Who is a Refugee?

This concept is fraught with a lot of misunderstanding especially in Kenya. Many Kenyans believe that a refugee is one exclusively running away from conflict. Consequently those not coming from countries that are perceived to be at war do not fall under this category of persons. It will be surprising that those who hold such a view would not agree that asylum seekers from Ethiopia or Eritrea should be considered as refugees. However this is an inaccurate view of the subject.

The term refugee in international law has a definite meaning. The meaning is governed by several legal instruments.  The first is the Geneva Convention of 1951 as read with the 1967 Protocol. These define a refugee as any person who owing to a well founded fear of persecution on the basis of race, religion, political opinion, nationality or membership to a particular social group is outside the country of his nationality or habitual residence and is unwilling or unable to present himself of the protection of that country. That is basically a paraphrased definition.

Owing to the wars/struggles of liberation that ravaged the continent (Africa), there was need to include in the definition those people running away from conflict. The Organization of African Unity (as it then was) came up with an additional criteria for defining a refugee. Thus they came up with a uniquely African document that borrowed the definition of the Geneva Conventions and added people fleeing from events that cause public disorder in either the whole or part of the country and those fleeing external aggression, occupation and foreign domination.

Flowing from this move by the OAU, there is the question on whether people fleeing natural calamities are included in this definition. While the mainstream humanitarian actors are of the opinion, I think different. The OAU refugee convention allows refugees fleeing from events seriously disturbing public order in any part or the whole of the country they are fleeing from. Therefore if a tsunami or hunger ravages a country and is deemed to seriously disturb public order, people fleeing from such countries should be considered as refugees.

Closer home, Kenya has a Refugees Act which was enacted in 2006. The definition therein is the same as the one provided under the OAU convention. It basically has a domestication effect as well as provide the day-to-day management of refugees. Owing to the promulgation of the Consitution of Kenya, 2010 acts of Parliament have to undergo reviews. The Refugees Act is no exception. I do not see the definition changing and in any case Kenya as a signatory to the Geneva Conventions and the OAU convention which according to article 2(6) of our constitution form part of our laws.

Defining the term refugee is important to the realization of the right to seek asylum. Under the human rights rubric, it is a human right to seek and receive asylum. Thus defining the term refugees aids in identifying such persons that may need assistance in seeking asylum. It should be noted that this status is not permanent. This subject will be looked into in subsequent posts.


Politics in Kenya Series: Are Kenyans Inherently Ethnic?: Politics of Marginalization and Redistribution

I have always agonized over a question that I think may hold the key to end ethnic animosity in Kenyan politics. Are Kenyans inherently ethnic? There are those who believe that the answer is an obvious yes but I am not yet convinced that this is the case. This post argues that there is a connection between resource allocation and the animosity between and among Kenyan tribes that has punctuated our voting patterns since independence.

The story inevitably begins before the creation of Kenya (I say creation because before 1920 there was no entity called Kenya). In or around 1918, the British saw it fit to implement the divide and rule policy that saw the creation of the idea of ethnicity. This in itself was not the root cause of animosity as I imagine that those who inhabited that territory must have noticed that they are different from each other. The problem began with the creation of the state and the subsequent loss of the indigenous populations’ autonomy.

In those days each group had its own center of power; political autonomy/sovereignty if you may. Thus each group had, from my readings, their own system of devolving resources for the good of the community.  However these systems were irrevocably destroyed with the creation of the Kenyan state. The consequence of this was the creation of not a nation state but a state of nations.

Marginalization was the ramification of the divide and rule governance adopted by the colonialist. Those that advanced the interests of the colonial government were rewarded while those who opposed it were disenfranchised. This created disparities among the erstwhile independent/autonomous ethnic groups living in Kenya – who in addition of being forced to be part of a state, had to contend with other groups for political power. There is confirmation of this in Prof. Colin Leys book Underdevelopment in Kenya to the effect that the Kikuyu’s were the most integrated tribe in the colonial economic system.

