Saturday, 27 October 2012 08:21

On Hate Speech


A certain journalist said to me, ‘East African Breweries has a lot of brands but the one that defines them is Tusker.’ ‘Hate speech,’ he said, is NCIC’s Tusker.

The National Cohesion and Integration Commission was created under an Act of Parliament after Kenya’s 2007 and 2008 post election crisis and the subsequent political negotiations led by Dr. Kofi Annan. Among its key mandates is dealing with and mediating ethnic, religious and race related conflicts and promoting peaceful and harmonious co-existence among Kenyans.  Hate speech constitutes 15 percent, if not less of the NCIC mandate. Yet it has remained the yardstick by which NCIC is judged by, the proof for the average mwananchi that NCIC is ‘doing a good job’.

This yardstick was set mainly by the events of the post election crisis that made Kenyans realise how fragile peace is. From both the ODM and PNU campaigns in 2007, Kenyans have seen the significance of how directly hate words can translate into violent actions. They are therefore more alert to hate speech than ever before and long before law enforcement officers move towards investigation, they will usually raise the alarm to the NCIC.

There are only 6 months to go to a March 2013 election and hate speech, as is usual, peaks in election years.  Most Kenyan politicians have proved to have few ideas on campaigning on platforms other than the usual ethnic ideology of the ‘we’ versus ‘them’ campaign method. Unfortunately, the law cannot tame these ethnic ideologies that are supplanted so deeply within Kenyans.

The upright leaders can tame it though. However those leaders who seek to do so seem not to either find an audience to speak to that will be attracted to their ‘boring’ politics or do not have the courage to fall on their own sword and commit political suicide by campaigning on say ‘a development’ agenda as opposed to ethnic balkanization.

The act of hate speech is defined in the NCI Act as being carried out by

13. (1) A person who-

(a) Uses threatening, abusive or insulting words or behaviour, or displays any written material;

(b) Publishes or distributes written material;

(c) Presents or directs the public performance of a play;

(d) Distributes, shows or plays, a recording of visual images; or

(e) Provides, produces or directs a programme;

Which is threatening, abusive or insulting or involves the use of threatening, abusive or insulting words or behavior; commits an offence if such person intends thereby to stir up ethnic hatred, or having regard to all the circumstances, ethnic hatred is likely to be stirred up.

The Act further says that:

(2) Any person who commits an offence under this section shall be liable to a fine not exceeding one million shillings or to imprisonment for a term not exceeding three years or to both.

(3) In this section, ‘ethnic hatred’ means hatred against a group of persons defined by reference to colour, race, nationality (including citizenship) or ethnic or national origins.

And farther, that under offences of racial and ethnic contempt in 62(1): Any person who utters words intended to incite feelings of contempt, hatred, hostility, violence or discrimination against any person, group or community on the basis of ethnicity or race, commits an offence and shall be liable on conviction to a fine not exceeding one million shillings, or to imprisonment for a term not exceeding five years, or both.

(2) A newspaper, radio station or media enterprise that publishes the utterances referred to in subsection (1) commits an offence and shall be liable on conviction to a fine not exceeding one million shillings.

NCIC receives an average of twenty complaints per week, and recommends a few extreme cases for prosecution. The Act also provided for arbitration, conciliation and methods as well as softer options to prosecution such as cessation notices. These notices have been sent to several people in lieu of prosecution and many other cases have been conciliated and mediated.

A lot of groundwork has been put in place on hate speech but, as yet, without a high level conviction of a prominent Kenyan (low level hate speech actors were convicted in the referendum period). Kenyans feel that the ‘NCIC Tusker’ is not only failing in defining the rest of the brands, but is in itself not selling.

The first experience of trying out the efficacy of the NCIC hate speech laws on prosecution was in the lead-up to the 2010 national Referendum on Kenya’s Proposed Constitution. NCIC had recommended a number of cases for prosecution in court with the most visible featuring three members of parliament. The decision to forward the cases for prosecution as opposed to dealing with them through, for example, cessation notices was informed by the macabre similarity in what the politicians were saying with what was contained in hate leaflets circulating in the areas under question, advising certain communities to leave.

NCIC had no idea that its task as envisaged in the Act, would not end at recommending for prosecution. The risk factor of the ‘Tusker’ is that however well NCIC does the brewing, the actual bottling and sale is dependent on other arms of Government most specifically the Police, Director of Public Prosecutions and the Judiciary. The brand can only be successful if the conveyor belt runs efficiently.

There are a lot of factors that have so far worked against more successful hate speech convictions for those cases recommended for prosecution. One definitely is the lack of judicial precedence, the other; the perception by the police that hate speech is a misdemeanour not worth wasting time over. Part of the problem starts with the Police training that is itself replete with insults. A policeman told us that when a person complains to him that someone called him say Mkamba or Mkikuyu mjinga, he wonders what the problem with that is as he himself was routinely abused as he trained in Kiganjo, based on his ethnicity. The failure to see the harmful effects of hate speech at such a level surmounts to a general feeling that investigating and prosecuting hate speech is a waste of law enforcers’ time, which they would otherwise be using to deal with  ‘serious crimes’ such as robberies and murders that they were trained to deal with. NCIC also receives a huge amount of complaints that should ideally be dealt with as an offence under the Penal Code or Hate Speech as defined by the Media Act.

NCIC has brought all the actors together under a tripartite committee that has seen the Police, the DPP’s office and NCIC work out strategies on examining cases together before they are recommended for prosecution.  The members of parliament in the case above were acquitted, with one of the issues in question being the strength of the witnesses. However, the action taken to prosecute them on hate speech charges had results. For the first time since the advent of the cell phone and emails in Kenya, Kenyans voted in an atmosphere devoid of hate messages in their inboxes. The suspicion and ethnic animosity still existed, but there was a consciousness that it was illegal to send those kinds of messages. In comparison with the 2005 referendum on the passing of the Constitution, the hate messages and speeches dipped by 95 per cent.

