the letter and the spirit

THE LETTER AND THE SPIRIT: POLITICS, INTIMACY, AND MIDDLE CLASS CONSTITUTION-MAKING IN KENYA

A DISSERTATION SUBMITTED TO THE DEPARTMENT OF ANTHROPOLOGY AND THE COMMITTEE ON GRADUATE STUDIES OF STANFORD UNIVERSITY IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF DOCTOR OF PHILOSOPHY

Curtis Njue Murungi December 2013

© 2013 by Curtis Njue Murungi. All Rights Reserved. Re-distributed by Stanford University under license with the author.

This work is licensed under a Creative Commons AttributionNoncommercial 3.0 United States License. http://creativecommons.org/licenses/by-nc/3.0/us/

This dissertation is online at: http://purl.stanford.edu/rp278gz1871

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I certify that I have read this dissertation and that, in my opinion, it is fully adequate in scope and quality as a dissertation for the degree of Doctor of Philosophy. James Ferguson, Co-Adviser

I certify that I have read this dissertation and that, in my opinion, it is fully adequate in scope and quality as a dissertation for the degree of Doctor of Philosophy. Sylvia Yanagisako, Co-Adviser

I certify that I have read this dissertation and that, in my opinion, it is fully adequate in scope and quality as a dissertation for the degree of Doctor of Philosophy. Paulla Ebron

Approved for the Stanford University Committee on Graduate Studies. Patricia J. Gumport, Vice Provost for Graduate Education

This signature page was generated electronically upon submission of this dissertation in electronic format. An original signed hard copy of the signature page is on file in University Archives.

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ABSTRACT     Based on sixteen months of fieldwork in Kenya, this dissertation is an anthropologically and ethnographically informed historical analysis of class as a political process. I place the constitution-making project in historical context in order to provide a background to its claims of being a “middle class” project and to examine what exactly it is a “middle class” constitution-making process produces and on whose behalf. I start by examining how Nairobi’s particular history has led to the creation of a socio-physical landscape that structures the emergence of social class in Kenya. I argue that the interests, ideological beliefs, and socioeconomic and sociopolitical strategies of the reform movement are tied to the ways Nairobi is differentially accessed as a lived and symbolic space, and that the interests of the urban, cosmopolitan, professional middle class from which reform activists are drawn is shaped by the intimacies entered into by its members. I take aim at the “deep state” that is said to be the biggest threat to democracy in Kenya and to the establishment of the reform state. Rather than seeing it as the reactionary holdover of a corrupt and illiberal regime, I suggest that the “deep state” represents the survival of several historical processes through which Kenyan society and the Kenyan state were built. In particular I pay attention to the role that agricultural commodities play in structuring the relationship between government and a domestic elite, and suggest we should view the efforts made to support large-scale settler agriculture in Kenya dominated by aristocrats from England, alongside changes to customary forms of authority occasioned by industrial capitalism in rural England. I then turn my attention to revealing how the process of writing a constitution necessarily reproduces the class distinctions that underlie the social inequalities that the constitution-making project is aimed at undermining. First, I show how the reform movement is better understood not as a mass movement but as a small, closely-aligned group of individuals from a mostly cosmopolitan and professional background, who chose to focus on “human rights” and constitution-making because these reflected their class interests. I suggest that the national civic education process, and the forums organized to collect public’s views about a new constitution, together acted to create and

 

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locate a Kenyan public steeped in the language of human rights and dedicated to the practices of liberal democracy and the abstract ideals of reform. Having located “the people” and collected their views, it was possible for the reform movement to lay a claim to government leadership. Finally, I take a close look at the role imagined for the Judiciary in the reform state and argue that in many ways, the Judiciary ended up being the real object of the reform process. This is because it is the place where reform activists could force the state to show itself, opening it’s authority up to challenge, and because it has since become the stage where the authority and importance of reform, and the status of reform activists, is confirmed, and where challenges to reform ideology can be contained and expunged.

 

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ACKNOWLEDGEMENTS I would like to take this opportunity to thank everyone at the Department of Anthropology at Stanford University for their support and guidance through the completion of this project. I would like to thank my advisor, Sylvia Yanagisako, for agreeing to guide me through this process, for challenging me throughout it, and for doing so with a combination of caring and good humor. James Ferguson and Paulla Ebron, have consistently show an enthusiasm for my ideas, as outlandish as even I sometimes think they are, and, as members of my committee, have helped nurture my thinking and my research. I would also like to thank, Ewa Domanska, who as much as anyone has helped shaped how I think of myself as a researcher, Kathy Coll who has been instrumental in helping me think about teaching, and James Smith, who as a member of my examination committee pushed me to refine my research and to question my own common sense about Kenya. I also owe a sincere debt of gratitude to Liisa Malkki who has been witness to all the various twists and turns my project has taken, and been a valuable source of support throughout. I’d like to thank Sharika Thiranagama, who provided valuable insight and encouragement as she carefully read and commented on various chapter drafts, and James Holmquist who generously agreed to read and comment on a draft of this dissertation. I feel tremendously cared for at the Stanford Department of Anthropology. This starts with Ellen Christensen and Shelly Coughlan, who, with great love, have helped me navigate every challenge I’ve been faced with during my time in the program. Together with Jen Kidwell, Kaila Jimenez, Maria Manzanares, Emily Bishop, Claudia Engel, Rachel Tongco, Anahid Sarkissian, April Flores, and Regina Miller, their support helped me feel at home in the Department (perhaps too at home, I’ve been here a long time) and provided a crucial center around which my experience was built. I am indebted too, to the support of my cohort, Trinidad Rico, Dolly Kikon, Aisha Ghani, and Bruce O’Neil, and to all the other students with whom I have shared this rollercoaster experience. I would like to extend a special thanks to Kylea Liese, Chengdiao Fan, Hantian Zhang, Neepa Acharya, and Vivian Lu who helped me work my way through the writing process. I also want to thank my family and my friends who

 

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have sustained me, offering me love and support without which none of what I have accomplished at Stanford would have been possible. My dissertation research and writing were made possible by the generous support of the Stanford Department of Anthropology, as well as by the School of Humanities and Sciences at Stanford University and the Stanford Center on Philanthropy and Civil Society. Finally, I’d like to thank those to whom I owe the most for the work in this dissertation, those who generously availed themselves for interviews, welcomed me into their homes, their offices, and their lives, and shared their stories and feelings with me. I also want to think all those other friends and colleagues in Kenya who made my stay possible and as comfortable as possible, and helped make my work feasible.

 

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TABLE OF CONTENTS ABSRACT ……………………………………………………………………………... iv ACKNOWLEDGEMENTS …………………………………………………………... vi CONTENTS ………………………………………………………………………….. viii THE LETTER AND THE SPIRIT: AN INTRODUCTION Holding on to the Question ……………………………………………………………… 1 A Liberal Symbolic System ……………………………………………………………... 5 Ghosts ………………………………………………………………………………...... 22 Lifestyles of the Urban and African ……………………………………………………. 27 City Making ……………………………………………………………………………. 33 Plan of this Work ………………………………………………………………………. 42 SECTION ONE: THE LETTER OF THE LAW The Setting ……………………………………………………………………………... 45 CHAPTER ONE: LOCATING THE MIDDLE CLASS Introduction …………………………………………………………………………….. 55 Party Politics …………………………………………………………………………… 56 Making Nairobi, Making Kenya ……………………………………………………….. 62 Nairobi and Middle Class Politics ……………………………………………………... 73 Middle Class Desire ……………………………………………………………………. 80 Navigating Nairobi ……………………………………………………………………... 85 Transportation and Accessibility ………………………………………………………. 88 Neo-liberal Visions …………………………………………………………………….. 96 CHAPTER TWO: KENYA HAS ITS OWNERS Introduction …………………………………………………………………………… 102 Moi’s Ghost …………………………………………………………………………... 104 Owners ………………………………………………………………………………... 109 Sugar and Commodity Exchange ……………………………………………………... 113 The Sugar Deal ……………………………………………………………………….. 116 Chepkube, the State, and the Commodity Chain ……………………………………... 126 Middle Class Economics …………………………………………………………….... 134

 

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SECTION TWO: THE SPIRIT OF THE LAW The Setting ……………………………………………………………………………. 145 CHAPTER THREE: BOURGEOIS RIGHTS, BOURGEOIS INTIMACIES Introduction …………………………………………………………………………… 157 Legitimate and Legitimizing Intimacies ……………………………………………… 159 Creating a Movement …………………………………………………………………. 167 A Middle Class Project ……………………………………………………………….. 182 An “African” Nation-State ……………………………………………………………. 190 CHAPTER FOUR: CREATING THE PEOPLE Introduction …………………………………………………………………………… 195 Performing the Constitution …………………………………………………………... 196 A Civil Society Program ……………………………………………………………… 199 The Place of Human Rights …………………………………………………………... 201 Educating the People ………………………………………………………………….. 205 A Question of Authority ……………………………………………………………… 212 Constitutional Frameworks …………………………………………………………… 221 The CKRC and the Production of “The People” ……………………………………... 223 CHAPTER FIVE: JURIDICAL DIVINATIONS Introduction …………………………………………………………………………… 235 Judicial Reform and the New Constitution …………………………………………… 236 Origins ………………………………………………………………………………… 240 Judicial Authority ……………………………………………………………………... 249 Law and Politics ………………………………………………………………………. 252 Reforming the Judiciary ………………………………………………………………. 256 Tyranny of the Masses ………………………………………………………………... 260 Judicial Politics ……………………………………………………………………….. 265 REFERENCES ………………………………………………………………………. 273  

 

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THE LETTER AND THE SPIRIT: AN INTRODUCTION Holding on to the Question The transformation of cultural anthropology in the modern era was concerned with moving social analysis away from the idea of discovering, defining, and objectively describing discrete cultural wholes frozen in time, and towards an analysis “that made central the aspirations and demands of groups usually deemed marginal,” (Rosaldo 1993:35) a process that involved contending “with boundaries that crisscross over a field at once fluid and saturated with power.” (Rosaldo 1993: 45) Central to this transformation in the discipline is the idea that anthropology is a field where the question of what constitutes a society is continuously being opened-up. This is a political question in the sense that attempts to push at the margins of custom and tradition are necessarily met with push back, but it is a political question in a much more basic sense: the question of what and where these margins are, is the question that ultimately allows a society to come into being as a particular thing with particular boundaries at a particular time. Geertz’ entreaty to see culture “as a set of symbolic devices for controlling behavior … [that] provides the link between what men are intrinsically capable of becoming and what they actually, one by one, in fact become” (1973: 52) is an appeal to see the concept of culture as a way of continuously challenging any attempt to prematurely (and all attempts will be premature) close off the question of what man is because man is always becoming. The concept of culture that Geertz outlined would point towards a way of understanding communities that always keeps open the question of what that community is. This is what I refer to as the political question. The concept of culture introduced by anthropologists in the wake of various social and political movements in the 1960s (and beyond), and aimed squarely at confronting power and upending various historical inequalities, provided, most importantly, a way of keeping the question of who gets to define what a community is, in suspension. This was true in terms of general conceptualizing around both American and global society, but was vitally true when it came to pushing boundaries in academia and scholarship. The concepts developed in this particular institutional setting offered up, to a much larger

 

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public, tools with which people could re-think, re-imagine and re-shape their communities. In many ways, what the transformation of anthropology (and academia) offered, were tools meant to react to and push back at a particular power structure, one that manifested in particular ways in the West in the mid-to-late twentieth century. The transformation of anthropology was necessarily tied to a particular historical era and to a particular social and cultural topography. And it flowed through, and extended, channels carved in that topography by a social history of disciplinary demands, institutional concerns, and personal attitudes and sensibilities. At the heart of this transformation of anthropology was a commitment to difference and to democracy. There was a desire to extend to all those at the margins, the opportunities that came with privilege. This was not a desire to make everyone the same, or an assumption that differently-placed individuals and communities cared about or wanted the same things, rather, it was an acknowledgement that poverty often accompanied such social marginalization, especially within the growing and globalizing capitalist world system. What was being invested in, then, was not just a way to fight a particular kind of power structure. It was a way to fight the totalizing and marginalizing effects of power more generally. What was being offered was a philosophy of power that came out of a particular historical moment and a particular socio-cultural context. This philosophy was offered around the concept of democracy, with democratic society being understood as a society where “the exercise of power is subject to the procedures of political redistributions. It represents the outcome of a controlled contest with permanent rules. This phenomenon implies an institutionalization of conflict. The locus of power is an empty place, it cannot be occupied – it is such that no individual and no group can be consubstantial with it – and it cannot be represented” (Lefort 1988: 17, emphasis in the original). And politics is therefore, “that activity which has the rationality of disagreement as its very own rationality.” (Rancière 1999: xii) The question, not any particular answer, is the key. The process of producing and codifying knowledge, which is a necessary precursor to any attempts to make use of and share that knowledge, always works against

 

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the attempt to keep the question of what constitutes a community in suspension. It is extremely hard, and I would argue impossible, to build any kind of social movement or practice around the refusal to answer the question of what that society is. Even that refusal would be an answer. The point is not that we can’t commit to building and having a certain kind of society, or, indeed, commit to protecting it. However, coming from a lifetime of speaking from and speaking about “Africa”, I believe that a different way of thinking about how to build a democratic society, and how, philosophically, to approach the question of poverty, and of development, is necessary. Africa suffers in comparison to almost everything. Yet, and probably very much because of this, it continues to insist on its place in global society, and its admission to be predated and based on the ideas of freedom and equality – the ideals of liberal democracy. When I say “Africa” insists, I am not trying to anthropomorphize a concept or a place. What I am doing is suggesting that “Africa” is activated and used as a concept primarily as a way of making and denying those claims to belonging, to freedom, and to equality. I am arguing that for particular populations and in particular contexts, “Africa” becomes the stage (although not the only one) on which questions about power, about identity, and about belonging, are fought out. This dissertation arises out of a concern with how a particular response – constitution-making – to the particular manifestation of power around the idea of the State and the institutions and practices of Government in Kenya, and to the widespread social and economic inequalities in the country, appears to be closing off, in the name of democracy, the ways in which contingency, uncertainty, and disagreement shape democratic society. In response, I am attempting to trace out a social history and perform an anthropological analysis of government and reform in Kenya, which does two distinct things. First, I want to show how reform in Kenya is linked to, and cannot escape, the very socio-cultural and historical processes that produced Kenyan society, with all its inequalities, and both the idea and the practice of governance in Kenya. The individuals who participate in reform, the communities they form, and the societies they imagine, all emerge out of the same social and material processes that create the system that reform

 

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aims to challenge. There is, therefore, no “expert” or privileged position from which it is possible to reconstitute Kenyan society or the Kenyan state. That expert can’t be the modern cultural anthropologist, the progressive social analyst, or the enlightened political actor any more than it can be any of the countless experts, philosophers, commentators, or social and economic leaders that have preceded them, or that will follow. Second, I want to show how attempts to “develop” Africa, or to build liberal democratic societies there, have suffered because these attempts do not take seriously the contradiction that the concept of Africa is designed to illuminate, that for society to exist, there necessarily has to be an inside and an outside, and with that, very particular social hierarchies that often offend the sense and the sensibilities of the fair-minded people within that society. It is not just the nature of this offensive content that should be at issue when development interventions are imagined, but rather what this content reveals about the structure of inequality and what this inequality facilitates. Africa is a stage on which power and its contradictions are made visible. It is, therefore, also a space where certain strategies linked to defending, opposing, advancing, and limiting that power, now revealed, can be legitimized. My purpose here is not to suggest whether there should or should not be social, economic, or political interventions in Africa. I am far more interested in opening up the concept of “Africa” and the material and symbolic processes and strategies linked to it, to a critical historical and anthropological analysis. My belief is that different kinds of interventions will flow out of this analysis, an analysis that understands Africa through a democratic prism, and sees, therefore that uncertainty, conflict, and disagreement are at the core of how an “African” society is constituted as African. What this means is that it is important to understand not that Africa needs to be “saved” but that all attempts to save it will fail unless they are constituted around the idea that the locus of power, in democratic society “is an empty place, it cannot be occupied – it is such that no individual and no group can be consubstantial with it – and it cannot be represented” (Lefort 1988: 17, emphasis in the original). This, again, is quite different from saying interventions should not be attempted, but they should be attempted with the understanding that they are doomed, at the very least, to fall apart and fall away. How do we imagine interventions into an African

 

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landscape, serious and pointed ones, when we simultaneously understand not only that they can’t last but perhaps also, that it would be best that they didn’t? I would suggest that there is a need to embrace the contradiction offered up by the process of becoming human; to appreciate that “ to be human is … not to be Everyman; it is to be a particular kind of man.” (Geertz 1973: 53) We become human, therefore, under the guidance of specific cultural patterns and as members of particular historical societies. Embracing this contradiction – of belonging both to a universal and abstract “humanity” but only doing so in very particular and culturally mediated ways – might lead us to both recognize the incredible partiality (in all senses of the word) of our own (and others) views of what the world is, while committing to that worldview and to making the world in its image. A Liberal Symbolic System The story that is generally told about Kenya’s independence in 1963 focuses on the struggle by an African majority to throw off the yoke of colonial rule and to assume responsibility for governing their own affairs. It was expected that as a result, the living conditions of, and social opportunities accorded to, this African community, which suffered in comparison to, most notably, the European minority that controlled government and the economy, would improve. The general thinking behind this, even when not explicitly stated, was that the conditions that the Africans found themselves in was a direct result of discriminatory policies directed against both the community as a whole and individuals within it by a minority government that ruled by coercion and lacked legitimacy. That the colonial system was imposed by European states that promoted liberal and democratic ideologies and that emphasized the importance of both freedom and of equality in legitimating government authority, made colonial authority seem even more illegitimate and arbitrary. While the fight against minority rule was pursued through two separate but often concurrent and co-articulated strategies – a revolutionary call to violently overthrow colonial government, and a more restrained call to retain the current structure of government and reform it to ensure that liberal rights and democratic privileges were