At independence the scene did not change. Whereas there was a section of the political elite that expected redistribution to be a serious Government agenda, there are those who viewed this as a threat to the status quo in which they stand to lose if things changed. From the Kenyatta to the Kibaki regime, ethnicization of the presidency and entrenchment of patrimonialism and clientalism systems of governance in Kenya became common place.

As those ethnic groups close to the center of power aggrandized their power through pork barrel political machinations, those in the fringes were kept out of development as evidenced by the unequal development in different areas of the country. This invariably contributed to a growing sense of disenfranchisement and anger between the haves and have nots. The presidency was seen as a way for improving the lot of one’s ethnic group.

Sensing this, politicians stoked the flames of perceptual hatred to win public support and guarantee  their political supremacy. Many a politician are on record claiming that other tribes must go back to their ‘homes’ a vague reference to their areas of origin. This exacerbated the hatred between and among tribes in Kenya.

With this in mind, I turn to the point on ‘inherentness’ of ethnicity in Kenya. I like to use a comparison between ethnicity and racism to bring out my point. In contradistinction to ethnicity, racism is based purely on hatred of a race that is different from one’s own. It is actuated by a malicious ideology of intellectual and cultural supremacy of one race over another. Ethnicity in Kenya, on the other hand, is not fueled by the deep seated hatred of other ethnic groups for its own sake, rather it is actuated by years of perceived and actual marginalization wherein one tribe views members of another as the reason for such marginalization.

I therefore believe that Kenyans are not inherently ethnic; that the issue lies at the heart of redistribution politics is my thesis thus far. As Ngugi wa Thiong’o once stated (after being released from detention in 1979), Kenyans have the right to interrogate how wealth is made in the country, who makes it and how it is distributed. The lack of exercising this right for a long time must have made other ethnic groups resentful and wonder whether this was the reason they fought for freedom so hard (see Oginga Odinga (1968) Not Yet Uhuru and Joe Khamisi (2011) Politics of Betrayal).

Once one understands this, we can place land clashes and the post election violence in perspective. Many of those evicted from their homes because they belong to a different community were seen to represent those greedy few in power bent on personalizing state power. Even though they never held elective posts or other position of power, their ethnic linkage to these gluttonous individuals sealed their fate.

To curb ethnic violence, the issue of redistribution must be carefully considered. I think that in part the county system – if properly implemented – will go a long way to ensure these issues will be resolved. However it may take decades if not a century for these inequalities to be narrowed and eventually done away with, if that is even possible (I am exercising cautious optimism here). However the perception of fairness in redistribution may be the key to end ethnic violence in Kenya once and for all.

Kenya Foreign Policy: Three Presidents and Fifty Years Later

In my view 2013 elections marked the end of the first republic. Since independence all the men who have had the privilege/pain of ruling over Kenyans were alive when the first government was formed. In fact they contributed greatly to the position the country is in at the moment both in domestic and foreign policy. The later is what I am most interested in.

It is a well documented fact that the first Kenyatta Government was west leaning. But that did not hinder some elements in Government, often called radicals, to engage the East nonetheless. That the Government of Kenya entered into trade and military agreements with USSR is an example. Daniel Branch – a professor of history with a deep interest in Kenyan history – chronicles in his book “Kenya: Between Hope and Despair 1963-2011” that Kenya was to receive an arms catchment from USSR before the British and American Governments impressed upon the Kenyan Government of the ramifications of doing so. The arms were ordered to go back to their country of origin.

In my view Kenyatta’s disenchantment with USSR came about from the events in the region. I draw inspiration from Hilary Ngweno’s “The Making of a Nation.” First there were the revolutions and counter revolutions in DRC which Kenya actively participated in the search for peace – Joseph Murumbi was the Minister for Foreign Affairs then. Secondly their was the mutiny on the Island of Zanzibar led by the army officer John Okello. Thirdly their was the uneasy relationship between Kenyatta and Obote where the former always thought that the latter wanted to supplant his Government in favour of a socialist leaning one led by Odinga; you may recall that there were arms that were found at the border near Odinga’s home area.