NCIC has since hired more investigative staff including policemen. It has also, separately built the capacities of police, prosecutors, judges and journalists on the law. The Police have not only received training but recorders as well. Police recordings will be easily admissible as evidence in court and therefore in future, there will be no problems on verifying the motive of the witness to testifying against hate speech. NCIC has also entered into partnerships with the Media Council of Kenya and the Communications Commission of Kenya in a bid to tame the media sites where hate speech has been known to flourish. Investigations, which should lead to closing some of these sites, continue to date.

In the lead up to the 2010 referendum, in addition to working on hate speech, the National Steering Committee on Peace building and Conflict Management (NSC); National Cohesion and Integration Commission (NCIC); PeaceNet Kenya; and, United Nations Development Programme (UNDP) came together to establish a Platform for Peace, dubbed UWIANO which is the Swahili word that connotes ‘cohesion’. However, these four Partners were not only concerned with contributing towards delivery for a Peaceful National Referendum Process, but were keen to see to it that peace building and conflict management initiatives are scaled up towards the 2012 general elections and beyond. UWIANO’s key strength is the link it provides between early warning and early response or intervention to conflict situations. UWIANO receives and processes information and offers opportunities through the four organizations to resolve potential crises before they materialize. These rapid response initiatives have impacted on quick interventions on hate speech.

NCIC has learnt quite a few lessons from dealing with hate speech. One is that the key defining factor of whether a statement qualifies as hate speech or not is the thin line that exists between freedom of expression as guaranteed in the Constitution and hate speech as an offence.  This means that there is only so much that can be done without people feeling offended that NCIC is looking over their shoulders to stop them from speaking their minds. The other is that prosecuting a hate speech case in court is a lot of work, from court attendance to ensuring witness participation and conducting thorough investigation. Moreover, frequently, there are people who are recipients of hate speech that are afraid to fight back. This includes for example, NCIC’s recent efforts at getting witness statements from the South Asian community in Kisumu over an incident at the Nyanza Club where they were threatened with expulsion. NCIC also has seen complainants from Universities alleging bias, including awarding of marks on the basis of ethnicity, afraid to have their names revealed.

Hate speech has its historical bastions, grounded in ethnic and racial ideology that is difficult to fight back.  Statements such as ‘Luhyias can only be cooks and watchmen’ frequently attributed to Joseph Kamotho, KANU’s former Minister, were obviously made with this in mind. This statement was a seed that was planted in fertile ground that was receptive. The challenge of dealing with ethnic and racial stereotypes so that they do not become acts of discrimination, continues to bedevil NCIC. The impact of the statement attributed to Kamotho was brought home to the NCIC while recording its TV show, Road to Cohesion, in Kakamega. The TV audience, consisting mainly of Luhyias, was at pains to explain that other communities also produce cooks and watchmen. It was a painful process to see the evidence of Jean Paul Sartre’s statement that communities ‘allow themselves to be poisoned by the stereotype that others have of them, and they live in fear that their acts will correspond to this stereotype’. Kamotho owes the Luhyia an apology.

Another lesson is that there is common resistance to difference that leads people to define others by what they do not know of them, rather than what they do. Hate speech is clearly an offshoot of intolerance to difference.

The other lesson is that people accused of hate speech on the grounds of ethnic incitement frequently become their communities’ heroes. It became very difficult for NCIC to function in the areas that the Members of Parliament were charged with during the referendum because as we were frequently told, ‘they said what was in our hearts’. The same sentiments have been seen to arise with the charging of three Kikuyu musicians in Court. NCIC recommendation of charges against hate speech frequently follows a familiar script. After the publicisation of the case some members of the ethnic community from which the accused comes from will complain, claiming victimization. At such times, it is common to hear NCIC labeled the ‘hate commission’. In other words, NCIC is damned if it does and damned if it does not.

Besides the curbing of hate speech, the Commission remains acutely aware of its wider mandate to address differences in access to opportunity that has economically segregated whole swathes of parts of Kenya. NCIC has recently published Africa’s first ethnic and race relations policy, coming hot on the heels of its audit of the ethnic diversity in the public service and the universities. These audits presented the clearest picture so far of the exclusion of marginalized groups. The universities led by the Minister of Higher Education, Professor Kamar, have since adopted and strengthened NCIC’s recommendation and are taking visible steps to bring on board minorities as well as ameliorate past wrongs.

NCIC has also led a number of communities in conflict such as the Kikuyu and Kalenjin, Gabra and Borana, Kisii and Kalenjin and Tharaka and Tigania in community mediations that channel their differences through social contracts that define dialogue as the most important component of conflict transformation. The mediation projects have given an opportunity to engage the machete wielding youth who characterized Kenya’s 2007/2008-post election violence, knowing fully well that many of them constitute the low level perpetrators who were not arrested. All the social contracts define hate speech in detail within the context of the communities in conflict, highlighting what the communities feel are statements based on ethnicity and calculated to incite.

Important national conversations were generated around the social contracting, the ethnic and race relations’ policy and the audits. Besides successfully advocating for the end of the quota system in education; NCIC has also ensured that children can go to school in any part of the country and that the inclusion of citizenship education in the curriculum includes the definitions of hate speech. All the above initiatives have long-term implications for entrenching Kenyanness permanently in constructive ways. Unfortunately, the effects are so long term as not to be felt immediately. For a Kenyan populace that wants to see heads roll on a hate speech agenda, it is not good enough to satisfy what Martin Luther King would call ‘the urgency of now’ which in Kenya means a hate speech conviction.