 

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extended to everyone – both strategies relied on the existence of a geo-political system through which “Kenya” would be granted recognition as an independent nation-state, and a moral-legal system through which the humanity of the African “Kenyan” citizen would be recognized. In other words, in order for an independent Kenyan nation-state to come into existence, there had to exist a universe of like nation-states to which it could be compared, and from which it would be distinguished, as one of a common type, and a recognition that its subjects were part of a universal humanity and deserving of the rights and recognitions afforded to the members of this humanity. The Kenyan citizen-subject, therefore, came into existence as part of two different individualizing projects. The first was internal to the Kenya nation-state and involved being a citizen, like other citizens, of Kenya. The second was external to the nation-state in that involved claiming membership in a universal humanity. These two projects have often been conflated, both in public discourse, and in the development of theory about the independence movement and the postcolonial state, and this conflation has worked to hide the differences between the claims that can be made through them, by whom, and on whose behalf. The Kenyan “people” have emerged as the object of all manner of political and policy interventions aimed at the state in Kenya. Yet, what exactly “the people” constitutes is unclear and, it seems, necessarily ambiguous. The development of liberal governmentality has shifted from seeing “the people” simply as a democratic sovereign, (Locke 2003, Rousseau 1968, Hobbes 1839) and towards seeing “the people,” in addition, as a population, and the object of a “science of government.” (Foucault 1991: 98) There seems to exist a similar kind of blurring of boundaries between “popular sovereignty” and “population” as exists between the “citizen” and the “human.” In fact, it seems that it is precisely this blurring on boundaries that allows the opposed categories to come into focus at the precise moment they disappear into each other. When Foucault argues we “need to see things not in terms of the replacement of a society of sovereignty by a disciplinary society and the subsequent replacement of a disciplinary society by a society of government; in reality one has a triangle, sovereigntydiscipline-government, which has as its primary target the population and as its essential mechanism the apparatuses of security,” (1991: 102) he is pointing out that liberal

 

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governmentality relies on the ability to distinguish these theoretical formations, but only as categories of knowledge that disappear no sooner than they appear. While it is around the question of resistance by the African majority to various minority governments – both the colonial government and its successors – that liberal democratic governance in Kenya has often been studied and understood, I am interested instead in investigating what the production of knowledge about “the people,” and the relationship between the categories of Kenyan “citizen” and a universal “humanity” that are almost always tied to it, has meant for how the liberal democratic project in Kenya has been domesticated and subsequently developed. Rather than seeing liberalism primarily as a symbolic system through which “democracy” has acquired its particular form and content in the Kenyan context, I am interested in understanding liberalism as the way in which difference has been created, categorized and managed in the process of allowing a particular “Kenyan” community to emerge. Kenya maps not only onto a physical space, it makes that physical space emerge as a particular set of relationships between people, and as the material content through which these relationships are made legible and acquire meaning. Government has always been for “Kenya” the mediator in these relationships between people and people and between people and things. It is the third term, the symbolic space that allows specific things to appear and to do so in opposition to each other. Between September 2009 and March 2011, I spent time in Kenya doing fieldwork for a research project focused on government reform and constitution making. This period coincided with the culmination of a two-decade-long process of creating a new constitutional order in Kenya with the official promulgation, on August 27, 2010, of a new constitution. My research into the constitution-making process in Kenya was motivated by a desire to understand why, despite the apparent failure of repeated attempts to organize government around the needs and interests of “the people,” belief in the ability of government – although it had to be properly structured and functioning – remained strong, as did the saliency of the concept of reform. An easy answer to this question would point out that it is precisely because government in Kenya has never fully been structured around the interests and needs of “the people,” that there remains a belief that a properly reformed government would be

 

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able to actually meet their needs and reflect their interests. Tied to this is the sense that this properly reformed government would not only reflect the needs and interest of the people, but that it would also be managed by professionals and experts in keeping with best practices. The link between popular sovereignty and the expert and professional management of government is seen as a logical and even causal one even though there is no reason to assume that a government that reflects popular will would be run by experts or professionals. In spite of this, the reform movement – led primarily by an urban, professional, and self-described “middle class” based in Nairobi – who were the driving force behind the constitution-making process that eventually led to the August 2010 promulgation of the new constitution, repeatedly link the two ideas. Popular sovereignty somehow seems to simultaneously imply the professional and expert management of government. Both the idea of popular sovereignty – especially as reflected through democratic processes like elections – and the idea of government by experts, has acquired tremendous cachet in “late liberalism.” I borrow this term from Elizabeth Povinelli who describes it as “the shape that liberal governmentality has taken as it responds to a series of legitimacy issues in the wake of anticolonial, new social movements, and new Islamic movements … [and] a belated response to the challenge on social difference and the alternative social worlds and projects potentially sheltered there.” (2011: 25) I am particularly interested in Povinelli’s assertion that “[late] liberal cultural recognition incorporated and disciplined the challenge that anticolonial and new social movements posed to liberal forms of government by shifting the locale of the crisis and creating a definitive, though undefined, limit on the formative legal and social power of cultural difference. For this shift to become practical, culture had to become pliant to legal and social analysis and political and social incorporation.” (2011: 26) Povinelli is focused here on the process through which culture became something that could be “measured and evaluated” (2011: 26) while coming “out of the mouths of … the general other, the other that complies with the rules.” (2011: 26) But while Povinelli focuses on the role that “anthropologists of a certain structural and structural-functionalism ilk … [who] truly believe(d) that culture is a set of rules – rules of descent and kinship or ritual and symbolic orders – that people do or do not follow as one follows a recipe,” (2011:

 

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26) I attempt to extend her argument as a way of showing how this particular knowledge making structure is liberal as such. What I am interested in doing, in other words, is showing how this insight about how the recognition of culture has been used to domesticate difference and respond to challenges to liberal governmentality, can be extended into an argument about how liberal governmentality works more generally. While late liberalism has involved a new way of recognizing both culture and disparate “cultures,” this recognition has served primarily as a way of deferring the problem that difference raises for liberalism, and, therefore, that democracy raises for liberalism. In Kenya, the liberal democratic project has a very particular provenance. This provenance is linked to but not exhausted by the recitation of the historical development of the Kenyan nation-state. Recent Kenyan politics has been structured around the push to create a new democratic constitutional dispensation, and by the various responses to that push. This push for a new constitution has been understood as an attempt to reform government in order to make it more accessible to “the people” and responsive to their interests and needs. But our understanding of what “reform” is, how it works, and where it emerges from, obscures more than it reveals about “the people.” While reform in general, and constitution making in particular, treat “the people” as a transparent category whose content can be readily provided, through a collection of particular social, individual, and institutional practices and strategies captured under the rubric of reform, anthropological research quickly reveals that it is a disagreement about who “the people” are that is at the heart of political conflict in Kenya. Rather than closing off the question of how government in Kenya is to be structured, how, and by whom, the disagreement about how to count “the people,” or to make the people “count” in democratic politics, is an open question through which Kenya emerges in its particular, and historically contingent, form, and with a particular, and historically contingent, content. My dissertation aims to bring this question – how to count the people and how to make the people count – to the forefront by focusing on how it is both opened up and closed off in the interests of democratic reform in general and the constitution-making project in Kenya in particular.

 

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The project of reform in Kenya starts with the belief that it is possible to have a government in Kenya that is responsive to “the people” of Kenya. It then claims that attempts to create this government have historically been frustrated by individuals, institutions, and ideas that are interested, to the contrary, in preserving existing forms of power. This means reproducing the hierarchies and inequalities that both preserve this power and continue to channel productive resources into the hands of a small, insulated, and anti-democratic minority who use government to meet their own accumulative goals to the detriment of the country as a whole. This minority – an economic and political elite entrenched in positions of power – are the direct descendants of a British colonial system that was put in place to exploit the country’s resources in the interests of a local European minority and the foreign power(s) that supported them. The nationalists who gained control of the structures and institutions of government at independence chose to entrench this system and to derive benefits from it, rather than either dismantling the system or reforming it in order to return to the impoverished and disenfranchised African majority, control of the country’s resources. What makes reform a particularly productive way of organizing resistance to government authority, is that it takes as its object – improving the living conditions of, and the social and economic opportunities available to, the people of Kenya – a project that is readily understood as being of the highest moral importance, and whose results can be easily and transparently measured. The persistence of poverty in Kenya, and the extreme inequalities of social and economic capital that are apparent to the naked eye, are often treated as the direct result of the failure to properly “Africanize” the government, with “Africanize” here understood, in contradistinction to the post-independence government established in Kenya, as a government for “the people” and by “the people.” Popular sovereignty is linked in reform rhetoric to “Africanization,” as a way of both consolidating democratic gains internally and of properly inserting Kenya, and Africa more generally, into a global political economy that has always been weighted against equal African inclusion. Again, it is the fact that this inclusion is impossible to argue against as a moral imperative in a liberal democratic world built around demands for equality, which renders this project of “Africanization” almost completely immune to challenge while simultaneously making it accessible and transparent as a category of

 

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knowledge and as a way of organizing social, political, and economic interventions into and in Kenya. What might get lost if the current push to reform government is treated as a singular event in a teleology that will culminate only with a properly reformed and properly legitimated government running Kenya, is the fact that the demands made by the reform movement are neither new nor particularly unique. The push for reform and for a new constitution relies on a history of Kenya that sees reform as the progeny of popular movements – such as the “Mau Mau” war of independence – that were interested in restoring land rights and local African control over economic resources. Given, however, that the key players in the reform movement emerged from a self-consciously “middle class” location, and were in positions of social and economic privilege, the only way to link to this popular history was to establish the “middle class” as something both qualitatively and quantitatively different from the “elite” that benefited from government at the expense of the masses and of popular interests. It is this attempt to constitute the “middle class” in Kenya that is the particular focus of my work. The “middle class” is a way of creating knowledge through which Kenya emerges as belonging to a liberal democratic world order. It is a way of understanding and structuring history so that it channels an idea of development and progress that culminates in the triumph of liberal ideals in the service of democratic egalitarianism. It is a way of thinking and speaking about power that locates power both inside and outside the processes that create the middle class, providing this middle class with the ability to selectively and alternately challenge and support, dismantle and reproduce, the institutions and structures that produce this power in the interests of a larger public from which it is simultaneously removed and always connected to. It is a way of benefiting from privilege, and maintaining those benefits and that privilege, while attacking the processes that create it. Finally, it is a way of thinking about, occupying, and making use of liberal processes of subjectification that allow the liberal subject to emerge as connected to a universal humanity while participating in individuating practices that necessarily create hierarchy and inequality between people. The liberal subject is a divided subject, and it is being middle class – both inside and outside the processes of production – that allows this liberal subject to act in a liberal world.

 

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Anthropology’s distinctive approach to the concept of culture and its constitutive focus on difference, can help us understand how power and inequality are manifested in a liberalism social order. Gupta and Ferguson ask us to move “away from seeing cultural difference as the correlate of a world of “peoples” whose separate histories wait to be bridged by the anthropologist and toward seeing it as a product of a shared historical process that differentiates the world as it connects it.” (1992: 16) Rather than taking difference “as starting point,” they suggest that “we question a pre-given world of separate and discrete “peoples and cultures,” and see instead a difference-producing set of relations, … [allowing us to] turn from a project of juxtaposing preexisting differences to one of exploring the construction of differences in historical process.” (1992: 16) Doing so, will allow us to focus not just on how difference is produced, but also on difference as the field of conflict, competition, and contestation that we can properly understand as political. What the Kenyan context shows is that liberalism is, primarily, a way of classifying, capturing and domesticating difference in the interests of a positivistic political project, understood in two senses of the word positive. That is, first, a politics built around the idea that the world can be comprehended, ordered, structured, and constructed to respond in particular ways and to meet particular ends in line with particular definable inputs. This project relies on the work of a technocracy – experts on governance and professional managers of social, economic, and political processes – whose interventions are deemed necessary to the effective construction of the Kenyan nation-state. Second, is a politics that attempts to continuously and consistently occupy the positive or credit side, in moral terms, of the ledger produced by the process of constructing difference. This project relies on the production of an idea of equality that makes the inequality that is necessarily produced as difference something that needs to be expelled or eliminated. Democracy here acquires a very particular content, it is understood as a way of making equality the object of political action, but in so doing only succeeds in evading the political question – that is the question of how to manage the exclusion that is necessary to the creation of any community, the exclusion that ensures the production of difference as such.

 

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Difference is only possible in a world organized by knowledge. It is the attempt to know the self that both necessitates and ensures the production of the other. And the attempt to know the self only takes place in the context of a community to whom one belongs – a community that provides the social context in which processes of subjectification are made possible. The community both allows the self to come into being as one of a type – citizens, subjects, family members, etc. – and as one of a type that can only be understood by the existence of those that are not of that type. These communities themselves can only come into existence if there is both an outside of the community, and like communities – nations, ethnicities, families, etc. – to which the community can be compared and contrasted in order to emerge into knowledge. These processes of subjectification are both cultural and political processes. They are cultural processes if we understand culture, as Geertz does, as the “historically transmitted pattern of meanings embodied in symbols, a system of inherited conceptions expressed in symbolic forms by means of which men communicate, perpetuate, and develop their knowledge about and attitudes toward life.” (1973: 89) Geertz asks us to think of culture as “a set of control mechanisms – plans, recipes, rules, instructions (what computer engineers call “programs”) – for the governing of behavior.” (1973: 44) This “'control mechanism’ view of culture begins with the assumption that human thought is basically both social and public.” (1973: 45) In so doing, however, Geertz points us away from seeing culture as something added onto the social and instead towards seeing culture as the way the social is constituted dialectically with the production of the individual. Anthropology is particularly interested in elucidating these social contexts, and in understanding the culture that makes certain choices both possible and comprehensible within these social contexts. Whatever is “Kenyan” about a Kenyan community is both an idea of the social that organizes that community, and the ways in which that idea is given form by the individual. When Geertz argues, “culture provides the link between what men are intrinsically capable of becoming and what they actually, one by one, in fact become,” (1973: 52) he opens up a way of seeing difference as something that cannot be contained or domesticated. Because “becoming human is becoming individual, and we become individual under the guidance of cultural patterns, historically created systems of

 

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meaning in terms of which we give form, order, point and direction to our lives,” (1973: 52) the process of becoming an individual, and as an individual, a member of a community, ensures that the political question – the question of the exclusion that is constitutive of this process – is continuously generated, and generated as something that challenges and expands the social logic that underpins the attempt to know. Liberal governmentality, therefore, provides a window into the processes through which community is constituted as something that is contingent, changing, and unknowable. This dissertation is aimed at liberal knowledge-making and political practices, not in order to discredit or challenge them, but rather to reveal how every attempt to create a “liberal” Kenya – a process that necessarily involves creating Kenya as an object of liberal knowledge-making practices and strategies – not only (re) produces a particular set of cultural control mechanisms but also necessarily expands what can be understood as really liberal. Liberalism is an iterative process that leaves behind artifacts that are sedimented over time, and become part of the control mechanism, the something “Kenyan”, through which behavior is governed. The refusal to see the attempts to produce a liberal Kenya as an iterative process – one that has involved every government administration, and every challenge to that government – allows liberalism to always be imagined as a process through which the world can be ordered and re-ordered, but not necessarily as what that world already is. The attempts to reform Kenyan government, to make it more liberal and more democratic, therefore, tend to ignore the fact that Kenya is already liberal and already democratic, and both precisely because the various projects – economic, social, and political – aimed at producing “Kenya” have done exactly that; they have produced Kenya and produced it through the channels made available by the “Kenya” – both content and idea – that they were building on. Liberalism has to be approached as more than a way of understanding, organizing, or attempting to (re) make the world; it has to be approached as a world already in process. One way of doing so is to pay attention to the kinds of behavior patterns – customs, traditions, etc – that are the focus of liberal attempts to reform both a Kenyan government and a Kenyan society, but rather than seeing these as evidence of an illiberal world that needs to be confronted by and re-organized around liberal knowledge-making

 

