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Kenya: the struggle for a new constitutional order

Zed Books Ltd

The protracted transition to the Second Republic in Kenya

Paul Tiyambe Zeleza

In 2007 and 2010, two crucial events took place with profound implications for Kenyan history and society. The first event was the tragedy that followed the disputed general elections of 27 December 2007. The violence that convulsed the country left 1,100 people dead and 600,000 displaced, and threatened the very survival of Kenya.

The second event marked a rare moment of triumph. Kenyans, chastened by the ghosts of 2007 and anxious for new beginnings, voted for change. The voter turnout was high for a traumatised demos that seemed to understand that the referendum offered a historic opportunity for the country to remake itself in the wake of its battered past. If 2007 marked the nadir of the 'First Republic', 2010 represented the possible birth of a 'Second Republic' based on inclusive citizenship, good governance, devolution of power and more equitable development.

The first moment gave rise to profound despair about Kenya's future, while the second has been greeted with exaggerated hopes. Having stared into the abyss in December 2007 and January 2008, the country pulled back, and the political class made tepid compromises to save their nation through the formation of a coalition government, which delivered a new constitution in August 2010. Clearly, the crisis begat the constitution; in short, the possibilities of democracy and development promised by the new constitutional dispensation were incubated in the violent maelstrom two and a half years earlier, a development few could have predicted.

From the moment the implosion started, there was a continuous stream of commentaries and analyses all over the old and new media in Kenya itself, among the Kenyan diaspora, and from the country's friends and foes around the world. The Kenyan observers and intelligentsia were bitterly divided as the crisis unleashed intolerant ideological, political and ethnic chauvinisms. Some were quite apocalyptic about Kenya's future. Introducing a special issue of the Journal of Contemporary African Studies, Peter Kagwanja and Roger Southall wrote: 'The post-election crisis of January 2008 brought Kenya close to collapse and the status of a failed state.' They located 'the origin of the crisis in, variously, a background of population growth and extensive poverty; and ethnic disputes relating to land going back to colonial times (notably between Kalenjin and Kikuyu in the Rift Valley). More immediately, what stoked the conflict is the construction of political coalitions around Kenya's 42 ethnic groups.' And they were not too hopeful about the future, suggesting that 'a reluctance by the Grand Coalition partners to undertake fundamental reform of the constitution means that Kenya remains a "democracy at risk", and faces a real possibility of slipping into state failure' (Kagwanjaand Southall 2009: 259). Several articles in this issue and another special issue of the Journal of Eastern African Studies variously attributed the crisis to elite fragmentation and the existence of non-programmatic clientelist parties, political liberalisation and institutional fragility, the informalisation and criminalisation of the state, and the decentralisation and privatisation of violence (Branch andCheeseman 2009; Lafargue 2009; Mueller 2008).

Often thick with political details, many of the existing analyses tend to be thin on the economic dynamics of the crisis, even those that purport to advance a political economy perspective. Also, their nods to the historical context – that this crisis is rooted in Kenya's complex past – tend to be perfunctory in so far as their primary focus centres on the contemporary dynamics of the crisis. In this chapter, I seek to provide a much longer-term mapping of the historical trajectory of Kenya's political economy, which culminated in both the tragic and the triumphant events of 2007 and 2010 respectively. My argument is that both events are rooted in, and reflect, Kenya's contradictory colonial and postcolonial histories; they mirror the intertwined challenges of development and democracy; and they represent simultaneously the failures of, the struggles for, and the possibilities of constructing a developmental democratic state from the debilitating burdens of colonial underdevelopment and despotism and postcolonial developmentalism and dictatorship. The contrasting, yet connected, developments between 2007 and 2009 underscore the challenges of historical analysis and prediction.

I begin with a brief outline of the legacies of British colonialism in Kenya, the structural underpinnings and ideological parameters of which were inherited by the postcolonial state. Then I examine, again sketchily, the modes of governance and development during what I would call the period of authoritarian developmentalism between independence and 1980, which was followed by the era of neoliberal authoritarianism that lasted until 2002. Finally, I focus on the changes and contradictions ushered in by democratisation, out of which erupted both the failed elections of 2007 and the successful referendum of 2010. Throughout, I try to put Kenya in the context of wider trends in African and global histories for the obvious reason that the country is an integral part of both, and its constitutional story is part of this long and still unfolding historical process.