It is instructive to note that even as questions arise on what is needed to hold Kenyans together and that even in applauding NCIC initiatives, Kenyans still want to negotiate a common understanding on what to do rein in hate speech. When NCIC launched the National Essay Writing Competition on the theme of Ethnicity, Race and Nationhood for youth between 11 and 25 years in educational institutions, the youth prevalently mentioned hate speech even in essay questions that had not specifically made direct reference to the need to respond on hate speech. Young people clearly think that addressing hate speech is a priority for Kenya.

In taking the cohesion and integration conversation to schools, NCIC trained drama teachers, sending them on a trip to the genocide museums of Rwanda, and sponsored the 2012 schools and colleges drama festival, billed as East and Central Africa’s biggest annual arts event. The winning plays featured students prepared to win elections at all costs, using all the tricks that politicians use, including hate laden songs. Another featured students who went through a criminal justice system in which hate speech cases never seemed to end, the matter was either adjourned, the judge absent, the witness unavailable or the file lost! We got the message; clearly the need for the NCIC ‘Tusker’ to sell is still great.

The Kenya Kwanza campaign, a multi media campaign with a host of goodwill ambassadors with big names such as media show host Julie Gichuru and mediator Lazarus Sumbeiywo in which Kenyans pledge not to resort to violence has helped in the sense that it acts as conflict prevention insurance.

Towards and after the election, public information and education to demystify conflict prevention strategies that include naming and shaming hate speech mongers is the next course of action. The NCIC has more cases lined up at the DPP and the Police waiting for action as well as more lined up for mediation and conciliation. The bigger and greater challenge on hate speech will be to move away from the threat of legislation to the promise of knowledge and understanding. The cultivation of a Kenyan identity, or the promise of a Kenya with space for everyone that could provide the answer to cutting across differences, hostilities, divergent perceptions and contestations commonly inherent in relationships; remain beyond reach for now until the country harnesses energies linked to tolerance, national cohesion and integration.  And for the ‘Hate speech as NCIC’S Tusker’ debate, cohesion is an evolution, not a revolution.

Alice Nderitu is a Commissioner with NCIC. In January 2010 she was among 21 women mediators selected worldwide to share experiences on mediating armed conflict with students at the John Kennedy School of Government at Harvard and with policy makers in Washington DC


Published in Cover Story

Author: Sadakat Kadri (Bodley Head)
Reviewer: Warris Vianni

In early 2008, the spiritual head of the mother church of over 5 million Kenyans addressed a distinguished gathering of lawyers in London, where he spoke about law and religion in societies where people of different faiths live side by side. He spoke with special reference to the Shari’a (in Arabic, literally, the path to water); he did so in the context of a theme close to his heart: the place of the sacred in man's life, and how law and public policy should try to accommodate the spiritual aspirations of citizens in a modern society. His call to cohesion by way of tolerance and enlightenment was also a call to Muslims: it cut both ways.

In the course of a lengthy, subtle and complex disquisition, the cleric observed that Shari’a, as legal practice, is already observed in the United Kingdom, home to more than 2 million Muslims. As in Kenya, most Muslims there would not, for example, consider themselves to be lawfully wedded unless they had been through a religious ceremony; many also look to the Shari’a to guide their lives in areas such as funerals and inheritance, bank borrowings and dietary rules.

But given the hateful times we all live in now, an almighty palaver ensued. The watu (that is in England) were scandalised by reports that the Archbishop of Canterbury was calling for the application of Shari’a in the legal systems of the United Kingdom. They felt a great dismay that the ordered calm of the commons, parks and gardens of England would henceforth be disturbed by regular Friday floggings, amputations and stonings. Their reaction confirmed the potential for silliness in watu anywhere when possessed during moments of madness.

Kenya saw something similar during recent debates about the new constitution. Then, a few churchmen - possibly inspired by funding from churches in America - urged their flocks to vote against the proposed katiba if it continued to honour solemn pledges to respect the established place of Shari’a made when the Coast was handed over to Kenya in 1963.

In its excitability, the English public forgot its own taste for a good public hanging, as it forgot other aspects of its history. The Archbishop addressed his audience at the Royal Courts of Justice on the Strand, about a mile away from Downing Street, where, until recently, sat the Judicial Committee of the Privy Council, an ancient court constituted by the Crown. For over a hundred years, the Privy Council heard appeals on points of Shari’a from territories across the world, including Kenya, where the British held sway. As such, its judges, mostly elderly, white and Christian, added to the corpus of Islamic jurisprudence in the enriching encounter with other civilisations where the British were proving themselves. But the outcry in 2008 suggested that what was considered good enough for the natives over there was now no longer considered good enough for the natives over here.

Sadakat Kadri’s Heaven on Earth - A Journey Through Shari’a Law is an entertaining and thoughtful journey in the form of memoir and travelogue, history and opinion, written for the intelligent but perplexed lay reader interested in finding places of silence and understanding beyond the commotion and misery since those jets took off on a bright and sunny American morning. Kadri felt the need for such a book following the horrors of an English summer’s morning in London on the 7th of July 2005.

Despite the misgivings of some of his informants at madrassas in the various countries he travelled, our author is interestingly qualified for his undertaking. Kadri, an English barrister, is a direct descendant of a mystic who set off from home in 12th century Mecca on his own quest for a place of water, ultimately finding his resting place in a country now known as India. The ancestor’s brooding mausoleum is at the heart of a shrine centre at Badaun, famed in northern India for providing relief to the wretched, the frightened and the maddened said to be possessed by jinns. It is here, at this cemetery littered with medieval funeral vaults, in the gloom of dusk, with the perfume of incense and the sound of sobbing that we start on our journey through the Shari’a.