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and liberal governmentality, these behaviors need to be understood as traces of the attempt to impose liberal form over what is always already liberal content. In other words, rather than simply approaching the world as if it is pure content in search of a properly liberal structure through which it can be made available to knowledge, to approach liberalism as a world-in-process means seeing this content, and the liberal form that attempts to give structure to it, as the manifestation of an iterative process through which the world is made liberal by failing to be recognized as already liberal. In the end, I am arguing that this way of understanding liberalism as world-inprocess is important in the Kenyan context for three reasons. For one, it seems to me that part of the reason that liberalism and liberal democracy maintain their abstractness and, therefore, their ability to not only colonize worlds but to always be the ability to colonize worlds, comes from the fact that liberalism is seen as a concept that emerged out of a particular historical, geographical, and political location, but, is otherwise disconnected from social life and social production. It has a “History” but no history. What is lost is the ways in which liberal practice and liberal thought emerge out of, build on, and flow through channels that are constructed via very particular world-making projects with very particular and local political goals. Liberalism is not an abstract concept but a world-in-process, and as a world-inprocess it emerges in numerous locations that all speak to and speak of each other. My point, therefore, is to move away from any potential talk of liberalisms, as if what is found in Kenya is some corruption or some incomplete version of liberal world-making processes. Rather, I want to talk of what happens in Kenya as liberalism as such, and to claim for Kenya, but not only for Kenya, the ability to say what liberalism is without looking outside and beyond for a concept that allows the Kenyan condition to be diagnosed, confronted, and transformed. Liberalism as world-in-process tells us that if there is any liberal transformation to be made in and of Kenya, it arrives not from looking without but for searching within. And it emerges not out of the attempt to reform the nation or the state to meet with a liberal ideal, but to confront the political question opened up by how liberalism constructs difference while attempting to domesticate it. Finally, liberalism as world-in-process allows us to pay attention to the role of intimacy and of the numerous contingent, overlapping, and contradictory intimate

 

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practices and strategies that structure the production of difference and the attempts made to confront that difference. Anthropologists have long noted the importance of affective structures to the construction of community (Thiranagama 2011, Stewart 2007, Malkki 1995), and especially to the role that affect and sentiment play in constructing the symbolic systems that underlie social relations. (Yanagisako 1985) And while those affective structures have often been bled of their affect, leaving less sensuous and less malleable structures like “society,” “economy,” and “polity,” to be mined for information about how communities work, it remains the case that any attempt to discover a kinship structure let’s say, or to uncover the economic, social, or political motivations behind different kinds of alliance, will ultimately reveal more about the ways affect, sentiment, and intimacy structure those interactions than about anything other than the most interested, particular and historically contingent patterns. In order, therefore, for the interested to become disinterested, for the particular to become universal, and for the historically contingent to become both abstract and necessary, affect, sentiment, and intimacy have to be expelled. I am not interested, however, in reclaiming for affect and sentiment a rightful place in the liberal knowledge-making universe. Instead, I am interested in highlighting the erasures and expulsions associated with them in order to put focus on what is left behind by these expulsions, and what this process helps create as liberal knowledge and liberal practice. I do so, because the attempt to restore affect to the practices associated with liberal knowledge-making, works precisely to re-center a practice that exists because of, and reproduces itself through, expulsion. This process of expulsion is also a colonizing and parasitic one; relying on challenges from those it excludes to ensure that it maintains its structural position and its structuring role. This is the process that I want to place under a microscope, and not in order to challenge it or in an attempt to transform it, but rather to reveal how such challenges and attempts at transformation and change feed the liberal machine. My purpose is simple. I want to see this machine for what it is so I can attempt to understand how to use it and what it can be used for. If we are to take seriously the notion that our social interactions serve symbolic purposes (Yanagisako 1985, Geertz 1973) then we also have to pay attention to the ways our symbolic processes serve social functions. While it is with good reason that modern

 

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anthropologists have focused on the former – essentially because the social world has often been approached as if it truths were self-evident and commonsensical – the move to challenge this view of society as transparent category, has to, by necessity, keep the meaning of symbolism, and the meaning of meaning, fairly constant. Given the work anthropology has already done to destabilize the social and to challenge the assumptions on which knowledge of it is based, I come to this project, partly to destabilize the meaning of meaning in relation to that destabilized social. My work with members of Kenya’s “civil society” (which acquired its contemporary meaning in relation to the constitution making project and the reform process) and its “reform movement”, starts not with an attempt to collect, collate and attribute meaning to their specific actions, but proceeds instead from the symbolic processes around which their particular social interactions have come to be structured. In particular, I pay attention to how liberalism acts as a symbolic structure around which social relationships can be built; and in building those social relationships, a way of structuring the expulsions, erasures, and exclusions that allow a properly liberal society to emerge. As a symbolic structure, liberalism appears in very particular places, in very particular forms, and as a way of attaching meaning to very particular collections of actions, individuals, and ideas. Liberalism is partly a way of creating knowledge about a world in which liberal interventions are possible, partly a set of ideas about how to organize that world, partly the location from which and through which those ideas emerge and are made available for consumption, and partly a set of rules about how accumulation and distribution – of people, things, and ideas – is to be organized. It is necessary therefore, to investigate how meaning is structured in liberalism and that means engaging with liberal theory in a slightly different way than anthropologists generally approach this theory. Rather than using theoretical literature just as a way of framing, contextualizing, and understanding the empirical material that we grapple with, I want to, in addition, use this theoretical material as that empirical data. I do so, first, because my informants not only actively engage with the theoretical literature themselves, but they emerge out of the same kinds of (and often the same exact) social, economic, and professional contexts as the theorists, intellectuals, and writers that

 

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produce this theoretical material. In fact, as researchers, academics, intellectuals, and policy experts, part of their professional work is often to produce such material. Second, it has often been the case that Africa, as the intersection of place and idea, has generally been understood as a laboratory of sorts for liberal theorization. Existing both as the “other” that allows a liberal world to emerge in the developed West, and as a field where liberal theory can be tested via various policy interventions, the political and social economy of Africa has to be understood through what Bayart terms the “practice of extraversion.” (2009: xxxvi) Basically, Bayart’s argument is that Africa exists in a relationship of dependency to an external environment through which differentiation is created and productive flows are managed, and “at the heart of which is the creation and the capture of a rent generated by dependency and which functions as a historical matrix of inequality, political centralization and social struggle.” (2009: xvii) Bayart makes this argument in order to challenge the assertions of dependency theory, which suggests, “Africa’s contemporary political struggles and wars are … the consequence of a radical rupture – colonization.” (2009: xxxvi) Instead he argues that these struggles “are symptomatic of a historical line of continuity, namely a practice of extraversion. They are not an expression of the marginalization of Africa within the world economy but of older dynamics (or occasionally of very new ones) generated by the manner of its insertion into this world economy. (2009: xxxvi) The claims, therefore, made by reformers “that the lack of legitimacy of the State in … [Kenya] is due to the absence of a suitable social and cultural base, to the imported origin of its institutions and to the alleged failure of their adaptation” (Bayart 2009: xxxvi) ignores the continuity of the processes through which the State in Kenya emerges. More importantly for my argument, these claims also ignore the historical and material processes through which these claims are made and through which they actually emerge as makeable. Central to these processes is the existence of a local class of intellectuals, academics, and professionals who, through a similar process of extraversion, domesticate liberal theory and its particular relationship to what comes to be understood as “Africa” and as “Kenya.” This relationship is one in which liberal theory is produced as if it exists at a remove from the material and historical processes through which it emerges. Africa

 

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actually becomes the “other” and the object of liberal knowledge-making practices that produce this other as something that is knowable, manageable, and governable. Africa, therefore, plays a double role in liberal theory. It is the “not-liberal” or the “not-yet-liberal” that allows a liberal world to emerge in a particular location – Western Europe and North America, but it is also the “liberal” in that it is this laboratory where strategies and practices that emerge out of liberal knowledge-making and liberal theory can be tested out and become material. The Kenyan state emerged as a location where debates about and competition for control of policy-making were fought out, in different eras, between different local and international parties with overlapping and contradictory aims and beliefs. (Lewis 2000, Maxon 1993, Trench 1993, Berman and Lonsdale 1992, Clough 1990, Wasserman 1973) Of great importance also is the fact that these debates and this competition was primarily between members of elite classes – who claimed a right and ability to speak for “the people” – and involved the use of, and reproduction of liberal ideology. (Clough 1990, Bienen 1974, Furedi 1973) Finally, it is important to note that all of this literature also points to the fact that the use of this liberal ideology in policy debates and in the competition for state power did not just emanate from these political classes, but did so in a very particular fashion. The idea that it was possible to know, manage, and govern a polity through the State, was linked to the (re) production of a class of individuals whose education and social position enabled them to employ liberal knowledge-making practices when making political, social, and economic interventions into Kenyan society. This class created, channeled and consumed Kenya as a particular kind of object. This object – a properly “liberal” object – is an object that can be studied and shaped in accordance with the needs, desires, beliefs, and most importantly, values, that emerge out of this particular social class. This is a lifestyle that is both displayed and consumed, with the consumption helping to continuously mark and re-mark the importance of the lifestyle, the display, the consumption, and the process of marking and remarking. It is a lifestyle – with an ethics and a politics attached to it – that is always aimed at a redeemed future. It is a lifestyle that produces the hierarchies and inequalities of knowledge, opportunity, and access, which allows for “experts,” a moral high ground (and its occupants), and a “people” in need of categorization, organization, and representation, to be produced as necessary

 

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elements of that push towards reform and redemption. It is a lifestyle tied to a knowledge-making practice that sees history as fuel, and that seeks to expel contingency from history in the interests of a narrative that drives incessantly towards that redemption. This push for redemption, for reform, for change, is a productive machine. But this machine does not so much build up to – starting from an origin, as in a teleology – to a redeemed and properly liberal future – as it does pull in, as if by a process of attraction, towards an origin that always escapes attempts to know, grasp, and contain it; an origin that therefore can only ever exist as a reproduction. The origin of the object “Kenya” is the lifestyles of the cosmopolitan, educated, urban, and professional middle class. It is this lifestyle that acts as the attractive force that compels action, and in compelling action, compels production. This production is material and social. It is the relationship between this materiality and this sociality that produces value as such, and what is valuable specifically. This production, and this understanding of what value is, can only exist within a bounded community – a sociomaterial space where objects have particular meanings, and the interactions between people and things, people and people, and things and things can proceed in particular ways, and through which, more importantly, meaning itself is structured. Meaning therefore, more than anything else, is a process – the process of making meaning, of making meaning mean. However, this process is an always open question, a process that is always under challenge by other ways of allowing people and things to interact, and of making meaning mean. This is a question about the contents and the contours of the object; a question about what is in the object, and what is outside of it, and which makes it a particular, and knowable, thing. It is this question that liberalism, as a political project, seeks to foreclose. It does so by seeking to provide not just an answer to the question at a particular, and contingent, moment, but also to provide a way of always answering that question with that particular, and contingent, answer. Liberalism seeks not to be an answer to the historically contingent ways the political question presents itself, but an answer to the political question. My research uses the reform movement in Kenya, and the constitution-making process, in order to reveal how liberalism works, from a particular location yes, but also

 

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as the abstract thing known as “liberalism.” My dissertation mines Kenyan history in order to reveal the numerous contradictory, contingent, and competing events, interests, and interactions, which allowed a particular history of Kenya to emerge. I also reveal how the process of reform both emerged from this history of Kenya, and emerged as a continuation of this process of producing Kenya. I reveal how the reform process made use of a particular way of thinking about what history is, and what is important in Kenya’s history, to push towards a particular goal – removing the KANU government – from the late 1980s forward. It is important to focus on the specificity of the movement’s goals, because it is this specificity that has continued to structure the movement – ensuring that certain actors, certain beliefs, certain histories, certain practices, and certain strategies are considered authentic and legitimate – while allowing it to connect to an abstract liberal ideology that allows these specifics to claim and colonize the entirety of the political field. This project is of particular importance for Kenya because the reform movement threatens to collapse everything into an abstract liberal discourse that can be effectively and widely dispersed at the expense of all alternative interpretations of the Kenyan situation. That this liberal discourse is articulated by, with, and as a Kenyan middle class, ensures that it achieves a materiality that also threatens to colonize Kenya. Kenya Vision 2030, Kenya’s neo-liberal development blueprint, can be partially understood as a middle class dream of what Kenya should be – modern infrastructure, cosmopolitan consumers, professional workers, international connections, and empty of the people whose exclusion from this fantasy presses up against these middle class lives on a daily basis, demanding to be acknowledged. We have reached a point where liberal-speak, and with it a blanket condemnation of government, serves primarily to allow a group (and increasingly a class) of professionals to demonstrate their importance, legitimate their lifestyles, and reproduce the opportunities that their social position allows them. There is no place from which anyone can claim to be able to remake Kenya into a particular thing or to mould it to match a particular image. There is no properly liberal government and no always-legitimate authority that can act with impunity to construct the world that it wants. For every push there is push back, and for every community, there are those that it excludes. Liberal governmentality works be hiding this process, by

 

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removing it from view and making politics liberal rather than making liberalism political. This project works to bring back into view not just the historically contingent acts of exclusion, but also the process of exclusion itself. It aims, at its simplest, to bring politics back into view. Ghosts My story is first and foremost a story about ghosts. As I sit writing in late 2013, at a time when Kenya has a new constitution and political battle lines are continuously being drawn and redrawn around the push to fully implement the letter and the spirit of the new law, it is striking how much the story of Kenya on which the demand for government reform and for this new constitution rests seems to simply ignore. The first ghost here is Daniel Moi, the second President of Kenya, and in particular the authoritarian government that he is said to have presided over. Many of the civil society and political leaders who are behind the push for the new constitution and for government reform, cut their teeth as activists and politicians during the Moi regime, and carry the scars of the battles waged against him and his government. Concepts like “the nation”, “the state”, “the people”, “human rights”, and “democracy” acquired a very particular content in the context in which constitution making emerged as a way for opponents of the Moi government to mount a challenge to it. Even though dressed-up in the language of formal liberal rights, these concepts reflected, and carried with them, the specific desires, hopes, anxieties, and fears of the individuals who mounted this challenge. These emotions, however, can only be understood in relation to the specific social context in which they emerge. They are as much about “being” as about “belonging”. In other words, to understand constitutionmaking in Kenya, we have to figure out who, specifically, was involved in the constitution-making process, how, at what points, with what intentions and with what outcomes, but far more importantly, we have to bring into view the specific collectives and communities out of which these individuals emerged. My point is that not only did formal liberal concepts like “rights” and “democracy” have a very specific content in the Kenyan reform context, but that this

 

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content needs to be understood in terms of the struggle to emerge as an individual in a particular, and particularly Kenyan, socioeconomic and socio-cultural context. And this was not a struggle to emerge as just any individual, but specifically, as an individual of some accomplishment and refinement, an individual who has the right, the wherewithal, and the opportunity to discern what is of value in and to a society and to act on that knowledge in the interests of that society. My dissertation focuses on one such set of individuals – the members of the “reform movement” that used a demand for a peopledriven constitution-making process as a way to challenge the Moi government. These individuals became governance and constitutional “experts” by dint of their training, the physical location from which and through which they worked (in Nairobi, the Kenyan capital, and abroad in various Western democracies), their socioeconomic backgrounds, and because the combination of these factors allowed them to occupy a socio-political location from which it was possible to claim to act in the interests of the Kenyan “people”. The Kenyan “people”, however, are themselves ghosts. Needing to have experts and activists intercede on their behalf in order to give their needs a voice, they do not so much speak for themselves as much as they are made to speak. The people-driven constitution-making process and the law that it has produced, asks as to understand that “the people” can be made to speak with one voice, first by a process through which their interests are collected, collated, analyzed and communicated in the general terms, and then by a process through which these general terms are transformed into law and made the origin and raison d’être of the nation-state. The “people” here are made to stand-in for desires and anxieties of the particular community from which the constitutional document emerges, but the individuals and communities that the “people” are meant to encompass remain apparitions, floating wordlessly by, unseen and formless, until conjured, in a form just like this by those of us who call on them to give us shape, they emerge to mouth in unison platitudes about rights and governance and justice. James Ferguson asks us to pay attention to what is happening in Africa by taking it seriously as a folk category. In spite of this, most analysis of Africa does not attempt to investigate the particular ways in, and processes through, which this category emerges and the uses to which it is put. Rather than making “Africa” local, this scholarship

 

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attempts to find the local in Africa. This is done primarily by paying attention to “the people” – usually a rural and urban poor but also sometimes an emergent middle class (the darling of most attempts to monetize and develop “Africa” – and attempting to discover what it is they want, think, and feel. This is the strategy taken by the constitution-making process in Kenya, which sought to create a “people-driven Constitution” and a “pro-people” government, by going directly to the source – locating “the people of Kenya” by going around the country and engaging them in a series of public forums and views-gathering exercises in order to find out what it is they want from their government. In this narrative, “the people” are the source and purveyors of truth about the country, and the civil society activists, governance experts and other professionals who collect their views, merely a vehicle through which these views are transported and eventually translated into the language of liberal democracy – its ideologies, institutions, processes, and structures. In spite of this avowedly central role, these interlocutors – researchers, theorists, and policy experts – are presented primarily as objective and neutral middlemen. I want to trouble the neatness of this narrative. And I want to do so by challenging this idea of neutrality in a very particular way. The legitimacy of the process through which the views of the people are translated into the processes and institutions of democratic governance and practice by these professional interlocutors is connected to an acknowledgement of the privileged position these interlocutors occupy. The acknowledgement of this “middle class” privilege is at the heart of the progressive mission to fight poverty and inequality by attempting to guarantee that liberal rights will be protected and democratic governance promoted. My challenge, therefore, is not focused on arguing that these individuals are not aware of their privileged and therefore interested position vis-à-vis “the people”, even though this might be true. Rather, my challenge is rooted in exposing how the interests, beliefs, practices, and tactics of these activists and experts, are inextricably tied up with, and structured by, the habits, mannerisms and other embodied practices linked to the particular physical and social landscape they simultaneously inhabit and continuously bring into being.

