|
|
[Home] [Help] [Databases] [CommonLII] [Feedback] |
|
Constitution of Kenya Review Commission |
By Lt Col (rtd) JAN Kamenju Director, Security Research and Information Centre (SRIC)
30-09-2001
A presentation made to the Constitution of Kenya Review Commission Workshop on the Interpretation of its Mandate held at the Mombasa Beach Hotel 9-15 September, 2001
Introduction
The concept of sovereignty is founded in the fundamentals of borders which in turn determine what is internal and what is external. The present borders of African countries are a result of the Berlin Conference of 1884-
85 which was meant to settle European disputes arising from their imperial interests. This demarcation of borders was thus done purely for European interests and the domination of African peoples. While they may appear solid and rigid on the map, African borders are indeed very porous, unmarked on the ground and are a major cause of conflicts.
In partitioning Africa, the Europeans ignored ethnic and cultural dispensation, which, over two hundred years earlier, were major considerations in the partitioning of Europe. African governance, socio economy and the modes of societal organisation were also ignored and eventually scrapped to make way for European dominance.
Borders demarcate the physical limitations of a state and are fundamental considerations in shaping of the state as an entity and formulating foreign and defence policies and diplomatic relations. Borders are sensitive issues and inevitably cause conflicts in the international relations of Africa.
Internal borders of Kenya were founded on similar basis as those of territorial/international borders. They create resource conflicts, which, if not properly diagnosed and attended to may, and do cause violent confrontations.
It is against this background that I will discuss internal and external security and national borders.
Security as a concept
There is no generally accepted description of what security means and how it should be defined. Security is a broad complex and vague concept. Questions always arise as to the definition of security; security for whom, what needs to be secured, what is enough security et cetra... Security is essentially about the protection of basic and innermost values of actors. These values differ from person to person, community to community, state to state and so on. Therefore, the concept of security is dependent on who defines security and in what context.
A logical concept of collectivities such as nation states has been made by Barry Buzan who conceptualizes that there are five major factors that affect national security:
military, political, economic, societal and environmental.
* Military security concerns the two-level interplay of the armed offensive and defensive capabilities of states and states' perceptions of each other's intentions.
* Political security involves the organizational stability of states, systems of government and the ideologies that give the legitimacy.
* Economic security concerns access to resources, finance and markets necessary to sustain acceptable levels of welfare and state power.
* Societal security encompasses the sustainability of social systems, within acceptable conditions for evolution, of traditional patterns of language, culture and religious and national identity and custom.
* Environmental security concerns the maintenance of the ecosystem and planetary biosphere as the essential support system on which all other human enterprises depend.
It is well understood that these five sectors do not operate in isolation from each other. Each defines a focal point and a way of ordering priorities, but all are woven together in a strong web of linkages.
For our discussion, the most relevant definition of security which ties up all the five factors is that provided by Thomas Ohison in his article "Conflict and Conflict Resolution in South African Context in which he argues that "a definition of security, then, ought to capture two central dimensions, both equally important for in individuals and collectives. These are freedom from danger, meaning protection from physical, or direct violence, and freedom from fear, meaning a sense of safety and relative well-being in political, legal socio-economic and cultural terms; i.e. a measure of protection from structural violence.
Internal Security
The Kenyan Internal Security is as enunciated in Section 2 of the Preservation of Public Security Act (CAP 57). The Preservation of Public Security of persons and property, prevention and suppression of rebellion, mutiny, violence, intimidation, disorder, crime, attempts of overthrow the government, maintenance of the administration of justice, provision of sufficient supplies and services and provision of administration and remedial measures during periods of national danger and calamity. The laws as stated here is quite clear.
What then are the dangers and fears we face in our nation today? They are many dangers and fears facing both the individual and collectives of the state. I intend to touch on a few that I think are serious and which, unless well managed will be sources of future conflicts and are security threats.
* Small Arms and Light Weapons: The presence and proliferation of small arms and light weapons in society especially amongst ordinary and unscrupulous offenders, criminals, terrorists and quasi-militia pose dangerous threat to public safety, human security, conflicts and development. They are a hindrance to peacemaking, negotiations and reconciliation. The presence of small arms in African societies tempts one to choose the militant option which guarantees short term gains as opposed to the tedious and time consuming process of negotiation. The presence and the proliferation of small arms in Kenyan society is a cause for concern as it contravenes Article 3 of the Universal Declaration of Human Rights which (should) guarantee a person's right to life, liberty and security. The Kenyan scene depicts gross abuse of these rights, underdevelopment and reduction of economic activity due to fear; especially at night. The reduction, control and management of small arms and light weapons must be a top priority for this country as they (arms) are a major threat to both internal and external security.