The Shari’a is not a codified body of law, and it is not to be found by thumbing through the pages of the Qur'an, the compilation of recitations that Muslims hold were revealed in 7th century Arabia as a miracle, and as a sure sign of God’s love for humanity.

From over 6000 verses, only about 70 can be said to be of a purely legal nature; the Qur'an specifies 4 criminal offences: 4 sins against God that humans are ordained to punish here on earth. Repeated throughout the scriptures is the exhortation to mercy and compassion.

The Shari’a is a guide to the moral life that a Muslim should live drawing upon 4 sources: the Qur'an itself, the lived life of the Prophet, the consensus of learned scholars and the use of reason. There are 4 schools of law in Islam, reflecting cultural, geographical and political differences in the early Muslim world; the variations are not substantive and they do not involve fundamental doctrinal differences.

The Shari’a developed over centuries, and its history is populated by virtuous men, mendacious lawyers and questionable witnesses. Its development is also rich with surprises. One example straddling the ancient and the modern world is the admiration that the Ayatollah Khomeini had for Plato's thoughts on the ideal state led by rational and virtuous men, so much so that he borrowed on them to create the Islamic Republic of Iran. Unsurprisingly, we also learn about the inevitability of executive discretion, known as siasa, which the jurists obligingly furnished caliphal administrations with for the more orderly despatch of the grubby business of government on earth.

Kadri looks first at the history of Islamic jurisprudence and then turns to the status of Shari’a today. The first half of his book reminds one of the opening lines from a chapter in Alice in Wonderland, where the protagonist settles upon making a grand survey of the country she is going to travel through. Even for those of us resigned to folly rather than perfection in a world with or without eternal truths, Kadri's historical survey is enchanting for its depiction of sophistication and beauty, as much as it is shocking for its description of a world of disputation and appalling cruelty. In its own way it makes for a reassuringly human story of agency and contingency, adaptation and innovation. Muslim readers will marvel at their own extraordinary inheritance, just as a jaded, modern sensibility might, if lucky, be rewarded with a fleeting glimpse into the sense of awe and wonder felt by people who are touched with the sense of having been gifted something extraordinarily special and profound.

It is probably beyond the scope of his work, but since the edifice of the Shari’a is built on a set of suppositions, the reader will notice that the author has, at the outset, closed the gates to certain lines of enquiry with a carefully worded insurance policy. A good insurance policy is prudential when travelling through dangerous territory, but it is disappointing that the author, a good lawyer, does not test key historical assumptions.

Honest scholarship asks challenging questions about the history of the foundational texts and the leading figures in Islam. Many Muslims remain discomfited or outraged by such questions. Mostly, they remain uninformed of such scholarship.

There are even larger questions about the dangers in the mostly Semitic idea of 'religion', with its claim to the truth, the entire truth, the exclusive truth. Godly magic in the hands of humans bent on creating a 'just' society on earth can be a worrying prospect. Clifford Longley in Chosen People: The Big Idea That Shapes England and America explores the career of just such an idea in Christendom and looks at its impact on the overweening outlook of the West.

Notwithstanding a surprising fondness for the hackneyed expression by this Cambridge and Harvard educated lawyer, there is much of value in Kadri's Heaven on Earth. It is as well, therefore, that the book's prospects amongst a wary and suspicious Muslim readership - potentially its most crucial readership - will be greatly improved by having imprinted on its cover the name of a Muslim writer.

There is a saying from early Islam, which enjoins Muslims to travel, if necessary, to China in search of knowledge. Since China is not known as a place of heavenly revelation, the knowledge to be found there is presumably of the worldly variety. In Heaven on Earth, the reader, Muslim or otherwise, will not need to undertake a journey through desert and mountain pass to ponder over the heavenly as well as the decidedly earthly. Sadakat Kadri entertainingly reminds us that history is rarely tidy; it is sometimes dangerous and susceptible to revision and forgetfulness. It helps us to also recite our histories.

Warris Vianni read law at the London School of Economics and Cambridge

Published in Book Reviews
Tuesday, 01 November 2011 11:40


By Sunny Bindra

There it is, tucked away in Nairobi's Highridge area: the strangest of shopping malls. Like some bizarre human-sized rabbit warren, full of confusing corners, surprising staircases and odd little businesses in basements, on roofs, in the car park. You almost expect Alice to pop up somewhere in this wonderland - except that Diamond Plaza, or 'DP' as we locals call it, is a purely South Asian phenomenon, and Alice would have to be called Alya, and be wearing a little salwar-kameez.

You can buy madafu in the car park at DP. Or watch others do it while sipping a coffee on a rooftop. You can get a quick haircut as the cars pile in, looking for that elusive parking space. You can buy newspapers from Mumbai, toys from Shanghai, bhindi from Limuru. You can have a prayer said for you by a priest in full regalia in a tiny mandir, no bigger than a closet; or pick a choice cut from a butchery not too far away. You can eat anything: biryani and pau bhaji compete with chow mein and burgers for your culinary attention; but Kenya's own Maru's bhajia and mayai chapatti take pride of place. Or you could just chew a paan all day long with your fellow idlers, watching the girls come and go.