 

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This landscape is inhabited by “the people”, by a “political and economic elite”, and by a “middle class” that represents the hope of creating the kind of classless society that is the founding myth of the liberal democratic knowledge-production and governance systems. I want to start my investigation of the constitution making and government reform processes in Kenya, therefore, by turning to the self-conscious acknowledgement of class privilege that has framed the interventions of activists, experts, and governance professionals into the socioeconomic and politico-legal fields that have come to be understood as “Kenyan”. I treat “middle-class” as a folk category – a native term that has a particular provenance, a particular meaning, and a particular function in the production of “Kenyan” society and the political struggles that have been framed by and emerged around this “Kenyan” object. In addition, I argue that who “the people” are in this particular context is tied to what “Africa” is and to the domestication of the term in a “Kenyan” socio-political context. “Africa” itself is a folk category, one that is invoked to claim belonging to a shared humanity that is always already the locus of certain kinds of privilege. One of these is the privilege of being or belonging to the “knowable community.” I take this concept from Raymond Williams (1985) who uses the portrayal of the “country” and the “city” in English literature from the sixteenth century to the twentieth as a lens into a particular social history. This is the history of a social crisis that attended the development of a capitalistic mode of production that “began, specifically, in the English rural economy, and produced, there, many of the characteristic effects – increases of production, physical reordering of a totally available world, displacement of customary settlements, a human remnant and force which became a proletariat – which have since been seen, in many extending forms, in cities and colonies and in an international system as a whole.” (Williams 1985: 292) Williams draws a contrast between the work of Jane Austen, whose knowable community is “wholly known … [but] is as an actual community very precisely selective” with neighbors being “not the people actually living nearby … [but those] living a little less nearby who, in social recognition, can be visited” (1985: 166) with the knowable community in the novels of George Eliot where we find “other kinds of people,

 

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other kinds of country, other kinds of action on which a moral emphasis must be brought to bear.” (1985: 166) Williams is interested in how “the people” enter the knowable community in the face of changes that begin with the industrialization of England. This “change in literary bearings which brings into focus a persistent rural disturbance that had previously been excluded or blurred” (1985: 166) “is part of a crucial history in the development of the novel, in which the knowable community – the extended and emphatic world of an actual rural and then industrial England – comes to be known primarily as a problem of ambivalent relationship: of how the separated individual, with a divided consciousness of belonging and not belonging, makes his own moral history.” (1985: 174) In other words, “the people” enter not as part of the intimate networks – an aristocratic (and landed) elite and those of a similar class background – which both Jane Austen and George Eliot emerge from and who are the subjects of their novels, but as a way of thinking about and coming to terms with the changes within their society. This society is framed very much in terms of a particular kind of “social recognition” and the possibility of intimacy. The knowable community for George Eliot includes the voices of people who were silent in the novels of Jane Austen, but these voices are included because they represent, and act as a way of confronting, the kinds of irruption into, and changes in, the social lives of an English gentry. The certainty of the “wholly known” but “precisely selective” social world is removed and replaced by an anxiety about the margins of the social and how to belong in this new social. The “separated individual” is freed from social custom by the changing nature of social production in industrial England, but is therefore, simultaneously, faced with an anxiety about belonging, about status, and about what is valued and valuable within society. The only certainty exists in the past, in the visions of a rural England and the social customs and personal habits tied to it. The “separated individual” is therefore able to find order and certainty by recourse to a personal sensibility that marks belonging to that lost society. Williams argues that the “real step that has been taken is withdrawal from any full response to an existing society. Value is in the past, as general retrospective condition, and is in the present only as a particular and private sensibility, the individual moral action.” (1985: 180) As such, we end up with “the re-creation of a country house

 

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England, a class England in which only certain histories matter, and to which the sensibility – the bitter and frank sensibility – of the isolated moral observer can be made appropriate.” (1985: 180) Where Williams uses the idea of the “knowable community” to make an argument about how social developments in a transforming England are made sense of and then reembedded in existing social conventions and ways of knowing, I extend its use to investigate the development of Nairobi as a particular outpost of the capitalistic mode of production, which began in rural England, and the anxieties about class and belonging that came with it. I am not only making the argument that the physical and social transformations that occurred in Nairobi and came to be understood as “Kenyan” were particular local iterations of a capitalist mode of production that was taking over the world, but, far more specifically, that this physical and social transformation was linked directly to the anxieties about status and belonging that emerged out of the transformation of a rural English economy. The kinds of privilege that structure the encounter between “middle class” activists, experts, and governance professionals on one hand, and “the people” on the other, emerge directly out of the process through which a “knowable community” – a white settler society dominated by a small number of English aristocrats – was created around the myth of a classless liberal democratic society made up of “free” individuals. It is the social history of the production of this community, and on the ways the physical and social landscape that it created as “Kenya” on which I focus. In particular, I focus on the anxiety that framed the creation of this landscape, and argue that the process of locating “the people” and discovering what they think, feel, and desire, is a way of deferring and displacing an anxiety about status, about belonging, and about value. Lifestyles of the Urban and African In his description of the relations between Africans and Europeans in Broken Hill, a mining town and railway depot in what was then Northern Rhodesia, Godfrey Wilson takes note of the moral, intellectual, and emotional elements that connect the two groups and the desire of Africans in the town “to gain the respect and to share the civilised status

 

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and the new wealth of the Europeans, whose general social superiority is always before them.” (1941: 15) Clothes, “the one readily available item of European wealth which gives them an immediate appearance of civilized status”, (1941: 15) and which are both durable and visible, command the attention, and the disposable income, of the Africans in Broken Hill. “The closer the contacts they have with the Europeans the greater is their desire for clothes and the more clearly do the clothes symbolize their claim to civilized status.” (Wilson 1941: 18) The symbolic value of these clothes, however, is tied to the audience for whom the clothes are intended, who, at least in Wilson’s telling, are primarily the European residents of the town. Turning his attention to African dance clubs, Wilson notes that while the “affairs of the dance club touch only a minority of the Africans of Broken Hill, … it is in their behaviour that the significance of the universal passion for clothes becomes most clearly apparent.” (1941: 19) It is in “the invitations to watch Africans dance, and in the small European response [that] the general emotional relationship of Africans and Europeans in Broken Hill is manifest.” (1941: 19) “The adoption of European dress (and its display in dancing) goes together with the adoption of European manners … and both alike express the Africans’ claim to be respected by the Europeans and by one another as civilized, if humble, men, members of the new world society.” (1941: 19–20) James Ferguson notes that such mimicry raises a problem for anthropologists of Africa, especially anti-imperialist anthropologists, who, embarrassed by this mimicry, and its uncertain utility to the anti-imperialist mission, seek “to contain the otherwise scandalous implications of imitation and to recuperate it as a practice that is both culturally authentic and politically resistant.” (Ferguson 2006: 160) Ferguson, in reading Wilson, and in extending Wilson’s observation that the appropriation of European dress and mannerisms was to press the claim of Africans to recognition as members of a new world society, is interested in suggesting instead that “the most vital political question raised by practices of colonial emulation did not concern the incorporation of Western symbolic materials into African local cultural systems … but, rather, the place Africans were to occupy in a global sociocultural order.” (2006: 161) This is a “claim for equal rights of membership in a spectacularly unequal global society.” (2006: 174–175)

 

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When talking about Africa’s place in this “spectacularly unequal global society”, it is important to note that this inequality is not just between nations, or between global south and global north, or even between Africa and the West. It is not, in other words, simply about geography or global socioeconomics and geopolitics. Africa is also a symbol, a miner’s canary if you will, a stand-in for, a symbol of, and perhaps a laboratory for the creation of certain material realities and social relations that structure how our global society looks and works. Ferguson suggests that the “questions raised by considering Africa’s place-in-the-world … point to the need for a new framing of discussions of the global … [one that] must first of all be a discussion of the social relations of membership, responsibility, and inequality on a truly planetary scale.” (2006: 23) Which makes it important to focus in not just on the relations between Europeans and Africans, but between Africans and Africans. Returning to Wilson, it is important to remember that he notes that while the “affairs of the dance club touch only a minority of the Africans of Broken Hill, … it is in their behaviour that the significance of the universal passion for clothes becomes most clearly apparent.” (Wilson 1941: 19) We need to understand this statement alongside his observation that the desire and need to adopt European habits was linked to the status of the Europeans, and the fact “that it is just because the Africans of Broken Hill accept the general superiority of the Europeans that the frequent European discourtesy is so exasperating to them.” (1941: 20) Reading these two statements together, one can easily reach the conclusion that if what was being sought by the Africans in Broken Hill, especially by those who had the closest contact with the Europeans, was the recognition of a shared status as civilized members of a new world society, what was also being sought was the ability to be recognizably different from the Africans who were not to be granted similar membership in this new world society. If these Africans were indeed seeking to be Europeans, just African ones, what might this mean for equality in this new global order? This kind of equality seems a little Orwellian; there are definitely some Africans here that are more equal than others; or at least, seem like they’d like to be. My purpose here, however, is not to offer guesses as to the motives of the Africans who were members of the dance clubs. Rather, what I am interested in doing is noting that participation in these clubs, and the attempts to mimic or appropriate

 

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European habits, mannerisms, and styles of dress, also meant taking on the ways in which status was symbolized, and taking part in the processes of production, exchange, and consumption, through which European habits, mannerisms, and objects acquired the symbolic value that allowed the colonial system to reproduce itself. That this process is tied to intimacy and its repudiation is also not unimportant. What I want to suggest here, is that what we understand as “Africa” and “African” has a very particular provenance, one tied to the colonial encounter but also tied to the production and embedding, in both the social and physical landscape, of a particular type of inequality. This is an inequality originally structured on racial lines, but also one that used race as a way of determining what kinds of intimacy were allowed to count in structuring access to the global society. It is in fact this ability to create, valorize and ultimately rank various kinds of physical and psychic intimacy that framed what was understood as the global society in the colonial age. It is a fully embodied inequality; it relies on, reproduces, and cannot be separated from the particular constellation of habits, beliefs, mannerisms, performances, and ways of reading, navigating, and occupying physical and social space that have allowed it to emerge. The appeal to membership in a “new world society”, an appeal for recognition of shared status and mutual respect between civilized people, necessarily also involved the existence of a visible, recognizable, and empirically verifiable community that existed outside of this society. And it is the ability to claim the existence of a psychic intimacy built around notions of a shared humanity, which makes a moral appeal built on the ideal of equality possible while simultaneously reproducing the important status differentials that are at the root, historically and structurally, of the production of the idea of the global society. My investigation of Nairobi focuses on how liberal democratic ideals, in particular the ideas of freedom and equality and the rights discourse used to promote these ideals, are linked to how the myth of a “classless white society” was created through Nairobi’s landscape and taken-up in the postcolonial period by an African middle and upper class that inherited the social, political, and cultural habits, mannerisms, effects, affect, and lifestyles of this white society. In particular, I pay attention to how the promotion of liberal rights and democratic processes has resulted in the re-embedding of

 

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the socioeconomic and political inequalities at which they are ostensibly aimed. I argue that the reason for this lies in the relationship between how these inequalities have hardened into sociopolitical “truths” in the colonial (and postcolonial) era, and how the myth of a classless society organized around liberal democratic ideals but located in the upper reaches of a racially and socially stratified society continues to act as the source of knowledge about Kenya. There has been considerable attention paid to the role that the state should play in contemporary African society. This literature has often focused either on the ways the state’s police authority is exercised in order to preserve the power of an often rapacious political and economic elite, or on the inability of the state to meet its paternalistic duties vis-à-vis “the people”. The blame for these excesses and failures has been placed at the doorstep of both the colonial power, whose prior and current relationship to its former colony has been viewed almost exclusively in terms of its exploitation of human and natural resources, and of the nationalist political elite that inherited colonial administrative structures but failed (when they even tried) to improve socioeconomic conditions. While there has been considerable work done to problematize this narrative and to reveal the various ambiguities, disjunctures, and interruptions that actually structure the production of the state in Africa, the narrative of an overweening state power that has yet to be marshaled in the interests of the larger population continues to overwhelmingly frame both popular discourse and scholarly analysis. Part of this has to do with the antiimperialistic bent of much anthropological (and scholarly) interventions in the field. The state is a stand in for, usually misapplied, power. The aim of much of this scholarship, therefore, is to reveal the excesses that have come with the production and use of state power in both the colonial and postcolonial eras, and how these excesses have contributed to depressed socioeconomic conditions. Far more importantly, the state is also a stand in for the potential for effectively making use of the kinds of resources that it is supposedly able to marshal in pursuit of what have almost invariably been nefarious (or at best misguided) ends. We are, therefore, often drawn into a circular logic, where state power is derided while simultaneously remaining the object of a covetous gaze.

 

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Behind this gaze also lies the work of an African middle class that sees in its professional and educational background, in its cosmopolitan identity, and in its adherence to liberal democratic ideals, a claim to state power. The legitimacy of this claim emerges from membership in a global community structured around the ideal of a shared humanity, as well as from the claim of a uniqueness – a special status if you will – that is specifically about being “African”. This African identity is activated specifically to make claims on a global community, claims that are invariably about, and structured by, the processes through which the myth of a classless society is produced. When I call these Africans “middle class”, I am reproducing a folk category that is used to invoke this ideal of belonging to a classless society. Being middle class, belonging to the middle ground between “the people” and the “elite” and able to speak on behalf of the former while accepting the privileges and advantages that come with status yet somehow remaining uninfected by it, unlike the latter, is the myth, framed by liberal democratic ideals, which ensures the continued reproduction of colonial inequalities. Scholarly attention to the State in Africa has been structured by the specific beliefs and experiences of African scholars who are motivated by the desire to claim state power on behalf of a classless society that can never exist. In Kenya specifically, the ideological beliefs and intellectual output of a small group of scholars, lawyers, politicians, and other professionals and public intellectuals based in Nairobi, living cosmopolitan lifestyles and with transnational connections, who came together as a group in opposition to the governments of the first President Kenyatta and President Moi, have so saturated the theoretical field that liberal democratic ideals have essentially been removed from the political field. Liberal rights and democracy are unchallengeable, and these individuals, organized originally as a “reform movement”, stake a claim to legitimate state power that goes unchallenged in much of the scholarly literature on Kenya. My interest, in this dissertation, is in suggesting that the liberal democratic discourse that structures the discourse around the state in Kenya, and that, in particular, permeates the constitution making and implementation processes that have almost completely taken over the governance field, need to once again be opened up to politics rather than being used as a way of foreclosing the political question. I am interested in

 

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this precisely because it is this depoliticization that has ensured that the process through which the ideal of a classless society emerges is hidden from view. My dissertation aims, even if just in a limited way, to return this process to view, and to, therefore, challenge conventional wisdom about how power emerges and is put to use in Kenya, by whom, and on whose behalf. I want to move away from narratives that imagine the existence of some god-like figure somewhere pulling the strings on behalf of vested interests that are always hidden and despite their power can never actually be known. This is the only way to escape the pessimism that permeates so much writing, and so much of the public discourse and scholarship about Africa and about Kenya. It is only by letting go of this belief in god-like figures who can create, or have created, society in their image, be they colonialists, capitalists, foreign powers, or local despots, and with this the need to find ways of occupying this god position, just in the interest of good rather than evil, that we can make interventions in “Africa” and everything it acts as a stand-in for, that do something other than reproduce the particular hierarchies and social inequalities around which “Africa” was created. Almost counterintuitively, it is by surrendering to the forces and processes that structure society, not to the myth of a classless society or to the myth of a universal power but to the idea that we are the living embodiment of these processes and have no way of escaping the fact they structure us or how they do so, that we can begin to make use of them. Rather than spending our time reproducing histories and analysis that match-up with our personal and political beliefs and ideologies, we can, instead, re-direct energy towards illuminating the particular processes that allow us to act, in our different capacities, at different times, in different locations, and in different ways, in pursuit of specific socially and culturally structured ways. Such analysis is inherently political and anthropological, in that at its core it is interested not primarily in finding answers, even though those are important, but in finding ways of keeping the question open. City Making When we think of the city as landscape in the modern, late liberal era (and specifically here I am thinking of cities in the global south more generally and Africa in

 

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particular) two contradictory but intimately linked ideas come to mind. On the one hand, we think of the city through the lens of central planning, seeing it as the attempt, success, failure, or potential to organize a physical and a social landscape in order to achieve certain goals. Cities in this telling are the sites of prior, current, or future technical interventions designed with certain ideas or ideals, tied either to global capital (Sassen 2001) or “modern statecraft” (Scott 2006) in mind. Nairobi Metro 2030, the master plan for the development of the Nairobi metropolitan area, and a key project in the larger Kenya Vision 2030, Kenya’s long-term national planning development blueprint, is a case in point. Nairobi Metro 2030 is an attempt to remake Nairobi along neoliberal lines by focusing on the building of the kinds of modern infrastructure and amenities that both promise to catalyze economic growth by encouraging domestic and international flows of human, social, and financial capital, and that are also utilized in the consumption and performance of a middle class cosmopolitan consumer identity. Tied to this vision of the centrally planned city, is the view of the city as a site of unplanned and unregulated growth and human settlement. This unplanned growth has at times been thought of as the survival of a pre-modern past in, or the invasion of a rural sensibility into, a modern, urban, and cosmopolitan landscape. It has also, more recently, been thought of as the necessary by-product of global capitalist production (Davis 2006, Harvey 2006) and, more hopefully, as the site of “insurgent citizenship” (Holston 2009), new democratic formations (Chatterjee 2004), and new social and economic formations (Simone 2004, Guyer 2002) These two visions of the city – planned and unplanned – opposite (and sometimes opposing) sides of the same coin, however, rely on a way of theorizing and interacting with liberal democracy and capitalism that imagine both as primarily abstract concepts. This is not to say that the literature I have mentioned ignores the fact that both capitalism and liberal democracy are historical processes, or to claim that these scholars and theorists do not take into account the ways that capitalism and liberal democracy take on a particular shape and acquire particular content in different contexts and in response to differing and particular processes of localization and domestication. Rather, what I am suggesting is that efforts to theorize capitalism, liberalism, and democracy often proceed, even when they acknowledge that these concepts have a very particular historical