All these factors may have weighed heavily on the old man. His task was the establishment of a Government that followed the thesis of hard work for development. But here was another ideology calling for redistribution of resources which sounded – at least to him and his inner circle – like a scheme to benefit the indolent. Moreover this ideology threatened to take power by whatever means necessary. I assume that Kenyatta concluded that fraternizing with USSR would be detrimental to his rule; I do not preclude the hand of the British or American in forming this perception. Therefore it was politically expedient for him to align Kenya’s fortunes with the west while giving lip service to non-alignment to save face within the OAU an in the Non Alignment Movement (NAM).

Exit Kenyatta, in comes Moi. In the first few months he makes populist decisions. He releases political prisoners from detention, the famous Ngugi wa Thiong’o among them. Then comes the 1982 coup which should be read from the fact that Kenya was made a de jure one party state through the machinations of one Mwai Kibaki the VP (as he then was). The Government became repressive and thus Moi kept his promise of “fuata nyayo” (following the footsteps of his predecessor). Detentions without trials, arbitrary arrests, brutal crackdown of political dissidents among other tactics were employed to silence critics. Corruption became an issue as well, though it was also an issue even before Moi’s administration.

The cold war international system collapsed and the sole super power re-oriented its foreign policy. Whereas it believed that the biggest evil in the world was communism and made a point of containing it, with the ‘monster’ vanquished the order of priority changed. Moi’s excesses became to obvious to ignore. Erstwhile the Moi Government hid under the cloud of containment, now the space for maneuver had vanished.

There are some scholars – and to some extent I agree with them – who think that Moi went on a cleansing spree. Kenya’s foreign policy was pushed full throttle in defense of the morally bankrupt regime. This was done directly and indirectly. It was directly done through an aggressive diplomatic tactic of sending ministers, especially those in charge of foreign affairs, to sing the praises of the regime. The other, indirectly, was through the diplomatic engagement in Sudan and Somalia as peace makers in an attempt to deflect attention from the state of the nation.

History instructs that this effort failed. Moi was put under pressure to restore reforms and end his ‘dictatorial’ rule. With the constitution amended and the restriction of political parties lifted, there was an explosion of political activity on the scene. For two terms the opposition could not oust Moi but managed to block his protege Uhuru Kenyatta, now president, from getting into office.

I think this is where Kenya’s foreign policy got proper direction; rather than be used to protect the regime and curry favour with the west for aid, it was applied to a specific goal: national development through trade. The so-called economic diplomacy was hatched in Mwai Kibaki’s Administration. His was a plan to use foreign policy to meet Kenya’s industrialization needs. All the goals in Kenya’s foreign policy boiled/still boil down to how much money Kenya would make and how much growth it would register.

Could Kibaki’s background as an economist have something to do with it? I think this would be an interesting M.A. thesis; to what extent does the idiosyncrasies of Kenyan leaders account to the formulation and implementation of Kenya’s foreign policy? I would make an intelligent guess and say to a large extent. Kibaki saw things through the cost-benefit rubric and saw in China a perfect break from the past in terms of west (over)reliance.

Curiously, he seemed to have made a complete round-about. In 1965 he and Tom Mboya authored a document called “African Socialism and its Application to Kenya” which was Sessional Paper no.10. This document has been a linchpin in Kenya’s foreign relations. It was perceived as the total rejection of the concept of socialism and worse still communism in Kenya. But Kibaki, almost 40 years later, engages the communist Chinese; I find this fascinating to say/write the least.

Now there is the Kenyatta II Government. I cannot speak to the future as a social scientist can only investigate what has already happen as engaging in speculation is fraught with its own intricacies. However I do note the fact that the not so new Government is keeping in step with the Kibaki’s Administration’s view on foreign relations: that trade is the main tool through which Kenya will deal with the world. Interesting times ahead I should think.