Kenya, Then and Now
by Rob Martin (July 2014)
On 12 December 2013, Kenya celebrated a half century of independence. Progress has been made, and although Kenya remains imperfect, it obviously did not deserve the bloody and barbaric 21 September 2013 attack islamist militants made on the Westgate Shopping Centre in Nairobi, the capital.
Kenya had an unpleasant colonial experience. It, and Southern Rhodesia, now Zimbabwe, were the UK’s settler colonies in Africa. Thousands of English men and women flooded into Kenya. Few can have had a better life than the settlers in Kenya. They stole some of the most attractive land on this planet, they had vast amounts of money, armies of servants and life was a non-stop sexual free-for-all. An English joke asked, “Are you married, or do you live in Nairobi?” A Canadian, Edouard Girouard, was Governor of British East Africa from 1909 to 1912.
Africans would not accept subordination in their own country. In the 1950s, armed struggle against colonialism and settler domination broke out, led by an organization called the Land and Freedom Army. The Governor declared an Emergency in 1952. The colonial authorities, backed by British soldiers, sought to defeat what they mistakenly called Mau Mau. Both sides committed atrocities. The authorities arrested prominent nationalists and staged an alice-in-wonderland trial at the end of which all the accused, including Jomo Kenyatta, were acquitted of leading and organizing Mau Mau. The Emergency ended in 1960, fighting was transmuted into negotiating and on 12 December 1963, Kenya gained independence under Prime Minister Jomo Kenyatta, who morphed into President one year later. President Kenyatta headed a government defined by corruption and oppression. Political opponents, even ones who had been close associates, Tom Mboya, Pio Pinto and JM Kariuki, were murdered. Kenyatta turned the country into a one party state. Only his party, the Kenya African National Union, was permitted to operate. Kenya did not follow its neighbour Tanzania, and turn itself legally into a one-party state. Kenya’s constitution contemplated multi-party politics. Extra-legal measures were used to prevent parties other than KANU contesting elections. Kenya was a republic, but the style of government was monarchical. Whenever Kenyatta drove through the main street of Nairobi, called, oddly enough, Kenyatta Avenue, police cleared the sidewalks of pedestrians and the roadway of cars, to allow him to sweep by in his enormous stretch black Mercedes.
I was a CUSO volunteer teaching law at the University College in Dar es Salaam, Tanzania’s capital, on my first visit to Nairobi in late 1967. Since I was deeply caught up in Tanzania’s socialist ideas and rhetoric, Nairobi seemed to me bourgeois and effete. Some mellowing occurred and, in 1973, I began a two year contract teaching in the Faculty of Law at the University of Nairobi. One colleague was a young man named Willy Mutunga. We became close friends, primarily because of the radical political ideas we shared. Each of us paid a price for these ideas. During the academic year, 1974-75, my main teaching responsibility was Constitutional Law. I pointed out the ways in which President Kenyatta’s government violated Kenya’s Constitution. One student passed her lecture notes to the Special Branch of the Police. Consequently, the authorities attempted to blame a major student riot, which broke out in May 1975, on me. I spent some time in remand custody in a Kenyan prison. When I reached court for arraignment, Willy was my lawyer. I left Nairobi in June 1975, to teach in the Faculty of Law at the University of Western Ontario, remaining there until retiring in 2005. Willy became actively involved in opposition politics and, in the early 1980s, was placed in preventive detention and dismissed by the university. He went into “exile” in Canada, pursuing doctoral studies at Osgoode Hall Law School, York University, Toronto, returning in 1992 to establish a law practice in Nairobi. He was Chair of the Law Society of Kenya, the governing body for the legal profession, from 1993 to 1995 and played an active role in creating the Constitution of Kenya, 2010. On 20 June 2011, he was sworn in as Chief Justice of Kenya. We had remained in touch since the 1970s, exchanging E-mails over the past five years. Early in 2013, he suggested I go to Kenya to do training with senior members of the Judiciary.
Jomo Kenyatta won rigged elections and remained President until his death in 1978, being succeeded by Vice-President, Daniel arap Moi. The Moi administration’s watchword was “nyayo,” a Swahili word meaning footsteps. Moi did more than follow in Kenyatta’s footsteps. His reign saw orgies of corruption and oppression which went beyond anything in the days of Kenyatta. Moi remained President until 2002, when Kenya appeared to enter an era of multi-party politics. There was a disastrous election in 2007, which degenerated into inter-ethnic bloodshed and violence claiming hundreds of lives. In 2010 Kenya adopted a new, homegrown, dynamic and innovative Constitution, which was tested during a March 2013 general election. Although not perfect, the election happened without violence. Uhuru Kenyatta, son of Jomo, received the largest number of presidential votes. The second place candidate petitioned the Supreme Court of Kenya to have the result overturned. In a meticulous judgment, six judges of the Supreme Court concluded there had been errors and shortcomings in the conduct of the election, but none sufficient to vitiate the result and declared Uhuru Kenyatta lawfully elected. The country accepted this result and Uhuru Kenyatta took up the office of President without incident. Uhuru has flaws and is under indictment by the International Criminal Court for crimes allegedly committed during the 2007 election.
Reflecting on the 2013 election and its aftermath, it appeared as if Kenya were transforming itself into a constitutional democracy. I have, throughout my legal career, been committed to constitutional democracy, the Rule of Law and human rights, especially freedom of expression, and was excited by the prospect of going to Kenya and making a contribution to the realization of these goals. My response to Chief Justice Mutunga’s suggestion that I come to Nairobi in August 2013 was immediate and enthusiastic.