 

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provenance in a particular social and political context, as if the concepts themselves are detachable from these contexts. What I argue in what follows is that capitalism and liberal democracy need to be understood as the tools through which the particular social and physical landscape in which a contingent articulation between capitalism on one hand and liberalism and democracy on the other first emerged, has colonized the world and made it legible. This colonization is not a question of “power” or how that power is collected in the hands of “capitalists” or a political and economic “elite” who control the institutions of the state, and it is definitely not about speaking back to power, making claims on it, or discovering new ways of articulating claims outside of it. Instead, it is a question of understanding the very particular socio-historical process through which this concept of power emerges as a way of making the world legible and meaningful. Michel Foucault argues, “[P] ower is not something that is divided between those who have it and hold it exclusively, and those who do not have it and are subject to it. Power must, I think, be analyzed as something that functions only when it is part of a chain. It is never localized here or there, it is never in the hands of some, and it never appropriated in the way that wealth or a commodity can be appropriated. Power functions. Power is exercised through networks, and individuals do not simply circulate in those networks; they are in a position to both submit to and exercise this power. They are never the inert or consenting targets of power, they are always its relays. In other words, power passes through individuals. It is not applied to them.” (Foucault 2003: 29) And while this analysis of power mirrors, and articulates far more clearly than I can, my feelings about how to think about power, my project is different than Foucault’s. Like Foucault, I am interested in “subjugated knowledges”. Foucault describes his analytic process “as genealogical, [which] is certainly not a matter of contrasting the abstract unity of theory with the concrete multiplicity of the facts. … It is a way of playing local, discontinuous, disqualified, or nonlegitimized knowledges off against the unitary theoretical instance that claims to be able to filter them, organize them into a hierarchy, organize them in the name of a true body of knowledge, in the name of the rights of a science that is in the hands of the few.” (2003: 8-9) But while Foucault sees genealogy then as “a sort of attempt to desubjugate historical knowledges, to set them

 

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free, or in other words to enable them to oppose and struggle against the coercion of a unitary, formal, and scientific theoretical discourse ... [as a way therefore] to reactive local knowledges”, (2003: 10) I question how possible it is, from within knowledge, to desubjugate subjugated knowledges. This is primarily a question about scholars and about how the social and physical contexts from which they (we, I) emerge, frame not just how we know or what we know but also what we can do we that knowledge. It is a question, therefore, about whether this sense that it is possible to desubjugate subjugated knowledges is simply part of the same will to knowledge that produces unitary theory and the desire to organize illegitimate knowledge into a “unitary, formal, and scientific theoretical discourse.” While I attempt to extend Foucault’s mission “to understand power by looking at its extremities, at its outer limits at the point where it becomes capillary; in other words, to understand power in its most regional forms and institutions, and … to study power by looking, as it were, at its external face, at the point where it relates directly and immediately to what we might, very provisionally, call its object, its target, its field of application, or, in other words, the places where it implants itself and produces its real effects”, (2003: 27–28) I am interested less in discovering how freedom might escape this power in the form of desubjugated local and historical knowledges, than in understanding what freedom might be if we think of it as one of power’s “real effects”. I do this for two reasons. First, as mentioned above, I am sceptical of the idea that even if we actually could – as scholars who work in and through a particular social and physical landscape in which both knowledge and meaning have a specific (if not always necessarily stable) referent – desubjugate subjugated knowledges, that we could even recognize it if we did. Second, as a scholar of Africa, I have taken note of how “the people”, the subjects of these subjugated knowledges that we wish to free, are so often simply a way in which the anxieties of a knowledge-producing class are displaced onto a community who are, through this displacement, denied status in a specific socioeconomic and sociopolitical context and access to the opportunities and protections that come with that status. In other words, the process of locating “the people” and giving them a specific content in a particular social context, is the process through which status is produced and that status acquires symbolic value.

 

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Rather than striving to give freedom to the subjugated (or to their knowledge) it seems, therefore, that there is room for a form of scholarship that does not assume that it can, however earnestly or well-intentioned, give freedom a content that emerges out of understanding as somehow different the conditions in which these subjugated people find themselves. A project, instead, that seeks to understand how difference is constructed and that accepts that significant inequalities come with that difference, might free itself to look for freedom in that process of acceptance rather than in a self-serving denial. Individual moral action here is not a search for some ideally constructed “lost” society, but the acknowledgement, if you will, of an original sin, of the fact that we construct the society that oppresses. This is an image of freedom not as an escape but as a submission. My story of Nairobi, therefore, is a story of how a self-identified middle class is produced in Nairobi as “Kenyan” and as “African” as part of a historical process through which a specific anxiety that emerged in rural England about the form of the “knowable community” and specifically about status and value as they are constructed in relation to that community, was embedded through the social and physical landscape, and as that landscape. This process was capitalist precisely because it emerged out of the changing nature of social production in industrial England, and it was liberal and democratic because it did so by having as its founding myth the idea that it was a classless society. To understand this classless society in the ethnographic present, we must do so by approaching class here in a Bourdieurian sense. According to Bourdieu, “A class is defined as much by its being-perceived as by its being, by its consumption – which need not be conspicuous to be symbolic – as much as by its position in the relations of production (even if it is true that the latter governs the former). (1984: 483, emphases in the original) Bourdieu is interested in showing how the “taste” for cultural goods developed and displayed by certain consumers is not a function of an innate understanding of the quality or importance of a particular cultural good, but, rather, is closely linked to educational background and social origin. The consumption of specific cultural goods and the socially-recognized hierarchy through which these goods are categorized, “corresponds [to] a social hierarchy of the consumers … [which] predisposes tastes to function as markers of ‘class’.” (1984: 1–2) In fact, “The manner in which culture has

 

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been acquired lives on in the manner of using it: the importance attached to manners can be understood once it is seen that it is these imponderables of practice which distinguish the different – and ranked – modes of cultural acquisition, early or late, domestic or scholastic, and the classes of individuals which they characterize.” (1984: 2) What is important to note here is Bourdieu’s argument that taste functions as both as a marker of class and as an embodied practice through which a particular classificatory system, which acts both to create and signal the existence of social distinction, and to see that distinction as embodied by specific individuals who already belong to certain classes is reproduced. In other words, class is specifically a kind of embodied cultural practice in which class itself is produced and located in specific social and physical bodies and locations. “What is at stake in the struggles about the meaning of the social world is power over the classificatory schemes and systems which are the basis of the representations of the groups and therefore of their mobilization and demobilization.” (Bourdieu 1984: 479) And in fact, “Systems of classification would not be such a decisive object of struggle if they did not contribute to the existence of classes by enhancing the efficacy of the objective mechanisms with the reinforcement supplied by the representations structured in accordance with the classification.” (Bourdieu 1984: 480) So, returning to the Africans of Broken Hill, it is possible to see the imitation of European dress and mannerisms as both a way of claiming recognition as a member of a new world society, and a way of claiming the social and material rewards that come with being able to use that classificatory system themselves to produce social distinction. It is status that is being claimed here, membership in the social class that emerges at the top of the social hierarchy created through a classificatory system that gives that particular social class the “power over the classificatory schemes and systems which are the basis of the representations of the groups and therefore of their mobilization and demobilization.” (Bourdieu 1984: 479) Or as Bourdieu puts it, perhaps both more and less eloquently than I (with probably something lost in the translation from French), Those who classify themselves or others, by appropriating or classifying practices or properties that are classified and classifying, cannot be unaware that, through distinctive objects or practices in which their ‘powers’ are expressed and which, being appropriated by and  

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appropriate to classes, classify those who appropriate them, they classify themselves in the eyes of other classifying (but also classifiable) subjects, endowed with classificatory schemes analogous to those which enable them more or less adequately to anticipate their own classification. (1984: 482) The production of the “middle class” in Kenya has to be viewed in this light, as a category that represents an attempt to appropriate a classifying practice in the interests of claiming the power to classify that comes with a status linked both to their power to classify others and to be classified themselves vis-à-vis the other groups that are produced, in a particular hierarchy, by that classificatory system. The claims made by this “middle class” to this power to classify are made in terms of status tied to educational attainment, professional qualification, cosmopolitan identity, and belonging to a global society that simultaneously classifies and denies the importance of class. My analysis of this middle class, proceeds by investigating the constitutionmaking process in which this category of “middle class” was self-consciously invoked as a way of both claiming a class position, and with that the privilege to claim power over the classifying system in which “middle class” has a particular meaning, and of denying that class position, or at least of claiming that it is possible from this class position to repudiate class in the interests of creating a classless society. My analysis of the constitution-making process is, therefore, a story about ghosts. It is about what is denied and repudiated in the production of knowledge about Kenya and about how these elements continuously re-emerge, as ghosts, in this knowledge-making process. It is about how anxiety about the classificatory practice that creates a social hierarchy that is topped by a classless society is continuously displaced onto, and as the social groups that exist outside of this classless society. These groups are generally said to be the irruption of elements of an illiberal, undemocratic, uneducated, and pre-modern society, into the social, economic, and political fabric of a modern, liberal, and progressive Kenya. It is the fact of this classless society, and the process of its production, that worries me and that has informed my scholarly intervention. There is a denial of the possibility of alternate ways of making and thinking about the world that has emerged with and as the project of government reform and the constitution-making process that has been its principal strategy. Democracy has been emptied of its political content and its historical context in the attempt to produce this liberal vision of a classless society that  

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nevertheless is a classifying society. My intent here is to restore both this political content and historical context to the understanding of what “Kenyan” society is and how it is produced. Without it, we are left with an idea of society that emerges from “the positioning of a subject capable of performing intellectual operations which owe nothing to its involvement in social life.” (Lefort 1988: 12) What is at stake here, therefore, is the production of a society in which there is something actually at stake in the production of knowledge about that society. It is not enough to poll the “people” to discover their needs and desires precisely because the efforts to locate “the people” and to collect their views is caught up in a classificatory system through which a particular social hierarchy, and the access to opportunity that come with it, is continuously reproduced. My argument is that it is necessary to not just acknowledge one’s position of privilege, which is easy enough to do, but to do so by creating knowledge that actively seeks to abandon the subject position of the omniscient observer of social life. The question here is not how to locate “the people” but how to place ourselves in social life in a way where we are not just observing others whose lives are at stake but rather where our lives are equally at stake. I want to note that I am not suggesting that the members of this professional, educated, cosmopolitan “middle class” do not have a tremendous amount at stake in the processes of social production in which they are engaged, but rather that the classificatory process through which status is created, defined, and distributed, relies on a process of knowledge production through which anxiety about social place, about being and belonging, is transferred onto “the people” as part of a process through which social and economic capital is directed towards those who have the “power” to classify by occupying the position of the outside, neutral, observer of social life. Claude Lefort argues that “ascribing neutrality to the subject … prevents the subject from grasping the one thing that has been grasped in every human society, the one thing that gives it its status as human society: namely the difference between legitimacy and illegitimacy, between truth and lies, between authenticity and imposture, between the pursuit of power or of private interests and the pursuit of the common good.” (1988: 12) It is necessary, therefore, in the interest of pursuing the “common good” to discover and occupy a subject position where the possibility of such neutrality is actively denied.

 

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Knowledge, however, proceeds from the fiction of this neutral subject. Every attempt to counter the abstractions tied to knowledge production and to re-embed the process in the production of social life from which it emerges, is invariably confronted with the products of its own attempts to classify, and the hierarchies that emerge from the classificatory system in which it inheres. Added to that is the fact that the production of knowledge always proceeds from a starting point in an already existing classificatory system that it by necessity reproduces. The question, therefore, becomes how to preserve the ability to challenge the production of knowledge about a society while simultaneously recognizing that the challenge itself proceeds from a particular position in a classificatory system that will necessarily reproduce the hierarchies, entitlements, and inequalities of that system, just in new ways. For me, this means not just recognition of power but also, in what I recognize is anathema to most who struggle for “freedom”, submission to that power. This is for me what is at stake in my investigation of the constitution making and reform processes in Kenya. “Freedom” has acquired a particular content. It is tied to the creation of a liberal democratic system built around the idea that it is possible to locate the people and to channel their ideas into the creation of government institutions and structures. But these “people” are always made to speak in the language of liberal democracy, a language that is directly and heavily structured by the anxieties of the “middle class” about class position, status, and economic opportunity. Democracy, however, especially in the liberal guise through which it has conquered the world on the back of imperialism, has to be understood not as an abstract ideal but as a historical process that evolved alongside the disruptions in social life and custom that came with industrialization, and in particular with industrialization in rural England. And when seen as a historical process, it is possible to see its “revolutionary and unprecedented feature … [is that] the locus of power becomes an empty place. ... The exercise of power is subject to the procedures of political redistributions. It represents the outcome of a controlled contest with permanent rules. This phenomenon implies an institutionalization of conflict. The locus of power is an empty place, it cannot be occupied – it is such that no individual and no group can be consubstantial with it – and it cannot be represented” (Lefort 1988: 17, emphasis in the original)

 

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As an empty place, power in democracy does not so much lack an object, as much as it does ensure that the shape and content of that object is always open to and under challenge. Belonging to a democratic society means belonging to a society whose “sociological and historical elaboration [is] always bound up with ideological debate.” (Lefort 1988: 18) It is not just that no-one group can claim to speak on behalf of “the people”; it is that “the people” cannot ever exist as the source of a claim to legitimacy or to power. Uncertainty and anxiety about that uncertainty, especially anxiety about one’s claim to status, have to be brought to the surface and made the source of knowledge about society. Democracy “is instituted and sustained by the dissolution of the markers of certainty. It inaugurates a history in which people experience a fundamental indeterminacy as to the basis of power, law and knowledge, and as to the basis of relations betweel [sic] self and other, at every level of social life.” (Lefort 1988: 19, emphases in the original) Freedom, when understood as submission to democratic power, therefore, is a submission to uncertainty and an embodied (in social life) acknowledgement of the impossibility of the neutral and objective subject position. Plan of this Work In the first section of my dissertation, “The Letter of the Law”, I place the constitution-making project in historical context in order to provide a background to its claims of being a “middle class” project and to examine what exactly it is a “middle class” constitution-making process produces and on whose behalf. The first two chapters of this dissertation are aimed at this question. I begin by telling a history of Nairobi that allows us to understand the social context in which a particular type of liberal government, a particular kind of democratic process, and a particular kind of classdivided society set the stage for contemporary battles to define Kenya and to claim the right to govern it. My aim is to provide an anthropologically and ethnographically informed historical analysis of class as a political process. Chapter One, “Locating the Middle Class”, is an examination of how Nairobi’s particular history has led to the creation of a socio-physical landscape that structures the

 

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emergence of social class in Kenya. I argue that the interests, ideological beliefs, and socioeconomic and sociopolitical strategies of the reform movement are tied to the ways Nairobi is differentially accessed as a lived and symbolic space, and that the interests of the urban, cosmopolitan, professional middle class from which reform activists are drawn is shaped by the kinds of intimacies its members imagine themselves as being able to enter into and in what ways. In Chapter Two, “Kenya has its Owners”, I take aim at the “deep state” that is said to be the biggest threat to democracy in Kenya and to the establishment of the reform state. Rather than seeing it as the reactionary holdover of a corrupt and illiberal regime, I suggest that the “deep state” represents the survival of several historical processes through which Kenyan society and the Kenyan state were built. In particular I pay attention to the role that agricultural commodities play in structuring the relationship between government and a domestic elite, and suggest we should view the efforts made to support large-scale settler agriculture in Kenya dominated by aristocrats from England alongside changes to customary forms of authority occasioned by industrial capitalism in rural England. In Section Two of the dissertation, “The Spirit of the Law”, I move from an analysis of class formation in Kenya to an analysis of the particular ways in which a middle class constitution-making project, organized around liberal rights and the demand for government reform, emerged out of a professional middle class and became the language of governance. The chapters in this section also reveal how the process of writing a constitution necessarily reproduced the class distinctions that underlie the social inequalities that the constitution-making project is aimed at undermining. In Chapter Three, “Bourgeois Rights, Bourgeois Intimacies”, I show how the reform movement is better understood not as a mass movement as is the common case but as a small, closely-aligned group of individuals from a mostly cosmopolitan and professional background, who chose to focus on “human rights” and constitution-making because these reflected their class interests and represented their best chance to advance their particular political goals and ideological convictions in a context in which they could acquire support, both domestically and internationally, for their mission. By revealing the specific provenance of the constitution making I make the argument that the

 

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primary effect of the constitution making and reform processes is the re-embedding and re-legitimization of the particular classificatory structure that provides the reform activists with their social position and status. Chapter Four, “Creating the People”, examines the national civic education process, and the forums organized to collect public’s views prior to holding a delegates’ conference to draft an inclusive, “people-centered” constitution. These two processes together acted to create and locate a Kenyan public steeped in the language of human rights and dedicated to the practices of liberal democracy and the abstract ideals of reform. Having located “the people” and collected their views, it was possible to lay a claim to leadership of the domestic project of liberal democratic governance, and to stewardship of the ideals of a global humanity, and to enter into a competition with elected politicians for this role. And finally, in Chapter Five, “Juridical Divinations”, I take a close look at the role imagined for the Judiciary in the reform state and argue that in many ways, the Judiciary ended up being the real object of the reform process. This is because it is the place where the authority of the reform state is made visible, where the importance of reform and the status of reform activists are confirmed, and where challenges to that authority and that status can be contained.