You can come here to buy rakhis for your brother, barfi for your mother, kurtas for your father. You can buy firecrackers for Diwali, semolina for Idd and tinsel for Christmas. You'll get the best mangoes in December and a range of affordable umbrellas in April. You can choose from a full range of the world's tackiest decorative pieces to adorn your living room. Or you could give it all a miss and go somewhere quieter. And cleaner. And more refined. Nothing really happens at DP at ten in the morning: you can park anywhere you like and watch a couple of sweepers make half-hearted attempts to clear away yesterday's debris. At ten o'clock at night, however, you'll circle for ages looking for a parking slot, and may share a table with three other clans. But you can always do that peculiarly Kenyan Asian thing: eat in your car, en famille. Whatever you do decide to eat, you'll have to contend with swarms of waiters, incentivised to the verge of dementia by tiny commissions on every order taken, waving menus in your face until you finally shout out what you want.

Diamond Plaza showcases the best of us: it has within its walls the quintessential business model. Lots and lots of hard-working, determined and shrewd hucksters who set up their stalls in minuscule cubby-holes, work all hours and turn a neat profit by maintaining a tight focus on what their customers actually need, at a great price. This is the most basic arena of free enterprise: it's where the little people set up shop and take their economic future into their own hands. Individuals, families, communities and entire nations have lifted themselves out of poverty in this fashion, throughout history. It is chaotic and frenetic, and it works.

DP also encapsulates the worst of us: it is dirty, disorderly and not a little dangerous. There is grime and litter everywhere, and no one appears to care. Most of those bustling eating houses have kitchens that would fail a health and sanitation test in Hades. The walls and floors are often pock-marked with the hideous remains of someone's paan, ejected casually. You would not want to visit a lavatory in DP.

Naked wires still hang loose from ceilings. Part of the place is always a construction site, with sand and cement piled up right outside shops open for business. What architectural plans are being followed, and what quality of materials is being used, are not questions you should waste any breath asking. You could spend a lifetime looking for a fire exit, and would not want to be around if someone dropped a lighter.

If you're picky about probity and exacting about ethics, you might find it difficult to shop here. Most of the music and videos on sale are clearly bootlegged, and only the KRA knows whether any duties or taxes are being paid here. But for most DP shoppers those are laughably irrelevant issues, nahin? As one Mr Pattni pointed out to a Judge Bosire recently, we can't go around checking whether duty was paid on everything we buy - whether we're procuring billions of shillings of phantom gold or just the latest Bollywood bop track for a most attractive price.

And then there's the people issue. It's an open secret that most of the folk in those shops and eateries are 'rockets' - illegal immigrants from the sub-continent. Rumours about brothels have always abounded, and many a marriage was rocked during DP's early days by husbands marinated in cheap whisky cavorting with dancing girls into the wee hours.

And yet, could it have been any other way? Perhaps we needed all those rockets to fly in and light up the place, giving us a live testament to the chaotic continent our forebears left behind aeons ago. Perhaps we needed a little India within the large Africa that is our home. Everyone is of immigrant stock in Kenya, after all: some wandered in from the Congo forest or down the Nile; others came in dhows under imperial order. Today's pioneers are flying in on coach class on Kenya Airways.

Perhaps these busy little nouveau immigrants are happily doing what we pampered and lazy third- and fourthgeneration descendants can't anymore: they're working hard; they're doing whatever work they have to do in order to get by; they're saving most of what they earn, instead of squandering it on fripperies; and they're providing service with a smile, rather than the studied scowl that most of their hosts have perfected.

Perhaps, when we open a free-for-all marketplace where all needs are met, we should not be too surprised when drunken debauchery is also traded. It only happens because people want it to. That kind of thing can never be blamed on the suppliers alone: the customers, our kith and kin, create the demand. Supply follows. Free enterprise usually turns out to have its godfathers, and DP is no exception.

And yet DP is evolving. Its worst seems to be past, and a brighter future may be shining through. The dancing girls are gone - or at least are out of plain sight. It's cleaner and brighter than it used to be. Many of the music shops are offering 'original' CDs and DVDs - and are finding a customer base that is willing to pay a little more for quality and legality. A one-way traffic system with new exits is easing the perennial traffic jams. Shops are growing, sometimes buying out their neighbours to create more space and a better shopping ambience. There are more black Kenyan faces around - both in the shops and amongst the shoppers.

It could be so much more, our DP. It is already an example of unprompted, unplanned commerce at its best - perfectly in tune with its market without a planner in sight. It is already a showcase for spontaneous enterprise, a place where the goods of the world arrive to be met by willing wallets. It could also be a place where our wafrika and wazungu brethren come to shop and eat with us, and marvel at the composed chaos we wahindi revel in.

If we had more mutual tolerance, more belief in doing things right, and more acceptance of the laws of the land, Diamond Plaza might be a different place. But then it wouldn't really be DP, would it? Most of its supporters love the place to death. Do they see the chaos, the disorder, the squalor? Heck, no. They see range, relevance and refreshing informality. DP is us. You want order, hygiene, careful planning, safety? Go to the Village Market. DP is an eruption, and that's the way we like it. In any case we choose, because it's a market: we vote with our wallets, or we vote with our feet. So far, the wallets have been winning.

Sunny Bindra is a writer and management consultant in Nairobi. He writes a weekly column for the Sunday Nation.

Published in Cover Story
Monday, 31 October 2011 09:45

Birth of a Nation

By Warris Vianni

The written word probably arrived in what is modern day Kenya by way of merchants’ IOUs, religious tracts and letters bearing news from faraway places in Arabic, Farsi and Gujarati.

Perhaps it is fitting then that Kenya’s oldest newspaper, the East African Standard, should have been founded in 1902 by a gentleman from Karachi and that its largest circulation daily today, the Nation, was founded in 1960 by a gentleman whose family hailed from Bombay. In between these two dates is a rich history of Asian

engagement in the world of newspapers in Kenya. Asian printers and advertisers offered their presses and support for Johnstone Kenyatta’s Muigwithani and Henry Muouria’s Mumenyereri; men like Girdhari Lal Vidyarthi produced distinguished newspapers such as the mockingly titled Colonial Times and Pio Pinto edited the Chronicle. All the while, the authorities looked on disapprovingly.