I am 74 years old with a severe physical disability and was determined that neither should interfere with my work in Nairobi. Dr Joel Ngugi, a Judge of the High Court of Kenya and Director of the Kenya Judiciary Training Institute, was superb in drawing up the schedule and making all the arrangements for me in Nairobi. I came to admire and respect Joel and regard him as a friend.
There was a fire, which destroyed the International Arrivals area, at Jomo Kenyatta International Airport (JKIA), Kenya’s main commercial airport, on 7 August. But for the dedicated and skilled work of the Judiciary staff, my arrival six days later might have been disastrous. The International Arrivals area remained in ruins, so the administrators set up tents in which to do the work, one for Immigration and Passport Control and another for Baggage. Members of the Judiciary staff got my visa, retrieved my bags and whisked me to the Norfolk Hotel in a Government Mercedes.
I have a soft spot in my heart for grand, old colonial hotels. Raffles in Singapore is a favourite. The Norfolk was the colonial hotel in Kenya. Even today, it displays photos and artefacts recalling its past. Patrons may sit outside to enjoy a drink and a snack on something called the Lord Delamere Terrace. Hugh Cholmondeley, (chumlee), Baron Delamere, was the leader of Kenya’s European settlers during the early 20th century. Until renamed Kenyatta Avenue after independence, Delamere Avenue was Nairobi’s main street. Delamere was no stranger to the Norfolk, having once rode his horse through the main dining room.
My schedule blended formal presentations and social events. The first formal presentation was to all the judges of the Supreme Court of Kenya at the Law Courts in central Nairobi on 15 August. I began on a lighter note saying, “The last time I was in this building was in June of 1975 and, on that occasion, I was in chains.” The presentation emphasised the importance of the Rule of Law and the judges’ role as its custodians and guardians. My analysis was drawn from the English historian Edward P. Thompson who argued that the Rule of Law could impose “real control” on “arbitrary power” and was, thus, an “unqualified human good.” I highlighted instances from South Africa, Swaziland, Tanzania, Zambia and Zimbabwe in which judges upheld the Rule of Law. I spoke during a dinner for all Kenyan judges, plus a selection of lawyers, at the Intercontinental Hotel on 16 August and returned to the Rule of Law. On 19 August, I spoke to the judges of the High Court of Kenya, pointing out that, before studying law, I was a soldier and proposed to analyse the Kenyan Judiciary as if it were a military unit. The Judiciary was well-trained, well-equipped, well-led, possessed of high morale and, thus, invincible. The Constitution of Kenya, 2010 is an outstanding piece of work. The leadership of Chief Justice Mutunga is a major asset. The palpable admiration, respect and, even, affection which the judges felt for the Chef Justice touched and inspired me. Kenya is involved in a struggle for the country’s future. The adversaries are the new Kenya, the constitutional democracy, and the old Kenya, of corruption, oppression and rule by ethnic barons. I suggested that the judges should see themselves as warriors for the new Kenya. Kenya has two official languages: English and Swahili. Speaking both was important in my work. During the formal presentations, I spoke in English and was able to rely on Swahili to interact with people on the social occasions.
We began with the attack on the Westgate complex, the right place to end. Little love is lost between Kenyans and Somalis. Colonialism divided the Somali nation into three entities: British, French and Italian Somaliland. The Republic of Somalia, a fusion of British and Italian Somaliland located on Kenya’s northeastern border, gained independence in 1960, while the French part later became the Republic of Djibouti. Somalia began to come apart in the 1980s, fracturing into a collection of hostile enclaves ruled by warlords. The capital, Mogadishu, was pillaged and ruined. Most Somalis are Muslims. The infusion of militant jihadism into a devastated country created the conditions for disaster. By the 1990s, the economy of Somalia, if it had one, seemed based largely on banditry and piracy. Some of this affected Kenya. Buildings were bombed and tourists and other foreigners kidnapped for ransom. Al Shabaab(“the youth” or “the boys”), a gang of Somali jihadis, claimed responsibility for the Westgate outrage. Kenya sent troops as part of an African Union mission to restore some order and stability in Somalia. Many Somalis live in Kenya. Crime is a spectre haunting Nairobi. Security guards are ubiquitous and the Kenya Police carry automatic weapons. It is widely believed that crime in Nairobi is largely the work of Somalis. The major concentration of Somalis is in Eastleigh, a specially dangerous and crime-ridden area of Nairobi, which many foreign embassies have advised their nationals not to visit. President Uhuru Kenyatta’s response to the Westgate outrage was calm, determined and vigourous and demonstrated confidence that this barbarous behaviour would not derail Kenya. There may be as many as half a million Somali refugees living in Kenya, the bulk of them in an enormous refugee camp called Dadaab, located in the north of the country. There have recently been calls for the expulsion of all Somali refugees. The barbarity and depravity of the Westgate attack were evident when, after the Kenyan security forces had cleared the complex, searchers discovered the bodies of children tortured to death. The Westgate attack manifested the definitive characteristic of jihadis, who are, as I see them, equal opportunity murderers, just as happy killing Christians or Hindus or Jews, or blacks or whites, or the young or the old. 2014 has not seen a diminution in outrages perpetrated by al Shabaab. In June of 2014 al Shabaab gangsters have murdered dozens of Kenyans watching World Cup football games on television. These murders were committed in places along Kenya’s Indian Ocean coast, which is the area of Kenya that has the largest concentration of Muslims.
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