 

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SECTION ONE: THE LETTER OF THE LAW The Setting There was something different about the violence that followed the disputed 2007 Kenyan Presidential elections. Watching it unfold from California, the images captured and reproduced in the national and international media, and the stories that came firsthand from family and friend and second or third-hand from colleagues and from the media seemed to be of a different order and scale than anything that I, and numerous others, understood as Kenyan. There was this sense that Kenya was poised between a descent into anarchy and the promise of a new dawn. Extraordinary intervention was necessary, therefore, to pull the country back from the precipice of disaster and to facilitate the birth of a new democratic order. The question is where did this narrative come from and what did it allow Kenya to emerge as? Electoral violence was nothing new in Kenya; neither were mass internal displacements nor the ethnic baiting that was used by politicians to incite both. The first two multi-party elections in Kenya after the repeal of Section 2A of the constitution, which had been used to make Kenya a one-party state by law, had been marked by extensive tribal clashes in most of the country’s provinces. And while the 2002 elections had been met with less violence, the pattern of violence was still maintained, albeit on a more limited scale. Perhaps it was the scale of violence that was new, or maybe even more likely, the fact that the capital, Nairobi, home to the majority of the political, professional, and intellectual classes, was front-and-center as what appeared to be a new violence emerged in the country. The violence was suddenly real and right on the doorsteps of policy makers, government officials, and professionals who were usually allowed to operate at a healthy remove from the messiness of the political. But then again violence was nothing new in Nairobi. Nor was the story of violence, not after the decade or so of brazen carjacking, violent crime, social disorder, and the almost complete collapse of government services that followed the imposition of structural adjustment programs in the late eighties and early nineties. Musambayi

 

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Katumanga, in analyzing the socioeconomic conditions in Nairobi in the period when the demands of political and economic liberalization began to structure the Kenyan political economy, forcing the Moi regime to regroup in an effort to maintain power, argues that “beleaguered regimes survive through a twin strategy. They privatize public violence and appropriate private violence. The net effect is the perversion of social order and the emergence of bandit economies. … The ruling elite responds to the possibility of losing power by using neo-patrimonial structures to selectively allocate public spaces to their cronies, thereby subverting social order and undermining democratisation, security and social harmony; this in turn spawns urban banditry. Urban banditry here denotes the unregulated deployment of instruments of coercion by ruling elite and various elements within the citizenry in bids to facilitate acquisition of economic benefits and political leverage.” (2005: 505) And again, most of the people who bore the brunt of the violence, whether from the police, vigilante groups, tribal gangs, or their neighbors, were an urban poor and a low-income working class that was already, and remained, hidden in plain sight. There was, for sure, however, in early 2008, a general panic, that led to an economic slowdown, the stockpiling of goods, and a run on currency, but this was as much cause as it was effect of this idea that Kenya stood both at a crossroads of some big change and on the brink of a major catastrophe. Add to that the fact that the panic was not contained to Kenya or to those within geographic proximity of the violence, or even to those who had more than a passing investment in the country, and it’s clear that something else, something more, was at stake. It was in this environment that an agreement was signed to create the Grand Coalition Government, an agreement that led, finally, to a new constitution becoming the law of the land. On August 27, 2010, a new constitution was promulgated by the President of Kenya at a public ceremony at Uhuru Park in Nairobi marked by much pomp and circumstance. The ceremony included attendance by several regional Heads of State, the taking of a new oath of allegiance by the President, Prime Minister, Vice President, and the Speaker of the National Assembly, and a 21-gun salute. The ceremony was also preceded by a full military procession along Uhuru Highway – Nairobi’s central traffic artery – the size and scope of which was last seen on December 12, 1964 when Kenya

 

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became a republic. The day was said to mark a new beginning for Kenya and the dawn of its second republic. The writing and promulgation of a new constitution for Kenya was largely the result of a constitutional reform process that had started as an anti-government and government reform movement in the late 1980s and gathered steam through much of the following decade. This movement was the incubator of a nascent civil society that came into its own in opposition to the repressive government of then President Daniel Moi, and the refuge of opposition politicians who had fallen out with the President and the ruling (and only official) party, the Kenya African National Union (KANU). The civil society members of the coalition saw themselves squeezed out of the process after the opposition politicians agreed on minimum reforms with Moi and the KANU government in order to contest the 1997 elections. For much of the next decade, these civil society activists, who saw themselves as the true organizers and owners of the reform movement, with a few exceptions, were pushed to the periphery of the constitution making process. All this changed in early 2008 when post-election violence, foreign mediation, and Western pressure, led to the creation of a Grand Coalition government that set the stage for these activists to re-enter the political field with the opportunity to re-constitute government along the lines established by the reform movement in the mid-1990s. On February 28, 2008, an agreement, titled Acting Together For Kenya – Agreement On The Principles Of Partnership Of The Coalition Government [hereafter The Agreement], was signed between Mwai Kibaki, the incumbent President and presidential candidate of the Party of National Unity, and Raila Odinga, the presidential candidate of the opposition Orange Democratic Movement. With this agreement, a coalition government was created to govern Kenya, ending the political crisis that had plunged Kenya into violence ever since the disputed results of the 2007 presidential election were announced with Kibaki emerging the winner. This agreement was subsequently entrenched in the constitution on March 18, 2008 through the National Reconciliation and Accord Act [hereafter National Accord]. In addition, on February 1, 2008, the parties agreed to deal with long-term issues that were considered the

 

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“underlying causes of the prevailing social tensions, instability and cycle of violence”, one of which was constitutional reform. One of the tasks that the coalition government was created to accomplish was to complete the constitutional review process and to create a new constitution for Kenya. That this was one of the requirements of the National Accord, and made into law through the Constitution of Kenya Review Act 2008, represented a victory for the elements of civil society that had made the constitution the lynchpin of their attempts to reform government. It is, I argue, the post-election violence, and the threat of more violence, which gave the constitution life and provided an opportunity for the reform movement to make a grab for political power. The reform movement has over time, and through the civic education and CKRC processes, come to outline the set of problems that a Kenyan government is to be constituted to confront. In particular, there is the idea that many of the country’s socioeconomic and political problems arise out of the fact that power in Kenya is highly centralized – a centralization that proceeds unbroken from colonial times –, that it is channeled through national government structures – in particular the institution of the Executive –, that it is in the control of a political elite that uses government – in a transparently recognizable and understandable, if nevertheless always hidden, manner – to accumulate and direct national resources, and that is dominated in the postindependence era by a politics of ethnicity. (Mutua 2008, Mutunga 1999, Murungi 1995) What this narrative ignores is the evidence that the Kenyan state, in both its colonial and postcolonial guises, has been largely unable to impose centralized authority at the local level. Berman and Lonsdale, when discussing the conquest state in Kenya argue that while “[public] power had to be concentrated in official hands, above society and yet socially influential rather than merely forceful [and while] allies had to be made agents, wielding a locally legitimate authority that was nonetheless, in the last instance, delegated from the centre [,] the British never mastered this alchemy of rule, as rulers never do, but it was not for want of trying.” (1992: 31) The narrative also ignores that, to the extent national government policies have been effected, these policies have always have always had to give way to a re-imagination of their content, purposes, and effects mediated by local social, political, and economic needs. In fact, the civic education and

 

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CKRC processes suggest the story of national government power has been far more effectively dispersed around the country than have the actual power of national government. In Men Who Ruled Kenya: the Kenya Administration, 1892 – 1963, Charles Chenevix Trench’s history of the Kenyan colonial administration (1993), he reveals how much the administration of the Kenya colony relied on the skills, personalities, and abilities of the men who administered Kenya on behalf of the British colonial office. The colonial administration was also not just focused on matters of the state or other large geo-political issues; a lot of the time administrators were called on to mediate and settle small, local disputes that influenced how a variety of parties – the natives, the settlers, other administrative officials – viewed the legitimacy and efficacy of the colonial administration. These administrators often utilized governance strategies that were contradictory, changeable, and in conflict with official positions. They also had to deal with the legacy of previous attempts to administer an area or an issue. The colonial administration of Kenya, therefore, cannot be understood as just one thing, acting in a top-down manner, and appearing consistently across Kenya. Instead, it is necessary to see colonial government as a set of often contradictory and conflicting ideas, strategies and techniques, structured around the ability and desire of administrators to effect policy from the Colonial office and from their superiors, and often completely reliant on the vagaries of the local situation and the ability to craft the kinds of social interactions and intimate relationships that would allow them to be effective at their positions, whatever it is they saw those positions as. The Kenyatta regime, while adopting and adapting many colonial government institutions to exercise control through government, directed this control mostly at keeping in check challenges to Kenyatta’s authority from within the political classes rather than aiming to directly impact or organize activities or outcomes at a local level. Kenyatta ruled through the government but used a combination of the civil service rather and the electoral process to preserve his authority. Bienen argues that Kenyatta ruled through a clique of individuals personally connected to him either by blood or effect and “through a Civil Service he inherited and which was a much more docile instrument than party.” (1974: 77) While “Elections … served as the battleground for intra-elite

 

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competition and as the connecting link between elite and mass … [providing] for some representation by elites of mass demands and …channels for political participation without altering the basic relations of elites and masses,” (1974: 112) for Kenyatta getting involved “in KANU politics would [have meant] vying with individuals in their own bailiwicks and possibly losing at the district levels. Kenyatta intervened in extreme circumstances … [but usually] let factional politics take its course in the districts or he let his lieutenants at the center line up with various factions.” (1974: 80) By maintaining actual distance from the local processes through which social, economic, and political capital was accumulated and distributed, Kenyatta could maintain the fiction that central government power was related to control of the party mechanism and the electoral process while effectively using the civil service to organize the distribution of resources on a national level by constraining and containing actual political population by the masses. While the electoral process becomes a battleground for intra-elite competition, competition between individuals and competition for resources at the local level takes place on an arena created through civil service practices: “[The] Civil Service is given the task of channeling [demands on central resources] and at the same time is the critical institution of social control. … When economic and social demands cannot be met, the Civil Service is given the mission of restricting political formations which push these demands upwards. Or when political competition itself threatens stability, the Civil Service imposes limits on it. At the same time, the Civil Service gives influence to demands by organizing them for those who become constituents. … Frequently, the civil servants are the only ones in Kenya who can organize demands for people in the rural areas and make them felt at higher levels. The Civil Service becomes a vehicle for political participation as it communicates views and makes rural interests felt at the center through its mechanisms.” (Bienen 1974: 63-64) The situation as described by Bienen remains true today. In most parts of the country, the only interactions possible with government and government officers are with local officials of the provincial who organize, restrict, and facilitate access to government resources including government personnel. The same holds true in Nairobi, except here it with government ministries that most people have regular contact. But these are not the ministries of ministers as officials of national government, but rather of interactions between career civil servants and the local public, which remain, if not necessarily out of the view, definitely out of the discourse of government that emerges in elite circles and  

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amongst the professional managerial and middle classes. The ministers are contained in their own particular social and patronage networks but, and perhaps because of this, can only rarely and even then only in the most indirect ways influence the interactions that take place on the ground between the officials in those ministries and the individuals who have to seek their services and intercessions. Civil society and the reform movement aimed to change this interaction by removing the provincial administration and devolving power through new constituent assemblies at the county level. However, the provincial government system remains entrenched, and the push back against attempts to disband it probably means that many of the officials will continue to serve similar roles in new capacities. This is precisely because the civil service is the legitimate and most organic vehicle for making demands of government at the local level, both in Nairobi and in the rest of the country. However, because the professional managerial and middle classes can organize accumulation and distribution of capital through social networks that either deny or regularly or completely avoid the circuits of government patronage, the focus of these classes remains on reforming an electoral system that only partially influences distributive practices, and even then primarily at the elite level, or on reforming a government practice that is the only existing arena made available to political action by the masses. “The people” that are the subjects of the constitution-making process are effectively denied an arena for political action through the focus on electoral democracy and the institutionalization of liberal ideas about democracy, justice, and the rule of law which are often even in conflict with the promotion of electoral democracy and the attempt to insert “the people” as anything other than a theoretical device, into the management of governmental efforts to distribute resources. It is also instructive to look at the Kenya’s new constitution in comparison to the constitution it repealed and replaced. Kenya’s independence constitution was negotiated at three separate conferences held in 1960, 1962, and 1963 at Lancaster House in London. These conferences were used to negotiate the settlement between the various political groupings that allowed for Kenya’s independence to proceed. This independence constitution was an extremely complicated document meant to ensure that the interests of these diverse groups were represented and protected.

 

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This constitution lasted exactly one year before it was amended almost beyond all recognition starting in 1964 when Kenya became a republic. The first amendment to the constitution created the office of the President and transferred several powers to this office that had previously been shared between the Prime Minister as Head of Government and the Governor General, representing the Queen, as Head of State. Subsequent amendments to the constitution served to consolidate power in the office of the President at the expense of the Legislature and of a devolved system of government (majimbo) that had been created to ensure that both government power and government resources were shared equally by the different regions of the country and the communities therein. These amendments are now commonly understood as the first steps towards the creation of an autocratic and illegitimate central government structure that illegally made use of the power consolidated in the office of the President to divert resources away from “the people” and toward an economic and political elite linked in various patronage networks, and to stifle attempts to check this power either through constitutional controls or through political opposition. While the consolidation of power in the office of the President has been linked to the centralization of government authority, this “centre” is often treated as if it were either an abstract quality or something tied primarily to the power consolidated in the Presidency. However, it is clear that the “centre” has a regional and geographical component that makes Nairobi, the seat of central government and the site of a particular array of material practices linked to governance, key to understanding how power is thought, made, accessed, and activated in Kenya. Consolidating power in the office of the President reflects a structuring of power that reveals the particular hierarchies around which Kenya was built. Therefore, rather than thinking of this first set of amendments to the independence constitution as simply a grab for power by Kenyatta (who became the first President of Kenya) and his allies, it is important to stop and think about what made these amendments possible in the first place and what this process of amending the constitution revealed about what is meaningful and what has value in Kenya. I am suggesting that if our aim is to understand the socioeconomic inequalities that exist in the country, rather than assuming that it is the breakdown of the process of transforming Kenya into a proper liberal democratic state that has hindered social and

 

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economic development, it is more important to look at the social and cultural conditions that made particular processes of consolidating power possible. The constitution and the constitution-making process, provide a crucial arena for such an investigation. When the constitution is discussed in the Kenya context, and very much in keeping with larger liberal democratic discourse about the purpose of constitutions, it is often seen as a blueprint that transparently links liberal democratic ideals and liberal ideas about how the state should be structured with the production of a modern and progressive liberal society. The protection of liberal rights and the promotion of formal democracy are seen as necessary steps in the creation of a modern nation-state and the development of a modern economy that is capable of delivering socioeconomic development to the country. Ever since the promulgation of the new constitution in August 2010, the idea of the constitution has been used as a challenge to and claim on government authority, as a repudiation of political activity, and as the moving target that is the ostensive aim of all government policy. Since the constitution acts in the interest of “the people” of Kenya, any activity that is deemed “unconstitutional” – not in keeping with the letter, spirit, and intent of the document – is cast as prima facie evidence of “wrong”. This makes the constitution the ultimate moral arbiter and the ability to speak for the constitution, the ultimate source of power in a new moral value system. It also begs the question of who gets to decide what is in keeping with the letter, spirit, and intent of the constitution, and, who, therefore, benefits from this value system? What are those benefits? How are they distributed? The first two chapters of this dissertation are aimed at this set of questions. I begin by telling a history of Nairobi that allows us to understand the social context in which a particular type of liberal government, a particular kind of democratic process, and a particular kind of class-divided society set the stage for contemporary battles to define Kenya and to claim the right to govern it. My aim is to provide an anthropologically and ethnographically informed historical analysis of class as a political process. Since constitution making in Kenya is narrated as a middle class project aimed at creating a government of and for the people as opposed to a government of and for the

 

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elite, it is necessary to understand how “middle class” emerges as the location for this particular type of governance project. To do so means looking beyond common-sense understandings of the category and conceptualizing this middle class as an ethnographic object that actively accounts for how history continues to shape it. This middle class is the product of a particular classificatory system, built around race, and meant to allow a transplanted aristocracy from England to confront anxieties about life in a rapidly transforming society where old markers of certainty were being upended. They did so by seeking government protection from challenges to their status arising out of a growing global capitalist market system built around industrialization, manufacturing, and finance. The Africans who inherited state power upon independence, had emerged, prior to independence, as the middle-ground between the demands of a restive, faceless African population, and the interests of the classificatory system the settlers embedded in the Kenyan social and physical landscape in their attempt to maintain their status and its spoils. These Africans sought to perform their global citizenship, and to claim with it equal rights to the spoils of classification and control, by adopting the habits, mannerisms, language, and lifestyles of this settler community but doing so in a distinctly “African” way. After independence and since, this African “middle class” has sought to occupy the social and physical locations from which status was produced – schools, sports clubs, shops, hotels, houses, neighborhoods – and to claim, from these locations, if not necessarily because of them, the right and ability to define, structure, and administer “Kenyan” society.