According to the Corfield Report on the origins and growth of Mau Mau, a meeting of Provincial Commissioners took place in October 1946 at which the question of ‘pernicious propaganda and seditious articles’ in vernacular newspapers was discussed. It resolved that a despatch be sent to the Secretary of State stressing among other matters:

‘That certain vernacular newspapers were being financed and influenced by seditiously minded Indians and that their object was purely anti-Government and anti-European That, as regards freedom of the Press, liberty was being mistaken for licence, and that in addition to deliberate distortion of facts, many of the articles in such newspapers contained a most dangerous and pernicious form of anti- European propaganda That the effect of an unbridled Press amongst uneducated and politically immature Africans was infinitely more serious than that which could be achieved by inflammatory articles in newspapers in England’

It also recommended that the Criminal Investigations Department be expanded to increase scrutiny of vernacular newspapers, action in the courts to follow the slightest infringement of the law and that editors to be so informed regularly. Vidyarthi and his editors made frequent appearances in the courts, charged with sedition, suffering fines, imprisonment and cancellations of licences. It would be easy to read the early history of the Nation Group of Newspapers in Birth of a Nation as a story about a bunch of Fleet Street boys having an adventure in the bush, on terrain inhabited only by a white settler press. The Nation consciously defined itself by reference only to its main rival, the East African Standard, then the housejournal of settler society Kenya.

This reference point obscures the more complex narrative that is the heritage of the liberal press in Kenya today. Commissioned by the Nation Group, Gerard Loughran’s long gestating Birth is a highly readable history of the media group, foregrounded in the history of independent Kenya.

This allows the author to record a richer interwoven story about newspaper and country. Despite occasional frostbite, the Kibaki spring blooms and Kenyans continue to excavate their archives to record and analyse their sometimes troubling histories.

Birth is a useful - if expensive - addition to this endeavour, with the author given access to company papers and records and the co-operation of a large number of interviewees. Of the politicians approached for interviews, none responded; the student of Kenyan politics can draw his own conclusions about the value of scholarly enquiry to its practitioners. The author’s acknowledgements suggest that he did not interview Karim Aga Khan, the man who founded the Nation (at the age of 23) or consult the papers of the late Eboo Pirbhai, the founder’s principal representative in Kenya. Whilst we hear the founder’s voice in communications with his management, it is at a remove.

Of all the princes and presidents who have dealt with Kenya’s rulers, none has had the continuity and regularity of engagement than the founder of the Nation. With his breadth of international experience and his perspective on the predicament of decolonised societies in Africa, the Middle East and Asia, the Aga Khan’s insights into the states of mind of their Excellencies, their world-view as well as their concerns and demands could have been of great value to historians.

Newspapers, it is said, are the first drafts of history and so it is proper that the Nation Group engages in some measure of mea culpa for the occasions when it fell below its own standards and its newspapers failed to speak truth to power.

It cannot have been easy for proprietor and staff to navigate the darkest years, which make for chilling reading. The management could have chosen to settle for a quieter life by selling up to powerful interests or succumbing more often to casually made presidential demands. Sloppy sub-editing, a tendency to treat political issues in caricature fashion and lack of investigative zeal when there is much revealing information already in the public domain strike the reader of the Nation as some of its continuing problems today - and a detraction from a meaningfully free press.

A central problem confronting the Kenyan press is how to deal with a parallel shadow state that legislates secret laws through telephoned orders, decisions made by cabals meeting in obscure 2 star hotels, using brown envelopes and, occasionally, the assassin’s bullet.

Compounding the problem is the pretence that the press - like the ordinary citizen - has to engage in when dealing with the shadow state. The press has to pretend that only the official state exists and that it is acting according to the norms of constitutional order. This Alice in Wonderland predicament has been nourished by Kenya’s obsession with formal legalism at the expense of common sense, basic decency and the truth. Sadly, our newspapers often abet this charade through their tortuously neutral, correct and boiler-plated editorials. It was often said in the early years of Independence that a foreign owned press was a liability, making it vulnerable to politicians seeking an excuse to muzzle it. This charge is rarely heard today as Kenyans travel and learn the ways of the world for themselves. A locally owned press is no guarantee against factional interests, poor management or susceptibility to pressure. In the case of the Nation, the founder’s deep pockets, vision and, possibly, absence from local residence probably all helped in achieving one of its greatest successes: that it has survived, and survived as a national institution and not as a corporate football.

However, the question of ownership does not quite go away. Despite much corporate detail, we are unclear about a few basics: other than the principal shareholder (the founder no longer holds shares in a personal capacity), who are the Group’s largest shareholders? Do these other shareholders nominate members to the Board? Who does sit on the main Board? How are these appointments managed? And how do the interests of Board members intersect with the incestuous Nairobi world of business and politics?

Birth confirms much that has circulated as gossip and speculation in Nairobi for many years, illuminating the tense relationship between press and government. A free those in power. It was bound to be so for a defensive colonial authority, but it would have been interesting if the author had looked at historical continuities and teased out underlying differences. How were the anxieties of a colonial power different from the concerns of free Africa toward expressions of robust fact and opinion? What informed the differences?

Birth does not tackle interesting issues that touch on the production and flow of ideas, language and society in an oral culture. In a dangerous world, language can develop as a protective tool with a highly evolved capacity for subtlety, even downright slipperiness. But ambiguity breeds suspicion and distrust; misunderstanding is a daily hazard, circumspection good insurance.