* Declining Economy: Poverty, unemployment, poor infrastructure, corruption, unchecked mushrooming of slums in urban areas, rising juvenile delinquency brought about by increasing population of street children are some of the serious threats facing our nation today. The increasing number of school dropouts due to lack of school fees and/or insecurity portends badly for the future. The ever increasing cases of HIV/AIDS pandemic and the resurgence of incurable/infectious diseases such as malaria and meningitis are indicators of decimated population, the loss of trained manpower and an increase of orphans and destitute persons which will put more pressure on available resources making the economy to decline further.
* Ethnicity and politics: The Kenyan political landscape is made up of ethnically based political parties. Ethnicity is deep rooted in the political leadership. I risk to add that ethnicity is not as widespread in the greater society as we are made to believe. From my experience, ordinary Kenyans do not care who leads them as long as whoever does guarantees them security and leaves them alone to and go about their business. At personal level, Kenyans do not succumb to ethnicity but our political leaders use ethnicity to rise to and to maintain their leadership.
* Resources and Corruption: Public resources which come from taxation, licencing and other government revenue generating activities. These resources should be used strictly for the well-being of all citizens. Corruption, misuse and biased expenditure must be removed and perpetrators prosecuted. The culture of "our-time-to-eat" in the political leadership must end. Another aspect of resource use regards pastoral communities. Drought or general lack of rain means less pasture and water for pastoralists that lead into invasion of pasture across community borders. This creates violent conflicts which are now more lethal than before due to the presence of firearms. Again, some of those firearms are government property.
* Cattle rustling and banditry: Cattle rustling is closely associated with cultural practices and habits. However, cattle-rustling has taken a commercial direction where thousands of cattle are stolen and trucked to slaughter houses. Cattle rustling should be criminalized. Banditry, on the other hand is outright lawlessness and should be treated thus. Cattle rustling and banditry are know to settle political scores amongst pastoralist communities.
* Enviromental degration: The Sahara desert is said to be encroaching into the equatorial Africa. Kenyans are encouraging this through the decimination of forests and allowing massive soil erosion. Our dams are going dry and power rationing will recur at all times of drought. Garbage disposal, especially plastics are a hallmark of many towns and villages. Water pollution is becoming uncontrollable.
* Insecurity and Regional Instability: Insecurity in urban areas have affected the freedom of movement, changed trading patterns as many businesses have to close at sunset and is a cause of further economic decline. Regional instability due to lack government in Somalia, war in Sudan, insurgency in Ethiopia and Uganda and the problems of the Great Lakes Region is exacerbating cross-border crime and banditry, the influx of refugees and the proliferation of arms and drugs.
* Natural and man-made disasters: Drought, famine, terrorist activities and other unpredictable calamities are bound to occur from time to time. Are we prepared for these?
External Security
External security or security against external aggression is both a civil and military affair. It is military in execution but civil in design. Defense policy is derived from the foreign policy. Military action is the extreme end of failed diplomacy.
The foreign policy of a state is a combination of principles and norms, which guide or determine relations between that state with other states or bodies in the international system. Formulation of foreign policy depends on national interests, actual and potential capabilities and the realities of internal and external environmental.
On the other hand, defence policy and posture are dependent on threat assessment, real and perceived threat. The military is an insurance for sovereignty based on national grand strategy. National grand strategy can be equated to the African stool which stands on three equal legs. The three legs are politics, economy and military. The stool then, exists within an environment and composition of society. Some schools of thought argue, that the military is not necessary. I argue that it is essential.
The role of the military is basically defence against external aggression. Secondary roles include assistance to civil power in the maintenance of law and order and the show of national pride.
The military, in their support to civil authorities must have clear instructions on the exact activities they are expected to perform. Military role does not mix with law enforcement roles. What the military does is to facilitate agencies to perform their duties. For example, in extreme civil disorder the military can be used to enforce curfews, enhance the security of important state assets e.g. airports, state houses, etc. The military can also assist law enforcement agencies in condoning areas for search and arrest but they have no competence or the power to search and arrest.
The military is a national flag carrier and a pride of a nation. The tradition of guards of honour, parades, flypasts and shows of power are a display of authority and a show of who is in control.
For the purpose of this meeting, let me say that the Kenyan Armed Forces are not created by the Constitution which is, to me an anomaly. The Kenyan military are founded on an Act of Parliament Cap 199 of the Laws of Kenya.
Another issue that arises is whether the military should be involved in politics. Some countries e.g. Indonesia, Uganda and Rwanda have military constituencies that elect representative into their national assemblies. Whether this is feasible in Kenya depends on you as commissioner. The pros and cons can be researched further.
National Borders:
The concept for Border Security can be termed as Border Safeguarding and consists of two elements; Border protection and Border Control.
* Border Protection is primarily concerned with the Protection of National borders against all hostile action, including terrorist attacks, including ex filtration, border violation and conventional attack or threat or any related operational aspects resulting from such hostile action.