The political economy of colonialism and its legacies

Colonialism was, fundamentally, an economic enterprise that required political execution and ideological justification. Thus, any meaningful analysis of colonialism and its legacies in Kenya or elsewhere has to examine the nature and dynamics of colonial capitalism, the colonial state and colonial ideology. The construction of these elements entailed the coercive imposition, countervailing resistance and subsequent articulation of European and African systems and structures. The colonisation of Africa was broadly driven by the needs of the industrial capitalist countries to find markets for manufactured goods, outlets for investment and sources of raw materials. It was conditioned in different African regions by more specific dynamics, what I have called elsewhere the imperatives of finance capital in North Africa, merchant capital in West Africa, mining capital in Southern Africa, and speculative capital in Central and Eastern Africa (Zeleza 1993). Typically, colonial economies were extraverted (export-oriented), monocultural (reliant on a narrow range of commodities), disarticulated (their sectors were disconnected and suffered from uneven productivity) and dependent (dominated from outside in terms of markets, technology and capital). They were not designed for the sustainable development of colonial societies. Of course, this does not mean that they did not transform the economic systems of these societies: new modes of production and social relations were established that were to have a profound effect on subsequent African history.

The colonial state was the midwife of colonial capitalism. It was a conquest state, established through physical violence and maintained through political violence. Created as an appendage of the imperial state, the colonial state was peculiar in that it enjoyed only some of the crucial attributes of the modern state and could not exercise many of its imperatives. As a conquest state, its hegemony was excessively coercive, so it enjoyed little legitimacy. Also, its territoriality was ambiguous, its sovereignty disputed, its institutions of rule, legal order and ideological representation were all extraverted and embedded in metropolitan practices and traditions, and its revenue base was weak. Charged with the onerous tasks of creating or promoting colonial capitalism, linking the colony to the metropolis and consolidating colonial rule, it is not surprising that the colonial state was both very interventionist and fragile, authoritarian and weak, and it exercised domination without hegemony, all of which ensured its eventual downfall much sooner than the colonisers had anticipated (Young 1994).

Unsurprisingly, to its architects, colonialism was justified in the noble names of civilisation and pacification, and later, when such patently racist discourses were discarded in the barbarities of the Nazi holocaust and the Second World War, it was recast in the seductive terms of development and modernisation. Colonial rule gave rise to the racialisation and ethnicisation of colonial society, and to divisions between the colonisers and colonised and among the colonised. The colonised were denied the rights of citizenship because of race and were subjected to traditions of so-called 'tribal' custom often invented by colonialism itself. Thus, colonial despotism sought to create ethnic identities or to give fluid social and spatial identities ethnographic purity that did not exist previously as instruments of divide and rule. As Mahmood Mamdani (1996) noted, the colonial state ordained and enforced so-called customary traditions, which had the least historical depth and were monarchical, authoritarian and patriarchal.

Colonial economies, states and ideologies were, of course, diverse because of the differences between the European imperial powers and the African societies they colonised. The dynamics of colonialism were determined by each region's precolonial economic, political, social, cultural, religious and gender systems, the length and extent of its contact with Europe, the dynamics of resistance against colonisation, and the presence or absence of European settlers. This has led several scholars to place African colonies into different categories. First, there is the tripartite division of Africa developed by Samir Amin: the Africa of the labour reserves where Africans were primarily expected to provide labour for European colonial enterprises; the Africa of trade where Africa produced the bulk of the commodities traded by colonial companies; and the Africa of concession companies where chartered companies enjoyed economic and administrative control over African labour and produce (Amin 1972). Second, there is Thandika Mkandawire's typology distinguishing between rentier and merchant economies, in which surpluses were extracted from rents from mining and taxes from agriculture (Mkandawire 1995). Third, there is the distinction often drawn between settler and peasant economies, in which production was dominated by either peasants or European settlers. Under these typologies, colonial Kenya could be considered a labour reserve economy, a merchant economy, or a settler economy (Denoon 1983; Elkins 2005b).

Using the latter categorisation explains much about colonialism in Kenya and its legacies. Settler colonialism was characterised by several features: the exclusion of competition because of settler control of key economic resources, including land, the allocation of infrastructure, banking and marketing at the expense of the indigenous people; the predominance of the migrant labour system, which allowed the costs of reproducing labour power to be borne by the rural reserves; generalised repression, whereby direct and brutal force was used regularly; and the close intersection of race and class, in which, as Frantz Fanon stated, 'you're rich because you're white, you're white because you're rich' (Fanon 1967).