Newspapermen as loose purveyors of words and strange ideas - with print’s distressing trail of evidence - inhabit a doubly dangerous territory. Tradition conferred little virtue on iconoclasm in the nations that were put together to construct modern Kenya. Men rarely had independent means such as would enable them to spurn society and live by their individuality. The ever-present threat of catastrophe from the risk of failed rains, inexplicable disease, a neighbour’s jealous gaze or a raid from strangers enjoined co-operation, consensus and virtue in obedience. To ask troubling questions and failure to conform was to invite censure, rejection or worse. Reverence for order - and authority - had powerful currency. Loyalty was not a dirty word. When a former president said that he used to sing like a parrot under his predecessor, having no ideas of press is often discomfiting to his own, he spoke a profound truth about his society.

Before Independence, African newspapers operating as charge sheets against colonialism spoke a simpler message, and faced official disapproval. Then came the age of freedom; newspapers - this one owned by a stranger no less - introduced the people to new-fangled ideas, doubted the value of reverence and gave voice to those exiled from the council of elders. The press now conveyed a more difficult, dissonant message. And official disapproval followed. Colonialism was easier to slay, modernity a more monstrous beast.

In Birth, the Nation admits ‘occasional descent to sycophancy’, sometimes with hilarious results such as when it tried to airbrush a tall Aide de Camp out of a photograph to appease presidential vanity, only for the published image to show the hapless man half disembodied. Most remarkable is the disclosure that the newspaper once took a dispute between the Board and the Editor for presidential resolution, laying bare the troubling proximity between press and government. There are areas the reader wishes the author had ventured: the founder’s insights being the most obvious, as well as the circumstances surrounding the disposition of Caledonia House, his former Nairobi home.

The dramatic resignation of George Githii, the Nation’s most flamboyant editor remains perplexing. Githii had written an innocuous sounding editorial arising from a news story about the head of a sub-sect of the Mustaali Ismailis. Why did this so upset the proprietor, who is head of the Nizari Ismailis? Was Githii obliquely making a point? Ostensibly, Githii had breached a rule against commenting on religious matters that was ‘carved in stone’. This raises interesting questions about how the rule has been applied subsequently given the involvement by Kenya’s churches in its political controversies.

There are a few errors in the book but they do not detract from its overall value. As examples, the Colonial Times is referred to as a Gujarati paper, we are told that Ronald Ngala died before Tom Mboya and that Mrs Charles Njonjo’s maiden name is Nisbet (it is Bryson, and her first name is Margaret, not Elizabeth). More surprising is the reproduction of the Karimi & Ochieng account of the Ngoroko affair, a story now regarded with widespread doubt.

The Nation Group is to be commended for opening its archives for this significant publication of its history. Looking to its future, the big question must be how a purely locally owned and managed media group - which cannot be ruled out - will fare as it is drawn into the vortex of pressures engulfing Kenya’s politics without the potential of a distant, restraining hand - or the excuse of it.

Published in Book Reviews

Ethnic (previously referred to as communal) and racial tensions have existed in Kenya prior to independence. After independence the process of ‘reconstruction’ also known as ‘Africanisation’ began. It meant transfer of political power and influence from the former colonial powers to Africans. Africans replaced many Asian and European civil servants. Qualified Kenyan Asians and Kenyan Europeans then and now find it difficult to get jobs in the civil service as the new administrative balance was adjusted to favor Africans to reflect the new changes. After independence, there was markedly more tension between the Asian and African communities than the European and African communities partly because they lived in closer proximity. A commentary from the East African Standard on Friday November 20th 1964 explained the situation this way ‘the criticism so frequently expressed by Africans has its origins in a feeling that they are and have been exploited while another community stands in the way of their advancement………’ Africans have daily contact with Asians in places of business and other jobs they themselves want to occupy’. However there were also ethnic tensions connected to the Africanisation with some African ethnic communities feeling that Africanisation favored some communities more than others. These tensions still exist.

Currently the communities least represented in the civil service are the:

  • Kenya Europeans(2),
  • the Dasnach Shangil(10)
  • Boni- Sanye (44)
  • Kenya Asians (74)
  • Kenya Arabs (90)

NCIC is following up with the civil service on a criterion for representation, which takes cognizance of the need to urgently include the under represented groups with a recommendation that affirmative action should be adopted for groups that are missing out in the civil service while it is the duty and responsibility of the affected communities to promote self reliance by applying for advertised jobs. 

These tensions continue, much of them not finding expression within public space.One of the key messages that came out of the overwhelming support for the new Constitution was the need for economic development, institution building, and provision of basic services and inclusion of all communities.  In 2010 NCIC gave voice to these tensions, traveling around Kenya recording live TV shows on ethnicity and race. This was one of a range of strategies of strategies to promote self-reliance by beginning a national conversation on race and ethnicity to enhance inclusion and cohesion .

All the 9 Kenyan towns we visited raised issue with ethnic tensions. We noted though that race tensions occur only in towns and cities where races meet in a mixed society and that in most cases these tensions are cultural. Nyeri and Kisumu were specific on the tensions between the Kenyan African and Kenyan Asian communities. Both communities were represented and both voiced their thoughts on the tensions between them that are largely as a result of their difference in the social and cultural systems that keep them apart.

It is difficult to discuss these tensions without thinking of the implications of the elections coming up next year, particularly in the light of the ethnic and racial violence that occurred in the 2008 elections. NCIC has developed a broad set of capabilities to promote conflict prevention. This includes placing new emphasis on building civilian capacity to respond to a diverse range of threats that include in conflict prevention linking early warning to early response and mediating conflict for purposes of mediating conflict.

When Kofi Annan showed up on Kenya’s doorstep in January 2008 to mediate the political standoff manifested in widespread ethnic violence between the parties PNU and ODM quite a number of Kenyans were working to end the conflict. But no one could stand in the gap he stood in, as everyone was or seen to be tarnished by the bias brush for either of the political parties.