* Border Control is primarily concerned with those aspects which deals with the general application of legal and regulatory measures that apply to the efficient control of people and goods across national borders. Border control has got distinct functions: Borderline Control and Border Post Control.
In a pre-study to mapping of firearms related crime in Tanzania, Uganda and Kenya by (Security Research and Information Centre (SRIC), SaferAfhca and Saferworld significant preliminary findings have been found. These may help in formulating policy and activities for safeguarding borders. These findings are:
* Cross border crimes in a non organised manner are a daily occurrence and organised crimes involving the smuggling of vehicles, drugs and firearms are happening on a very organised level, a level sometimes above those of the law enforcement agencies.
* Border posts across the region are under staffed, not only in the police service but also by the other departments directly involved.
* There is a lack of the basic tools to do proper border policing functions such as fax machines, constant electricity, proper living quarters for police/customs/immigration officers, the lack of vehicles and proper search and storage facilities.
* There is a lack of communication between agencies working in the same field that results in the loss of valuable information on crime, crime syndicates and border security related issues.
* There is a lack of trust between agencies involved in border control at ground level which results in cross accusations of corruption.
* Corruption is a fact that needs to be dealt with immediately.
* There is a substantial interest in improving border controls in East Africa from a
* national perspective as well as from a regional perspective.
* Existing structures are in place for some time now on how all the governmental agencies involved in border control are working together to improve the situation on borders in the region. This collective approach is a few years old but still experiences problems on all levels of deployment.
* Most East African Countries are loosing income not collected through import and
* export taxes.
* Police officers on new detached duties believe they still can make a difference in
* conditions at border posts, improve service delivery and fight cross border crime.
In conclusion Mr. Chairman, Sir, I would like to raise five issues that require some strong thought by this Commission.
Use of traditional structures for governance.
Our experience in dealing with communities in Isiolo District, the Peace and Conflict Resolution Committee shows that traditional structures work much better than the administrative setups. The Isiolo Committee has the trust of the community and receives current information on the social dynamics of the communities, including crime reports, on daily basis.Through this committee, the recovery pf illegal firearms and return of stolen animals has increased many folds. But this process, as successful as it may be creates conflicts between the committee Chairmen at the location level and the chiefs on one hand and between the police and the committee due to the committee's access to information. The Commission will need to look into the use of traditional structures where they exist, other than the continued use of chiefs as in the present set up. Where such traditional structures do not exist, the possibilities of elective offices should be explored.
Youth groups.
Youth groups, party youth wingers and the emerging support groups generally referred to "jeshi la mzee" "jeshi la ...." etc have been known to mete violence to opposing groups. These forces are a recipe for trouble. They are not disciplined, they are not trained on the use of force and they may not have a clear chain of command. When violence escalates these are sort of people who can, with or without their knowledge cause loss of life and property beyond imagination. It is a recipe for extreme atrocities that may lead to genocide and must be addressed.
Civil-military relations:
Civil military relations refer to the distribution of power and influence between the armed forces and the civilian authorities. The current constitution. Part I Section 4 states "There shall be a President of Kenya who shall be the Head of State and Commander-in-Chief of the armed forces of the Republic." There is no mention of the type and mode of power, authority vested in the Commander-in-Chief or the devolution of such power and authority. To avoid grey areas in the exercise of military power and to ensure efficiency, the constitution must have a clear hierarchy of authority in defence matters and must guide the interrelationship between the Commander-in-Chief, the uniformed command structures, parliament and other state actors.
Role of civil society:
Civil society is increasingly becoming a major player in search for peace and prosperity at all levels; international, regional, national and local non governmental organizations (NGOs) have large networks world over with vast amounts of data, information and expertise which can assist/enhance governments' efforts for social development. Civil society has great potential to mediate between the government on one hand and the private sector and individuals on the other. Civil society has the voluntary role to unite the virtues of liberalized private sector with those of bureaucratic public sector for the general good. Civil society is a vital component of the Kenyan constitutional order and must be addressed.
Borders.
Our porous and undefined international borders are a future threat to the security of this country. Sovereignty, being partly a product of clear and marked borders, can only be guaranteed when and where the borders are clearly marked and agreed on between neighbouring states. The Ilemi Triangle, for example, which forms Kenya's northwestern border with Sudan, has three different borderlines depending on which map you look at. This is a potential border-based external threat. Internal borders, eg Masai Mara (read Masai/Kisii), IsioIo/Garissa (read Boran/Somali), etc are recipes for internal insecurity and should be addressed.
Finally, Mr Chairman, I have raised a number of concerns on both internal and external security issues and issues to do with borders. This is not exhaustive but I hope they have given the Commission some useful information that may help to trigger more ideas on these issues. My organization. Security Research and Information Centre (SRIC), remains at your disposal for consultation, research or any other role that the Commission may want to be done.