 

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CHAPTER ONE: LOCATING THE MIDDLE CLASS Introduction In this chapter, I investigate the various ways in which the reform project is translated into a series of socio-material practices and processes. I look at the places where reformers can be accessed – the spaces in which they meet and work as well as where they live and socialize – as well as the ways in which reformers come into contact with the people that they claim to represent. I do so by focusing my attention on Nairobi and examining its history as an administrative center and as the origin of a Kenyan society that was defined by race and the creation of class distinctions. These status-based distinctions were embodied according to how different individuals and communities occupied and made sense of a symbolically organized social and physical space. I describe how Nairobi itself is differentially accessed and navigated by the people who live there and pay attention to how this differential access sets limits to the kinds of relationships that reformers can make – in terms of the nature, purpose, scope, intensity and even the simple possibility of any potential relationship – and the ways in which this is reflected in the aims of reform and the strategies pursued by reformers. Nairobi is the not just Kenya’s capital, the seat of national government, and a cosmopolitan city that is the home of numerous international corporations and nongovernmental organizations, it is also the central location for building, performing, and reproducing the modern, urban, educated, and professional, middle-class lives that undergird the reform movement and that help determine its strategies and its priorities. This Nairobi-based middle class is also noteworthy for its embrace of liberal ideology and the ideals of a classless society in spite of the large divisions in terms of opportunity that exist between those, relatively few, members who populate its upper reaches and live and work in an intimate and largely impenetrable circle of schools, sports clubs, social gatherings, and family affairs, and those who aspire to that position and attempt to perform that belonging and the status that it represents. For the most part, Nairobi is a city of divisions, and the divisions are not just along socioeconomic, racial and ethnic lines, but trace decisions and ideas about where

 

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and how intimacy can exist and how it should look and be performed. The cosmopolitan, professional, middle-class lifestyles, performances, and aspirations that mark so much of how Nairobi feels and looks, work to ensure that only certain relationships and interactions can be considered socially valuable. It is this value that is indexed by the middle class, inscribed in the physical landscape, including through plans to redesign, update, and develop the city, and that is used to mark belonging to a Kenyan society. Party Politics My friend Aurelius called and asked me to attend a party with him. I had assumed he was coming from work, but he must have gone home to change, as he was dressed casually in jeans and a polo shirt when he picked me up, not the dress pants and button-down shirt, sans tie, he’d have been wearing after a regular Saturday morning in the office. It was a beautiful Nairobi day. It was bright out, and hot, and as long as you didn’t have to linger too long in the direct sunlight, it was a day to be enjoyed. Good day for an afternoon nap too but I didn’t say this to O. R., I’m sure he knew I was thinking it, but after six straight days in an office, I guessed that wasn’t the change of pace he was looking for. We had always called Aurelius, O. R., even though no one I asked seemed to know what the initials stood for. It was years before I realized that they didn’t stand for anything, and that Aurelius was his first name. It wasn’t that he didn’t like the name, he just treated it like a distant cousin – family but not that important in his day-to-day life. As we drove down State House Road and continued onto Dennis Pritt Road, we looked around for the address we had been given. When I say address, however, what I am in reality referring to is the general, and simultaneously specific, directions you receive to any location in Nairobi. I say that the directions are general because when you get directions in Nairobi, you are first asked if you know where a certain road is, or a certain hotel, or a police station, or a bar or any of a number of places where you and the person who was giving you directions had, could have, or should have as a common point of reference. That directions to a location varied by person, or even between tellings by

 

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the same person, pointed to the ways that specific intimacies, common touchstones and shared experiences provided physical as well as symbolic shape to the city. It is for this reason that I say directions are very specific; they call up particular experiences, places, and ways of living and in so doing, make them real, and give them meaning. After Aurelius and I confirmed we were in the right location (again the direction only hinted at rather than provided any kind of certainty about out destination), and after the security guards confirmed that it was permissible to treat that location as the right location – which took a lot of conferring, shuffling of papers, making an unanswered phone call, and carefully studying us and the car we were in – we were allowed in, carefully parked, remembered we needed to bring a drink, carefully reversed, excused ourselves and went in search of a place to buy some liquor. The party was one in a series of get-togethers that was organized on an ongoing basis by a tight-knit group of friends and who each took a turn hosting an event. This current iteration was at the home of a successful lawyer. Its location on Dennis Pritt Road already talked of a certain level of affluence, yet tucked away in a small gated community made up not of apartment buildings but of self-contained two-story houses with modern amenities and a carefully-maintained garden landscape – with a cobbled footpath lined with flowers and greenery arranged so as to look unplanned – it stood out from the apartment complexes that dotted both Dennis Pritt Road and the surrounding areas. Of course you couldn’t tell any of this from outside the gates. This was a display of success that was hidden away. If you knew where to look – and having an invite to the party indicated that you were being invited to do exactly that – it was clear that what was on display were not just the trappings of a cosmopolitan, middle-class life, but also the particular achievement of a lifestyle that many in the room had intimate knowledge of, recognized, and sought to inhabit as something that by right belonged to them. This home spoke of an uppermiddle class upbringing rather than of recently acquired wealth. The house itself was beautiful, tastefully appointed, with a full bar stocked with several carefully selected and carefully expensive liquors, taking pride of place opposite the front door and under the winding staircase right in the middle of the house, between the dining area and the living room. The bar is a symbol of this upper middle-class

 

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lifestyle and of the good life that comes with it, and of achievement, and the liquor that is used to mark and celebrate it. My father had one put into our new house when I was a child. He was not the only one that did. From the flat screen TV that occupied one corner of the living room, to the music videos on rotation on one of DSTV’s (a South African satellite television provider) many music channels, the glass fixtures, the leather couches, the conversations, the choice of language, the accents, the metaphors in use, and the content and purpose of the exchanges, it was clear that the guests had either grown up in the kind of comfort and with the kind of entitlement that was on display or that they were passing as a member of that group. It is the relationship between belonging to this group and passing as a member of it that is at the foreground of my discussion of middle class identity in Kenya. Belonging to the group means belonging to a certain Nairobi – an array and a network of common, shared, or overlapping experiences, backgrounds, intimacies, symbolic spaces, and physical locations. Passing, however, does not mean simply copying or actively trying to fit in by aping the group’s habits, desires, or interests. Rather, I use passing here, first, as a way of placing special emphasis on the performativity tied to middle class identity in Nairobi, and second, in order to focus in on what is often left unsaid or what goes unnoticed when we think about the creation of a middle class – that middle class identity is tied to specific types of encounters and interactions, in specific types of locations, with specific types of people. Being middle class means belonging to an active process of subjectification that structures not just what is performed as middle class identity, or how it is performed, but also what is made through this performance, and how what is made is distributed and policed. The fact that I was a PhD student from Stanford had somehow made it to the party before me. Interesting seeing that O.R. and I walked in at the same time, and I was still being convinced to attend the party as recently as 45 seconds prior. I knew, of course, that Stanford and PhD would be attached to my name as I reconnected myself to Nairobi and went about conducting my fieldwork. They identified me to my informants both as a researcher and as a particular type of Kenyan. There was a little polite interest as to what

 

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my research was about, some more polite than interest, and in reality, now that I had been properly identified and catalogued, I could mostly be ignored. I looked around and made myself a plate of food before I followed O.R. towards the bar. Most of the men were gathered around it, and while there were women there too, it was a particular kind of space – loud and boisterous with laughter punching at the air between sips, and sex and national politics, but mostly sex, dominating the conversation. As I had already discovered by then, sex seemed to always be on the table in Kenya. Stories of intimacies gone good and bad were exchanged, and it was remarkable to me how closely they resembled those I read in newspapers and the magazines. I imagined that it was definitely possible that sexual interactions in Nairobi closely and generally followed the pattern that seemed to re-occur in almost all these stories, and in many ways I had seen as much. But, it was also possible that the stories in the newspapers and news magazines, which often relied on archetypes, broad generalizations, and their own classic narrative form, ended-up providing the structure through which stories about sex could be shared and made sense of. So, while certain stories appeared to be broadly accurate reflections of an existing state of affairs, this was primarily because they acted as a site for the cultural production of certain ideas about society as well as a way to act-out specific positions within that society. These stories, therefore, can be thought of more accurately as a way through which questions and anxieties about social position were given discursive life. Part of the performance of professional middle class identity was the reproduction of certain ways of talking about sex that were ways of also giving voice to an anxiety about one’s location relative to the production of this middle-class As I stood by the bar, the hostess, perhaps imagining that there might be some kind of kindred bond between academics, introduced to a lecturer at the University of Nairobi who was sitting at the far right of the bar sipping whiskey as he animatedly carried on a conversation with a fellow standing behind the bar. After the introduction, as conversations with academics are wont to do, the conversation quickly pivoted to a discussion about my research. Ours was not a conversation that began with pleasantries but with a command for me to explain my research. Of course it wasn’t really couched as a command, but as he swiveled on his stool to face me, drink in hard, and I stood, in an

 

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unfamiliar place surrounded by unfamiliar people and surprised both by his immediate focus both on my school, my program, and my reason for being in the country, the universe of possibilities from which I could draw my response seemed to be immediately circumscribed. My answer was stammering at best. Seeing how much my research question has evolved over the course of my research, I can’t remember quite what I offered-up, but it had to do with the overarching subject of my research – constitutional reform – and the question of governance. My explanation was interrupted, loudly, as he remarked that, “all Kenyans know how they want to be governed.” He then offered up a couple more pearls of wisdom that basically suggested that my research was besides the point and not particularly interesting and since this was not that far removed from my then current feelings on the topic, I was actually a little interested in hearing more. But with his point made, he swiveled away from me in his bar stool and started engaging in another conversation. I stood there and listened politely for a few moments as if an attempt was being made to include me in their conversation before turning around and acting as if someone had motioned me over, made my way to the sitting room to have a seat. The lecturer’s comment stuck with me. As did the location in which it was offered and the certainty with which it was uttered. Was it true? Do all Kenyans know how they want to be governed? The statement had the benefit of sounding extremely obvious and of making the process of constituting government and of constitutionmaking appear to be a fairly transparent one: you went to the people, asked them how they wanted to be governed, and created a government structure that channeled those ideas and opinions as effectively as possible. In fact, this was essentially how the constitution-making process was sold by those in the business of government reform, and this narrative about the transparency of the process, its necessity, and the overweening positivity with which it was imbued, was repeated to me, almost ad nauseam, in the course of the seventeen months I was in Kenya. Contemplated through this narrative, my research did seem superfluous at best; an unnecessary addendum to a process that had already been thought through and largely completed by those who had been in the trenches doing the dirty work that ensured that a new constitution was created that reflected the people’s interests.

 

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Still, I was left feeling uneasy about the whole interaction. It wasn’t just that I was unhappy about having my research belittled and dismissed – although trust me, I was – I couldn’t get past the particular socio-geographic and socio-economic location in which this exchange happened and the sense that location could not itself be dismissed if one wanted to understand what was at stake in constitution-making. The majority of my interviews and interactions with the civil society activists behind constitution making and government reform were conducted in similar physical and social contexts. If it wasn’t in large homes sitting behind fences and gates or in walled-off complexes in up-market neighborhoods, it was in offices sitting behind fences and gates and walls in up-market neighborhoods, or in five-star hotels and the conference facilities attached to them, or in cafés and restaurants in up-market shopping complexes. It is necessary to understand the locations in which I found and interacted with reform activists as particular kinds of social spaces. Their physical location ensures that certain kinds of interactions become normalized, and with this that certain kinds of divisions between people become natural, if not necessarily acceptable. Categories of people are created by space, and the links between individuals become interactions both across and within the different boundaries that categorize people. Space, therefore is a knowledge-making tool; it allows us to make meaning of and in our lives by creating boundaries between different categories. These boundaries are then reproduced as knowledge, as are the specific socio-historical conditions that give birth to its production. Nairobi has a very specific history, and this history is a history of the production of specific kinds of divisions between different categories of people. This history is tied, first and foremost, to the production of government in Kenya, and to the specific purposes for which government was intended. This was primarily the administration of the Kenyan territory in the interests of, at different times, in different combinations, and with changing and often contradictory emphases, a settler elite, a metropolitan government based in England, metropolitan finance, and liberal ideology. It is, therefore, impossible to divorce the idea and practice of government in Kenya from the production of Nairobi.

 

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Making Nairobi, Making Kenya Nairobi started off as a railway depot on the Uganda Railroad being built between Mombasa and Kisumu. It was a “convenient stopping place en route to Uganda” of a railroad that was intended “to facilitate access to the highly regarded political kingdom of Buganda, with which missionaries had maintained contact for a number of years.” (Werlin 1974: 38) “Uganda had the double attraction of being the source of the Nile and of having … a political system which … bore sufficient resemblance to European institutions to invite expectations of rapid conversion to Christianity and modern commerce.” (Kyle 1999: 5) “The Suez Canal route [through Egypt] was the lifeline of the Empire … Whoever controlled the headwaters of the Nile … controlled Egypt, and … so over, Uganda, the most prosperous region in East Africa, Britain declared a protectorate maintained by a few hundred Nubian soldiers.” (Trench 1993: 1) Because of the difficulty in supplying these soldiers up the Nile, it was decided to use the “slavers’ overland route from Mombasa,” which would also discourage and suppress the slave trade, “the only other consistent British aim in East Africa.” (Trench 1993: 1) “The site of the future capital [was] selected solely to suit the purposes of railway administration, since it was a large flat area at the entrance to the Highlands,” (Kyle 1999: 6) and a convenient and necessary staging place before the most difficult section of the railway’s construction, into and through the highlands of Kenya and down into and then up out of the Rift Valley. “In picking a site no regard had been paid to such factors as its inadequate drainage,” (Kyle 1999: 6) something that remains a central feature of the city during the rainy season when many roads become impassable either by car or by foot, but which, in spite of both private and public grumblings that suggest as much, is not a sign of a corrupt, inefficient, and ineffective government’s inability to design roads with proper drainage. In fact, the members of the House of Commons were told, “that the Protectorate’s capital would ‘have to be removed from a site which ought never to have been chosen’1.” (Kyle 1999: 6) In fact, the “town’s early day… were difficult, with several severe plague attacks and the persistence of malaria, brought on by [the poor]                                                                                                                 1 Quoting Herbert Samuel, a British Member of Parliament speaking in the House of Commons on December 11, 1902.  

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drainage, lack of water … and improper sanitation arrangements.” (Werlin 1974: 38) “Nairobi was reluctantly accepted as the official capital of Kenya. Its position … [only] firmly established during the First World War when it was used as a military base in the Tanganyikan campaign against the Germans.” (Werlin 1974: 38) What is unclear from the literature, or at least never explicitly discussed in histories of Nairobi, or those of Kenya that focus on the role of the capital city in the development and administration of the country, is why this particular location, which offered far more in the way of difficulties than it did amenities became the administrative capital of Kenya. It is my argument that answering this question provides a necessary insight into the type of colony Kenya became, and with that, vital insight into the administration and the concomitant production of the Kenyan nation-state in the ethnographic present. Werlin tell us that at the time of its establishment Nairobi “was obviously a frontier town.” (1974: 38) It attracted an assortment of wanderers, explorers, hunters, government officials, and settlers from Europe and South Africa, as well as a large (relative to the size of the European population) Indian population made up of indentured laborers as well as clerks, artisans, and shopkeepers. (Kennedy 1987) Kennedy describes Kenya as “little more than a trader’s and outcast’s frontier during its first undistinguished decade under British suzerainty.” (1987: 21) Nairobi, however, was also a frontier town for its African population, including both those who lived in the areas surrounding the new settlement, and those who were recruited to work in a number of menial jobs on the railroad and in the settlement itself. Like many urban settlements, therefore, the choice and then development of Nairobi, had as much to do with happenstance as anything else. However, the sheer difficulty attendant to living in this particular settlement suggests that its growth, in spite of rather than because of its natural amenities had, at least partly, to do with its particular attributes as a frontier town. Social, political, and economic rules were not clearly established in Nairobi and as such, this particular urban settlement became the raw material through which the rules, structures, and ideas that came to frame the development of the Kenya colony (and subsequent to that, independent Kenya) were fought out.

