Why reforms have failed in Kenya

Any good student of Kenyan history knows our state has been an unforgiving graveyard of reformist politics. It is a script that stretches back to the heroic Mau Mau, who were militarily vanquished by British imperialists and politically buried by Mzee Jomo Kenyatta, the country's founding neo-colonial ruler.

Kenya reached its nadir during the long reign of President Daniel arap Moi as a conservative and voracious elite suffocated all political space and looted resources with impunity.

Under President Mwai Kibaki, the state drifted to lawlessness, open corruption, and a virtual civil war. What happened to Kenya, once touted as the beacon of hope in Africa?

It is an incontestable truth that the Kenyan state has been an abysmal, if not catastrophic, failure. Even to the untrained eye, the crises bedevilling the country seem pathological. Brief periods of hope have been doomed by long spells of despair.

Analysts have identified several reasons for this malaise, the important ones being the despotic constitutional dispensation, tribalism and a rotten political class. This is a witch's brew that has arrested Kenya's development.

The ruling political class has been remarkably successful in reproducing itself -- biologically and ideologically -- since independence. The country's constitutional and legal edifice has been constructed to protect the craven political class and prevent reform.

Challenge of nationhood

Wherein lays the problem? I have written before that actual Kenyans do not really exist, even though there is a country by that name. Kenya is vexed by what the late Tom Mboya, regarded by some as a political genius, called the "challenge of nationhood."

At its fundament, Kenya has failed to cohere into a nation. Sadly, it is a country and a state run by tribalists for tribalists. I know it's politically correct to blame tribal nativism on the political class and paint the masses as innocent putty in the hands of manipulative ethnic barons, but I reject such reasoning.

Ordinary folks in Kenya, whom I refuse to call Kenyans, are deeply tribalised, and it is this consciousness that the political class both nurtures and preys on.

The bane of Kenya's existence has been the deliberate refusal by the political class to lead the country in cleansing itself of tribalism. In fact, the survival of the political class explicitly depends on feeding the beast of tribalism.

Very few political and public figures are committed to forging a national consciousness -- a Kenyan zeitgeist -- in which tribal loyalties are transferred to the Kenyan nation. The tribe is their bread and butter.

Tribal lens

Virtually every person in Kenya sees almost every question through a tribal lens. This is a national cancer and the single most important retardant of the country.

It is a condition under which no meaningful reform can be carried out, a view that assumes that Kenya is not larger than the sum of its parts. In fact, the exact opposite is true. Each part is presumed to be larger than the whole!

However, this is an illusionist's mirage that the political elite perpetuates at the expense of "their" ethnic groups and the country at large.

It is against this backdrop that we must understand the history of the failure of reforms in Kenya. A look back over the last 20 years -- an intense period of the agitation for constitutional reform -- shows how, time and gain, the country has come up short.

With one exception, only minimal and erratic reforms have been achieved. (The exception was the repeal of Section 2A, which opened the door to Kanu's eventual demise).

Unbearable domestic and international pressure -- especially from the West -- forced Mr Moi to his knees. But then he spent the rest of the decade fighting to keep the culture of the one-party state alive.

No other key reforms have really succeeded. Even multi-partyism has been a pyrrhic victory. It has begotten ethnic balkanisation under the guise of democracy. We must remember that political parties are the vehicles of democracy.

Their platforms are not mere pieces of paper without connection to reality and policy. In Kenya, political parties are empty receptacles hostage to political barons in search of high office. This has been true since 1991, when open political competition was re-introduced.

Even Narc, the party that finally killed Kanu, turned out to be a collection of tribal leaders under the guise of reform. PNU, ODM, and ODM-K have followed suit.

ODM is populated with notorious Moi-era cast-offs, while PNU embodies banal Central Kenya interests. ODM-K is simply a tribal outfit for Vice President Kalonzo Musyoka.

Every trick in the book

Civil society, the one largely reformist sector, has long believed that reform is not possible without a democratic constitution. Such a constitution would allow the uprooting --branch and root -- of the country's bad laws.

However, the political class understands that a truly democratic constitution would spell its doom. That's why the political elite has found which every way to kill constitutional reform.

In personal and tribal struggles between him and the Raila Odinga-led faction of Narc, Mr Kibaki employed every trick in the book to kill constitutional reform.

The elite has employed the same trick against the people at every turn: Pay lip service to a new constitution; form a body to write a new constitution; spend lots of scarce public resources on the process; then shoot the product down. Even a little child can see through this cynical charade, whose aim is to score political points while snuffing out any chance of reform.

It seems as though we are at that point again. ODM and PNU seem to be like two ships passing in the night. Again, the sticking point is the structure of the Executive. I cannot believe anyone takes these parties seriously on the issue of constitutional reform.

Reformist charades

Let's see what other reformist charades are likely to lay large eggs. The Judiciary, that perennial butt of jokes, is unlikely to see sunshine any time soon unless the robed ones are sent packing in a new constitutional order.

Nor is any change possible without axing Attorney General Amos Wako, the man termed by Professor Philip Alston the "embodiment of the phenomenon of impunity."

He is the AG who does not see corruption, extra-judicial killings, and abuse of power. One would think 18 years is enough even for one of the most corrupt countries in the world.

The same goes for corrupt and killer units within the police, not to mention prisons that are death kennels. Talk of reforms in these sectors is nothing but a bad and cruel joke.

Land reform and conservation are the words on everyone's lips. But talk is cheap, as they say. Just look at the spectacle that has become the Mau Forest. Did those who oppose evictions ever go to school? What is there to debate?

The opponents of evictions are the worst ethnic demagogues in Kenya. Let's be clear -- we will never achieve land reforms if we can't evict the Mau Forest squatters, including Mr Moi and his band of land grabbers.

This leads me to the truth commission, now under the chokehold of Mr Bethuel Kiplagat. The vehicle is essential for reform, but he is the wrong person at the helm. He is part of the political cesspool that has put Kenya in dire straits. How can he be expected to undo his own handiwork?

These foxes keep on standing guard over the henhouses. I fear that the truth commission may be a dead letter.

Forgive me if I sound morose, but I see dark clouds gathering over the horizon. My crystal ball is foreboding. Several things must happen if Kenya is to see reforms.

First, the political class must be excised of the rot. Simply put, a large number of its members must be put to pasture, retired for good from public life.

Second, the hoi polloi must take their country back from the hoitty toitty, who are the enemies of the republic. But the hoi polloi must understand that the wolves would not exist but for the sheep.

The political class will continue to loot, rape, and murder so long as the hoi polloi buys into the ideology of tribalism to protect the ethnic warlords.

Finally, let's return to a policy of deliberate nation building. To do so, we must "kill" the tribe in order to give birth to the nation.

Reform is serious business and it cannot succeed with tribal charlatans in command. Kenya's political class is no better than the pirates menacing the East African coastal waters.

They hold the country hostage. They are parasitic, myopic, and destructive. While other countries grow in leaps and bounds, Kenya remains mired in poverty, hunger, and disease.

We will not reform the country out of this mess unless we build it into a nation. We must kill the tribe. This is our path to the Promised Land.

Makau Mutua is Dean and SUNY Distinguished Professor at the State University of New York at Buffalo Law School and Chair of the Kenya Human Rights Commission