starved, and also allows special ad hoc links between donors and those parts of government that they want to back. But ministries anyway have programmes that they initiate or have inherited, and that they can pursue regardless.

Prospects for Transition

If my view that opportunism and wheeler-dealing among politicians of the old ruling party and the new are part of what keeps the wheels on in these power-sharing arrangements is any way valid, those factors operate in turn to make any serious addressing of underlying issues an unlikely prospect. Already a clear gap has opened up in Kenya between the inclusive government and parliament, on the one hand, and civil society and the citizenry as a whole. Kofi Annan in his closing remarks in March 2009 pointed to the undoubted strength of civil society organisations in Kenya but their sidelining in discussions about the new constitution or poverty and development issues.

In short there are significant forces at work that could ensure the fragile and piece-meal Accord and the unity government survive – for a time. But the chances of basic social and economic issues being tackled and the chances of a democratic system emerging will depend on how far social forces beyond the political elites can be mobilised. At the level of formal organisations, the civil society organisations can continue to mount a challenge to push parties and Parliament to reform. But there are other profound, partially hidden forces in embryo.

There are several short-to-medium term and longer-term questions to explore about the future trajectories of the power-sharing arrangements. First, will they survive to the end of the transition period until the next elections, which has been partly addressed, with the conclusion that there are centrifugal as well as divisive forces at work? Thereafter, a key issue will be whether there can be a ‘free and fair’ election under a reformed constitution, with a possibility of a peaceful transfer of political power and the beginnings of enhanced democratisation, or are other scenarios more likely. These depend on the success of other reforms and might include a possible continuation of the unsatisfactory sharing of power, in a similar or modified form, or another cycle of political in-fighting marked by violence and repression, perhaps on a descending scale of savagery and inhumanity?

Scenario 1: Basic Political Reform and a Democratic Transition

The hope in the mediations and on the part of many who have accepted the fact of power-sharing is that the transitional arrangements will survive long enough to ensure the next election is conducted under a non-partisan system and a political environment where constitutional and other reforms will have modified the nature of political competition and the governance system, and underlying issues polarising politics will have been addressed.

Scenario 2: the Status Quo

And it shall come to pass that 2012 will come towards us at a rate of 60 minutes per hour and when it is here, we shall vote new leaders who will continue doing more of the same as the current ones and we shall continue to write in anger and criticism till we grow old and our children take over the same from us. Someone must stand above all tribalism and save Kenya.

(Daily Nation blog, 13.xi.09)

One of Kofi Annan’s main findings at the conference on lessons learned from Kenya power-sharing that his Institute hosted in March was that: “the Coalition Government (sic.) is perceived as neither implementing agreements, pursuing reforms, nor prioritising Kenya’s basic needs”. In both countries if foot-dragging or rhetorical ‘reforms’ without substance remain the predominant trends it is conceivable that the end of the transition period and the date for the next elections will indeed arrive without settling the constitutional and the Agenda 4 issues and with no guarantee of a fair election. In that case the basic patterns of politicking in Kenya will continue: still the competitive game between clusters of barons atop a tiered pyramid of patron-client linkages (as Leys described it in 1975), with few alternative channels of accountability to a broader public. Whether that competition will descend into a repetition of the post-election violence, or even more profound and sustained violent conflict envisaged in Scenario 4 will depend on whether the one reform that actually gets through is a new electoral commission – although that may not be sufficient, for it must be remembered that the conduct of preliminaries and actual voting in 2007 was found by many observers to be exemplary, up to the count! (One finding of Kriegler must also be registered: the Report admits to amazement at the degree of geographical inequalities of gerrymandered constituencies – the reversal of which will be a major test of how far ethnic arithmetic can be overcome). Given the kind of wide discontent expressed in the blog it is doubtful whether any such set of cosmetic changes can be sustained in the longer run, but the system might hobble along for many years before a groundswell of a different kind of politics matures enough to sweep it away.