The specter of more race and ethnic related violence and numerous county election standoffs loom in the 2012 elections. The truth justice and reconciliation process has not touched the epicenter of Kenya’s post election violence, the Rift Valley or the land issue time bomb, the Coast.  As months roll towards the elections a new set of threats are rising in prominence; that of new ‘minorities’ created by the new county arrangement with minorities such as the Kuria in Migori, Kalenjin in Nakuru, Maasai in Transmara, Tharaka in Tharaka seemingly destined by the county’s ethnic voting patterns to political oblivion by the Luo Majorities in Migori, Kikuyu majorities in Nakuru and the Kipsigis majorities in Transmara and the Chuka majorities in Tharaka. 80 per cent of Kenya’s new county arrangements are facing this new threat and even among homogenous societies such as the Kisii and the Somali, clan issues have reared their heads with majorities threatening to out vote minorities. In this new political arrangement, potentially explosive issues such as ethnic and religious violence are elevated. As Justice Johann Kriegler famously remarked in his report on the investigation on the botched 2007 election results, compared to 2012, the violence in 2008 could be a Christmas party.

Traditional structures such as elders and alternative dispute resolution mechanisms are not yet optimized to address this new range of diverse range of threats particularly in intra ethnic conflicts. They also do not provide the full set of capabilities that ensures security operations and medical relief. Yet it is widely acknowledged that one of the reasons for the escalation of the conflict in the first place is the absence, bias or incapacity of the security sector to protect citizens. To see the criminal justice system as the sole mechanism for preventing conflict and delivering justice is loading it too much. Security sector and judiciary reforms will not happen soon enough to avert the conflicts that are being stoked on the basis of the elections next year. The traditional mechanisms can nip a conflict in the bud and prevent its de-escalation. And as we have found out in many instances, the traditional systems and elders are also responsible and involved in the violence. This makes it mandatory for them to be involved in the peace making.It is important to acknowledge this key fact; They own the war and they own the peace.

NCIC has been working to build a broad agreement at the grass roots ‘hot spots’ counties with especially political leadership, state and non-state security and justice providers and civil society. Many of our attempts at establishing a base for self reliance in mediation are successful as among the Kalenjin/Kikuyu in Nakuru, Gabra/Borana in Marsabit,Tharaka and Tigania with leaders, who are not running for political office, acceptable to both groups emerging and commanding respect as negotiators and mediators.These people are ‘insiders’who live in the county, as part of the context within which either the conflict is occurring or about to occur. They are partial in the sense that they may be more aligned to one or more ethnic communities than the other the knowledge and in some cases the resources they offer make them acceptable across the board. Bishop LawiImathiu as a mediator of the Tharaka / Tigania conflict is a good example of this. Much of the NCIC energy is spent in managing the tensions between intra and inter ethnic relations working on the predominant themes of conflict prevention, anticipation of threats, building of trust and linking early warnings on violence to early responses. We only intervene to help facilitate the resolution or transformation of conflict issues.  It has taken us quite a bit of time to accept that competing interests will inevitably remain despite our best efforts and intentions.  As in so many places where violent conflict exists, the relationship between peace and justice, between ensuring accountability and ending violent conflict is very complicated. Results in the self reliance model are determined largely by context; in Nakuru for example the self interests of both Kikuyu and Kalenjin business owners contribute to their efforts towards peace, as do the need by the Gabra and Borana to put behind them a history whose landmarks are shaped by conflict such as the Turbi massacre. Those regions that have experienced violence , displacement, poor governance and insecurity accept the self reliance model of mediation more easily than those who have not as they understand that the proactive cost of prevention is more affordable than the reactive cost of waging war.

More often than not, a partnership between Government agencies and civil society on aligned conflict prevention missions has been the best choice. This is itself is a hindrance towards self-reliance. The relationship between the peace and human rights NGO’s is reflected in the conundrum of whether we can have peace without justice. The human rights NGO’s stand is that to place peace at the expense of for example prosecutions is to subvert justice. Peace NGO’s are largely content with an informed analysis of where tensions exist and why, and how to stop conflict recurring.However many of Kenya’s human rights NGOs have traditionally leaned on a civil political background, grounded in years of resistance to Government heavy handedness. Peace NGO’s on the other hand feel that they are doing the ‘real’ work, promoting peace. NGOs working on conflict prevention are also very diverse in terms of size and focus and willingness to partner with the criminal justice agencies on conflict prevention. They want to maintain their independence and neutrality as well as ensure the security of their staff in conflict prone areas. This has resulted in a new challenge, that of the need to create interagency management and integrated conflict prevention plan from agencies and civil society organizations that have different operational models, expected outputs and philosophies of cooperation. Other challenges include the fact that as we draw nearer the 2012elections, the self-reliance model community mediators’ work will play out on a national stage in all counties.  There is a farther complication in that for NCIC the  plan must target the unique needs of the county as well as emphasize civilian participation and leadership of the self reliance model where the role of external actors is to design programs that fit within the county context.

Meanwhile we work county-by-county, ethnicity-by-ethnicity and race-by-race to ensure that there are enough people who see cohesion and peace as a priority over war. This will walk hand in hand with ensuring respect for Article 232 (1) (h) that ensures ‘representation of Kenya’s diverse communities’ as one of the values and principles of the public service.

By Alice Nderitu. She is a Commissioner with NCIC. In January 2010 she was among 21 women mediators selected worldwide to share experiences on mediating armed conflict with students at the John Kennedy School of Government at Harvard and with policy makers in Washington DC

Published in Cover Story