In most settler societies, the violence of the conquest state and the bifurcations of colonial society were particularly acute. In such societies, the colonised people faced onerous exclusions from economic and social opportunities including cash crop agriculture, stabilised wage labour, access to education and political representation. Consequently, they were forced to wage protracted liberation wars, and after independence they faced the challenges of how to democratise the state – particularly customary power – de-racialise civil society, promote African accumulation, and restructure unequal external relations of dependency.

Kenya's history as a settler colony is too long and complex to be fully covered in this chapter (seeBerman 1999; Berman and Lonsdale 1992a: 1992b; Ochieng' 1988; Shaw 1995). However, the colonial political economy can be divided into three phases: first, from the 1890s to the First World War, when colonial infrastructures, institutions and ideologies were laid in the face of what historians call primary resistance against colonisation. The period was characterised by the development of settler agrarian capital built on the back of massive land alienation, coercive proletarianisation, varied patterns of peasantisation (despite efforts at marginalising peasant production), the growth of Asian and European merchant capital, the construction of new spaces and structures of colonial socialisation – the segregated colonial towns and schools – the creation of racialised social hierarchies, and the reconstruction of class, gender, ethnic and national identities.

This was followed by the interwar period during which these processes intensified. The colonial order became consolidated at the same time as new challenges against it rose from the landless squatters, impoverished workers and restless indigenous elites that were reinforced by the disasters of the Great Depression and the Second World War, which fatally undermined the promises of colonial capitalism and the supremacy of the colonial powers respectively. From these disruptions emerged a changed colonial capitalism in which the settlers who had expanded their production and power were pitted against the swelling armies of squatters desperate for land, and peasants clamouring for access to lucrative cash crops and marketing opportunities. The expanded and increasingly militant labour force became more differentiated with the introduction of import substitution industrialisation and the growth of trade unionism, and elite protest found political muscle in mass nationalism. Kenya, like much of colonial Africa, had entered the final phase of colonial rule – decolonisation.

African nationalism had a dual face: it was a struggle against European rule and hegemony and a struggle for African autonomy and reconstruction, a drive to recapture Africa's historical agency. It was woven out of many strands. Ignited and refuelled by the specific grievances of different classes, genders and generations against colonial oppression and exploitation, it also drew ideological inspiration from diverse sources – local and transnational, traditional and contemporary. If the nationalist movement constituted the primary institutional vehicle for nationalist expression and struggle, decolonisation was the immediate objective. It cannot be overemphasised that the nature and dynamics of African nationalism were exceedingly complex. To begin with, the spatial and social locus of the 'nation' imagined by the nationalists was fluid. It could entail the expansive visions of pan-African liberation and integration, territorial nation-building, or the invocation of ethnic identities. Secular and religious visions also competed for ascendancy (Zeleza 2008).

Articulated and fought on many fronts, nationalism varied from colony to colony, even in colonies under the same imperial power. Nationalist movements encompassed political parties and civic organisations, trade unions, peasant movements, women's movements, religious and cultural movements, and youth movements, each of which waged its struggles using methods, tactics and spaces that were both separate and interconnected. It was the very plurality of nationalist movements that often sowed the seeds of postcolonial discord, as independence removed the lid of unity for the disparate elements struggling for uhuru.

In Kenya, the nationalist struggle was dominated by the liberation war, popularly known as Mau Mau, waged from 1952 to the end of the decade by the Land and Freedom Army, although the military phase had peaked by 1955. The war was triggered by colonial state intransigence and refusal to address demands for reform. After failing to stem the rising flames of nationalist rage, as manifested in the Mombasa and Nairobi general strikes of 1947 and 1950, and the growing signs of rural revolt, the colonial state declared a state of emergency in October 1952. Concentrated in central Kenya, where the oppressive and exploitative effects of settler colonialism were most evident, the Mau Mau struggle found support among radical urban trade unionists and attracted the active participation of many women and youths, although it was dominated by dispossessed squatters and poor peasants (Anderson 2005; Atieno-Odhiambo 2003; Branch 2009).

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Excerpted from Kenya: the struggle for a new constitutional order by Godwin R. Murunga, Duncan Okello, Anders Sjögren. Copyright © 2014 Godwin R. Murunga, Duncan Okello and Anders Sjögren. Excerpted by permission of Zed Books Ltd.
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