In Zimbabwe the holding of an election without other conditions being met, especially the rule of law in place, will be less sustainable. There are some limited possibilities for some reshaping of political alliances. After the elections there were major divisions within MDC-T over the wisdom of power-sharing, but the factions held together, and sceptics have played a key part in the GNU. The smaller MDC-M has taken measures against internal dissenters, expelling five MPs in July 2009. Its future position, given its base in Matabeleland, may be affected by the re-emergence of ZAPU, mainly in that region, and how successful that might be. Insofar as it succeeds in garnering some support, it will represent a cleavage within ZANU-PF. The ruling party had in fact seen one break-away leading up to the elections, after the ex-Minister of Finance (and Leeds graduate) stood as an independent against Mugabe. The 10% of the vote he received may represent a significant factor in any realignments, although his failure to launch a party means that this cannot be counted upon as an organised, and thus lasting, faction. But the major cleavages are those within ZANU-PF itself as the two (or by some analyses three) factions jockey for the succession. That prize may well inhibit any short-run prospects of a split. Much will depend on the forthcoming ZANU-PF Congress in December 2009. But the 2011 election is most likely to be fought by the two present main groups.

Scenario 3: Undemocratic Structural Change

The most clear-cut example of what might evolve under this heading is contained in a speculation made by Mueller (2009) that repositioning of clusters of regional/ethnic barons, “may mean Kenya has back-tracked into a one-party state” (p. 205). Such an eventuality would be the polar opposite to an oft considered option of the break-up of the existing coalitions of ethnic/regional groups along the fault lines that each party, like all since 1963, contains. The axis of the present ODM lies in the alliance between Luo politicians lead by Raila Odinga, with a more disparate cluster of MPs from Rift Valley. But, as noted above, some of the Byzantine plotting and courting that has been going on since the elections has presaged possible new alliances, as well as fissures within the existing parties. Moves seem to be afoot that might link the Rift Valley cluster with that of the Kikuyu, but also a shift to a Luo-Kikuyu axis reminiscent of the early 1960s. In any such manoeuvring no one of the three major or other groupings would want to be left out, so a compromise where they all sign up to a common umbrella body is not out of the question. So a return to a voluntary one party rule may not be so far-fetched.

Similar fault-lines within existing Zimbabwe parties are discussed above. And these seem to be a more likely trend there rather than any return to a coalition uniting all parties. However, if there is to be a split between the factions within ZANU-PF, it is not unthinkable that one or other of them might look for some merger formula through which some of them would retain office – especially in circumstances where some of the politicos make a realistic calculation that ZANU-PF might well lose a free and fair election. For the moment the calculation that they can reap enough benefit from recovery to win a vote, and/or that even a future election can be manipulated seem to hold sway. But in the last resort each party has a sufficiently distinct sense of its own identity, and antagonism against its rival that continuing working together is unlikely. At root MDC represents a project to change the regime, and this may have been taken on a stage within power-sharing, but it does not represent a basis for continuing a government of national unity.

Scenario 4: Descent into Systemic Violence

Kenya has seen a long pattern of violent conflicts leading to displacement of people that amounted to ethnic cleansing, before and after general elections going back to 1992. Underlying these outbursts are organised groups, such as mungiki, a semi-clandestine network among young Kikuyu, and the Taliban. The former has articulated slogans derived from the ‘land and freedom’ army of the liberation struggle. Its members have been targeted by the paramilitary police[4], but have also been secretly relied on by some politicians (see Katumanga, 2005). In Nairobi and Mombasa slums and in contested rural areas this logic of protection for communities and political mobilisation based on militias has been reinforced among other ethnic groups following the post-election violence and ethnic cleansing, as exemplified by the new militias being formed around local politicians. An apparent intensification of this particular form of preparation for the next elections in early 2009 was identified as sufficiently severe to threaten the unity government (IRIN News, 10.iv.09). These groups thus interact with politicos who have a place in the governmental structure, and are at the same time targeted by state security bodies. But some of these forces may not prove go beyond manipulation by politicos and a politics beyond patronage may even emerge. There are rumours that mungiki itself is trying to transcend its Kikuyu base.

Against this perceived threat of politicking taking on more violent forms, the setting up of Kalenjin Council of Elders in the Rift Valley in mid-2009, and its rapid reconstitution to rope in a handful of senior ex-military officers, was viewed with concern by constituencies in other provinces and by the EU, especially given the finding of the Waki Commission into the post-election violence about the role in it of former military personnel. However, other commentators have suggested that the presence in KCE of figures like ex-Chief of General Staff, General Daudi Tonje, and Elijah Sumbeiywo, ex-President Escort Commissioner and IGAD mediator in Somalia, might represent disciplined and steadying influences for peace. At the same time there is a widespread and systemic pattern of violent conflict across most of northern Kenya, often not given public attention in considerations of the politics of violence, but on an aggregate scale generating large numbers of dead, injured, displaced and loss of livelihoods. All these are instances that lead Mueller (2009), for instance, to conclude that one basic feature of Kenya politics is that the state no longer retains a monopoly of the means of organised violence, and to see this factor as a major amplifier of the 2008 post-election violence.

There is also evidence that the state-induced violence and extra-judicial killings brought out in the Alston Report are continuing. In November 2009 the Police Commissioner ‘declared war’ on mungiki, vowing to “hunt down all members” (of whom there are said to be a million!). This statement followed a day-long operation in which 8 suspected members were detained in Ngong and 9 were shot dead in Nairobi (Daily Nation, 11.ix.09). Just earlier the leader of mungiki’s overt political wing, the Kenya National Youth Alliance, was shot down in early November, human rights activists and an ex-MP claiming he was taken out by the police.

By contrast, Zimbabwe’s continuing violence is predominantly of the last category of state-induced, including both repressive actions by state security agencies, some of it extra-judicial, and acts by various militia groups initiated by or in the name of the ruling party. Some of these arrests, tortures, beatings up and killings are directed at members and activities of the opposing political parties, but also to a wider range of ‘enemies’ – human rights and civil society groups, such as white farmers. What is perhaps the most widespread brutality has targeted whole social groups such as the vendors and ‘squatters’ bulldozed out of towns in the clear out of Operation Murambatsvina, sporadic repetitions of which are continuing to this day, the violent displacement of small diamond and metal miners from eastern Zimbabwe and elsewhere, and of farm workers. A major dimension of the struggle for ‘normality’ and the rule of law must be to use the transition of power-sharing to curb these violent processes, using the access to the state institutions now available – although against the current of a politicised judiciary and security services.

A crucial differentiating feature of Zimbabwe’s politics has been that apart from some flirting with civil disobedience neither the MDC factions or other opposition groups have pursued tactics that have involved the preparation for armed struggle or counter-militias, despite allegations and even prosecutions. Nor is there the same degree of ethnic polarisation of organised political bodies that provides such a combustible social context for violent confrontations between communities in Kenya. Thus the prospects for this kind of scenario depend essentially on whether ZANU-PF can be weaned away from thuggery and enforcement, or whether in some future circumstances – in the event, say, of electoral defeat or the breakdown of the transitional government – they would seek to rule through the barrel of the gun without any pretence of due process or representative government. Some signs of possibility that some elements with party connection maybe preparing for such an eventuality are emerging. One incident involved the theft of guns from an army arsenal in November 2009, for which MDC-T was accused, although other trails seem to lead back to the military. John Makumbe of the University of Zimbabwe is quoted by IRIN (19.xi.2009) as saying “it was unlikely that the theft of weapons was part of a plan to create a resistance movement to any future MDC government, and was more likely to be the work of one of two ZANU-PF factions, which both wielded influence over the military…. (they) are trying to upstage and outflank each other in the battle to succeed Mugabe, and we may see some people being eliminated”. Another commentator quoted in the same article felt it likely “that the announcement of the date for another election will see violence increasing, as the infrastructure of violence is still there”.

Lionel Cliffe is Emeritus Professor of Politics and Honorary Research Fellow in the School of Geography at the University of Leeds.

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[1] The original version of this article was presented as a paper for the LUCAS/ROAPE conference on ‘Africa & Democratisation’, Leeds, 4-5 December 2009. Some up-dating covering events up to October 2010 has been added.

[2] This broader project, which also extends to include South Africa, has benefited from an Emeritus Research Fellowship from The Leverhulme Trust, which is gratefully acknowledged.

[3] Tapera Kapuya ‘Deferring democracy: Dining with a delinquent: It takes more than three people to design a country’s constitution’, 23 July 2009, Issue 443 http://pambazuka.org/en/category/features/57943. His logic is revealing when he argues: “… people’s hunger and suffering was used to capitulate and compromise democratic principles instead of being seen as the objective factors upon which the struggle for democracy would be fought and achieved”. But neither here nor elsewhere is the alternative strategy to power-sharing spelled out in any realistic way.

[4] A recent reminder of this pattern was the subject of a critical report (not designated as part of the Agreement but nevertheless related to the transition process) by the UN’s Special Rapporteur on Extra-judicial, Summary and Arbitrary Executions, Prof. P. Alston in 2009, which in turn led to two of his would-be informants from a CSO being gunned down in public by unidentified assassins in March.

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