 

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The decision to invite European settlers into Kenya was made belatedly, as a way of making the railroad, and then the Protectorate and ultimately the Colony that were declared in order to channel resources (in the form of officials, capital, grants-in-aid and loans) towards its maintenance, pay for themselves. The British government, after building the railroad for a little under £8 million and discovering that the economic benefits of opening up the interior of East Africa were not as great as expected (Kyle 1999), was not particularly interested in providing more money for its upkeep, especially given its the extensive coverage the troubles2 plaguing the building of the railroad had received in the British Parliament and the British press. Several ideas were suggested in an effort to make the protectorate profitable, including opening up the interior for Indian colonization, and the establishment of a Jewish homeland, but eventually a decision was made to invite European settlers and to provide them with land grants in the highlands of what became Kenya and the Rift Valley. While the “first settlers were a very mixed crowd … [only a] few had enough capital and agricultural skills to make good.” (Kyle 1999: 7) This resulted in a small group of settlers, aristocrats like Hugh Cholmondeley, third Baron Delamere, who had political connections back in Britain, as well as the necessary capital to settle large ranches and farms and turn them into going concerns, having an outsized influence on settler society, economics, and politics, as well as allowing the settlers, as a group, to have an outsized influence in the country’s administration vis-à-vis the British government. It has been well documented that the European population of colonial Kenya was far from homogeneous. (Kyle 1999, Trench 1993, Trzebinski 1985) In fact there was often significant antipathy between the settlers, especially those who came to be known as the “Happy Valley set” and the provincial administration made up primarily (at least early on) of individuals who had significant experience in Africa or in administration in the colonies, men like Frank Hall and John Ainsworth, and were only very rarely products of the British public school system and of Oxford and Cambridge Universities. (Trench 1993) These officials were not well remunerated for their work, including often                                                                                                                 2 Not least of which were the man-eating lions of the Tsavo, which highlighted the tremendous loss of life associated with the building of the railway line.  

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being unable to afford to have their wives or families join them in the field, and often clashed with the settlers who were unhappy with the paternalistic attitude they adopted towards an African population with whom the provincial administration had much greater and sustained contact. In contrast, the settlers “were ‘members of the English and AngloIrish nobility and gentry’, and after 1910 higher middle class and middle class settlers.” (Gillette 1990: 48, emphasis in the original) They comprised individuals like Lord Delamere, who attended Eton, “and shortly after he had settled, his brothers-in-law Galbraith and Berkeley, sons of the Earl of Enniskillen followed. Lord and Lady Cranworth arrived in 1906 and Lord Cranworth enthusiastically wrote home to many of his old Etonian friends to join him. Nairobi was soon to have its “Eton old boysdinners.” (Gillette 1990: 48) In addition, it is important to take note of another group who had a very strong influence on the development of the colonial state in Kenya, the members of the British civil service employed by the Colonial Office (CO), the department of state, based in London, which had supervisory power over the government of the East African Protectorate and subsequent Kenya Colony that was based in Nairobi. This included men like Herbert Read, Frederick Butler, Henry Batterbee, A. C. Cosmo Parkinson, and W. Cecil Bottomley, all of whom played “a part in part in helping to shape the CO’s stance towards Kenya [and mostly] came from a middle-class establishment background. All, save Bottomley, took degrees at Oxford [and] as a group their academic records were truly exceptional, probably surpassed by few other units in the British civil service at the time. … Read was the only official from what might be termed a commercial or petit bourgeois background.” (Maxon 1993: 21) For the Colonial Office, “the maintenance of law and order was far more important than economic development or social engineering. This emphasis on law-and-order colonialism was tinged with the doctrine of trusteeship. In theory, this meant that the CO sought to exercise its supervision on behalf of the indigenous population of the empire.” (Maxon 1993: 20) This put the CO in direct competition with the settlers who were interested in using the colonial government to establish and support their interests, especially given the tremendous financial losses suffered by the settlers as they attempted to establish profitable farming enterprises. The settlers pushed for land grants, for grants-in-aid, for

 

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special loan terms, for the prohibition of land grants or sale to the Indian population, for the limiting of African production if it was to be in competition with European production, and for specialized terms of trade that opened up export markets for their products. However, because of these demands, and the directing of taxpayer money towards the Protectorate and the Colony, the British government continued to be heavily involved in supervising the colonial government, limiting the ability of the settlers to establish an independent settler colony. It is important to note that while I have traced out three different European interests at play in the development of the Kenya colony and its government, there was significant overlap between the three groups, and other European settlers, including traders, lower and middle class adventurers, settlers from South Africa, and ex-soldiers given land grants after the First World War, who were also involved in, and contributed to, the development of the colony. I have traced out these three groups partly because, in broad terms they represent the major interests at play in the establishment of the colony, and partly because these divisions were both fostered by and papered over in Nairobi with significant import for the development of the colonial and independent Kenyan states. Herbert Werlin notes that “the settlers sought in various ways to gain a formidable political position within the colonial framework [and by] 1906, the 600 resident settlers had succeeded in obtaining a Legislative Council, prompting [Winston] Churchill to exclaim in Nairobi the following year that “never before in colonial experience has a Council been granted where the number of settlers is so few”.” (1974: 40) “The settlers eventually gained an even greater degree of political control in Nairobi than in Kenya as a whole. Thereafter, settler efforts were directed to an expansion of their powers in the government of Nairobi by minimizing interference from the Central Government and the Colonial Office. By 1949 they had gained for the Municipal Council [of Nairobi] a privilege unique to a colonial urban community of borrowing directly on the London Money Market. The next year this achievement was capped by Nairobi’s becoming a city by Royal Charter.” (1974: 41) To understand these developments and to make sense of Werlin’s claim that Nairobi was created as “a basically non-African city for the needs of the White Highlands and in conformity with the predilections of the European settler

 

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elite”, (1974:47) we need to return to the insights that Nairobi was a “frontier town” and that the European population that established itself in Kenya more generally, and through Nairobi particularly, was not as homogenous as Werlin’s use of “settler” might imply. In contrast to much of the literature described above, Dane Kennedy, in his study of Settler Society and Culture in Kenya and Southern Rhodesia between 1890 and 1939, Islands of White (1987), focuses not on the social and cultural differences between the different individuals and groups of “settlers”, but rather on how the settlers created a “new and distinctive culture” (Kennedy 1987: 147) in response to the stresses and freedoms of being “on the frontier”. In particular, and in contrast to the view that is widely reproduced in contemporary discourse on Kenyan history and political discourse, a view that focuses on the power of colonial government and white settlers, it was the tenuousness of this hold on power and the difficulty of adapting to the African social and economic environment that most significantly framed the experience of white immigrants in Kenya. “Power was matched by fear, arrogance by anxiety, disdain by suspicion.” (Kennedy 1987: 187) The result of this uncertainty and anxiety was not simply to put pressure on and make use of colonial government to impose conditions that secured the socioeconomic and political positions of these settlers vis-à-vis the indigenous population. Rather, the development of a distinct settler culture, with carefully delineated “material and symbolic boundaries between themselves and the people upon whom their livelihoods so heavily depended,” (Kennedy 1987: 188) was the defining characteristic of the creation of the Kenya colony. It is this settler culture, and the racial and social hierarchies and barriers it created and perpetuated, which structured the establishment of Nairobi for “the economic and administrative convenience of Europeans.” (Werlin 1974: 37) The boundaries created between the “settlers” (understood now as this distinct cultural formation) and the African population, “in their most explicitly repellent form … consisted of statutory mechanisms that regulated the residence and labor of African to insure not just their economic subservience to Europeans, but their social segregation from them.” (Kennedy 1987: 188) This segregation was most strongly and most visibly imposed in Nairobi. This is where social and political circumstances provided the raw material through which settler culture could be developed. This included the existence of

 

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an African population that was increasingly removed, especially because of the freedom provided by wage labour, from traditional social control, and therefore provided a particularly threatening – socially and politically – population against which to organize. It was also where the collection of a diverse group of white immigrants to be found in Kenya were located, permanently or otherwise, allowing what was otherwise a dispersed and relatively tiny population of Europeans to gain the appearance of a significant community. Finally, as a frontier town that was simultaneously the administrative capital of a colony that was still tightly wound-up in metropolitan politics and under metropolitan control, a settler culture that put the interests of a local European community above those of the indigenous population, as the Colonial Office, if not necessarily the government of the Kenya colony or the East African Protectorate, could be developed and entrenched. Nairobi, therefore, might have become both an administrative capital, and a settler capital, almost by chance and in spite of the physical conditions that made it a particularly bad place for a long-term settlement, but these conditions, and the difficulty of belonging to and living in the town, fed into a frontier mentality that acted as the base for the development of white settler culture. It also provided a ready-made “other” in the form of metropolitan supervision of colonial administration, and the growth of an African population newly de-linked from traditional social controls and increasingly reliant on interaction with the white settler culture for its own production, to imagine itself against. Because “complete physical separation was impossible so long as settlers relied upon indigenous labor, a more subtle form of distancing was effected by customary and symbolic means. This was especially evident in the domestic environment, where physical intimacy between white master and black servant was countered by psychic distance, achieved most notably through the deliberate inadequacies of the pidgin languages.” (Kennedy 1987: 187) It is this attempt to create psychic distance to counter physical intimacy, and its relationship to cultural production and reproduction that is of particular interest to me. This process necessitates the creation of cultural boundaries that are in essence ways of reading the physical landscape. In other words, because there was a readily visible physical intimacy between the white settlers and the African population, especially in the

 

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domestic sphere in which cultural reproduction is often housed, there had to be a way in which that physical intimacy was detached from the creation of the kinds of social intimacy that differentiate insiders from outsiders. While Kennedy focuses here on how the “inadequacies of the pidgin languages” facilitated the creation of this all-important psychic distance, I am interested instead in how physical intimacy was stripped of its symbolic value in the process of signifying closeness and connection in the domestic sphere. Instead, it was the performance of racial identity and a class-consciousness that traced this racial differentiation that became the signifier of the kinds of intimacy through which cultural difference was produced. Kennedy tells us that the “settler communities … had to regulate their own ranks and restrain those deviant whites who tended to drift across racial and social borders. … To counter those threats to the precarious structure of white settler society, colonial authorities attempted to prohibit those prospective immigrants whose financial circumstances made them potential sources of disturbance.” (1987: 187) For this reason also, the settler community exerted considerable pressure on newcomers to conform to collective norms; important mediums of assimilation were the multitudinous social and sports clubs, professional associations, and other voluntary organizations that pervaded colonial life.” (1987: 188) The pressure to conform to these collective norms, and the importance attached to not just membership in social and sports clubs and professional and voluntary organization, but with that also, a way of moving through and interacting with the physical landscape when that landscape and that interaction, is understood as performing a signifying function and a symbolic role, remains a cornerstone of the production of Nairobi society. “A major consequence of [efforts to make settlers conform to collective norms] … was the erosion of preexisting social distinctions between colonists, the devaluation of diverse origins as a meaningful basis for differentiation, and the creation of the myth of the classless white society.” (Kennedy 1987: 187-188) And significantly, the pressure to conform to collective norms similarly results in the reproduction of a “middle class” identity that while, on the surface, represents the recognition of class differences and the privileges associated with it, imagines the production of a classless society that reflects the attitudes, norms, beliefs, and practices of this middle class.

 

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Just as significantly, this myth of a classless society is made possible by a process in which physical intimacy is stripped of symbolic value except where, and in the ways in which, it traces the performance of middle-class class-consciousness. While intimacy continues to carry significant import in defining cultural values and in setting the limits of the community for whom these values act as collective norms, it is the kinds of intimacy that allow this middle-class class-consciousness to become visible that become important to this community. A psychic distance is created not just because of the need or desire to counter the physical intimacy that emerges from socioeconomic class differences, but also because the physical landscape performs a signifying function – it tells us who belongs and how. In other words it tells us who is part of the commons – with the commons understood here in personal and intimate terms, the stuff of every day action, rather than as a theoretical construct of the classless society that we aim to create. Nairobi was a European city, built by and for a white settler community. This community came into being primarily in opposition to an African community that was considered a threat not just to the power, but the continued existence, of the settlers in Kenya. This opposition was manifested, first, by attempts to physically exclude Africans from Nairobi. Because, however, their labor, and their economic products – including agricultural produce – were necessary to the sustenance of this settler community both in Nairobi and outside, the Africans were included in Nairobi as an excluded group. The African were limited to living only in certain areas of the city, and the people in these areas could only legally be there if they held legitimate employment (despite the importance of an easily accessible pool of day laborers and other part-time workers to the city’s economy) and the paperwork to prove it. This paperwork also indicated the part of the country that these workers were from, and to which they would return upon completion of their employment. In other words, Africans could only ever be in Nairobi as migrants from their reserves. One of the ways this prohibition against Africans belonging to the city was manifested was by ensuring that the African areas of the city were largely un-serviced by municipal authorities. In addition, the relatively low wages paid to the workers relative to the expense of living in the city, and the construction of largely dormitory-style housing that discouraged the workers from bringing their families to Nairobi, was meant a disincentive to African settlement.

 

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It is the African family, rather than simply the African, that was being denied a place in Nairobi. In Comforts of Home (1990) Luise White investigates prostitution in colonial Nairobi as a phenomenon that developed alongside the production of workers in Nairobi. Because "Nairobi had no industrial base - the wealth of Kenya was kept in the agricultural sector - and hence no need for a permanent labour force…British capitalists sought to make the capital a city of male migrants." (White 1990: 1) Prostitutes in Nairobi were involved in the reproduction of male labour in two particular ways - first, they provided what were essentially marriage ties for unmarried African men who were unable to afford a family within the new relations of capitalist production, second, they often worked to support rural households with their income. Frederick Cooper's (1996) analysis of the labour question in Kenya suggests, similarly, that African workers in the cities and towns were unable to make enough money to provide for a family in the city and often, therefore, had rural homes and families that were reliant on kinship networks for survival. The white settler community, made up of individuals with a strong family and civic sense, was contrasted with a mostly male African population that lacked those same virtues, at least in the context of the city. It was also the potential of Africans to belong to these white settler families that was being guarded against. “Particularly troublesome were the problems of miscegenation and poor whitedom, both of which blurred important distinctions between the colonizer and the colonized. To counter these threats to the precarious structure of white settler society, colonial authorities attempted to prohibit those prospective immigrants whose financial circumstances made them potential sources of disturbance and to save needy colonists from social perdition through programs of state assistance.” (Kennedy 1987: 187 – 188) More significantly, the physical intimacy that existed in the domestic sphere had to be carefully contained, with limits placed on what that intimacy was allowed to mean and in what contexts. The Africans, especially those members of the domestic staff whose employment kept them in close and consistent contact with members of this white settler community, were understood both not to be members of the settler families that they worked for, and also to not have families of their own, or at the very least not in Nairobi. To the extent the African family existed, it was located in the African reserve

 

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and it was in that reserve that it could be approached as an object through which knowledge and meaning was constructed. The physical landscape (both built and natural) served a symbolic function, allowing value and meaning to be produced only through certain assemblages of people and things, in particular contexts, and in particular relationships to each other. Nairobi, in other words, was a landscape that was constantly read in order not just to reinforce certain specific social hierarchies, but more importantly, to produce them. To understand these hierarchies as class hierarchies is not to do so in the sense often ascribed to Marx, that is in terms of ownership of the means of production and of labor power in a capitalist system, but rather to see class formation as the very specific and context-dependent process through which a society emerges in relation to an anxiety about a tenuous and uncertain hold on power and the ability to access and reproduce privilege. The forces of production are not so much economic, in the modern sense of the word economy, as they are social and cultural. And to call them capitalistic, at least in the Marxist sense, is to link these forces of production to the historical emergence of a very particular anxiety – the threat occasioned by the accumulation of wealth linked to industrialization, commerce, and finance in nineteenth century Britain to the social and political power of a British aristocracy. Nairobi emerged at the turn of the twentieth century as the symbol of the opening up of a new frontier for a British aristocracy. It was, however, simultaneously the site of a battle between this aristocracy and the increasingly powerful British upper middle class, made up of industrialists, businessmen and financiers that had adopted many of the trappings of the aristocratic lifestyle, that was increasingly in control of government in Britain and with that, the colonial strategy. It was this “gentryfication of the upper middles classes … [in which] the upper middle classes imitated the lives of the gentry … [by buying] country houses and [retiring] there as soon as they could manage that financially, and [sending] their sons to Oxford and Cambridge,” (Gillette 1990: 8) as well as the marriages between the two groups, which enabled the creation of a white settler society in Nairobi and the “creation of the myth of the classless white society.” (Kennedy 1987: 187-188) This myth, a way of dealing with the anxiety about power, position, and

 

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privilege in both British society and in the new colonial landscape, became the origin myth of Kenyan society. My aim in this dissertation is to suggest that both this myth of the classless society and the ways in which Nairobi was built in order to allow this society to emerge remain foundational to the production of Kenyan society. Since independence, an African population made up of businesspeople, financiers, professionals, and highranking government officials and politicians, has moved into, and largely taken over, the neighborhoods, schools, social clubs, and voluntary organizations originally restricted to members of the white settler society. The relationship between these “middle class” Africans and the Africans who work for them but continue to live in the poorest parts of the city and continue to maintain the kind of strong and necessary relationship to the “African reserves” beyond Nairobi that enable these residents to raise and support families, is in many ways no different than it was a hundred years ago. It is the countering of physical intimacy with psychic distance, and, conversely, how the actual physical and social boundaries that create inequalities of access and opportunity emerge, within liberal democratic practice and theory in Kenya, as less important politically than the psychic intimacy created by the nation-state ideal, which is central to the continued production of the myth of classless society. In order, therefore, to understand the reproduction of hierarchy and inequality in Kenya, and the role of government in Kenyan society, it is necessary to investigate class formation and to see class it as the realization of a historical process through which certain kinds of intimacy become central to the political process and others get excluded. It is this classless society, emerging through Nairobi, which inherits government power in Kenya and which uses that power in an attempt to limit, defer, and transfer the risks inherent to being and becoming. Nairobi and Middle Class Politics In his 1973 article, “The African Crowd in Nairobi,” Frank Furedi seeks to explain the dynamics of the nationalist movement in Kenya through an examination of the history of “the political relationship among urban African social groups,” specifically

 

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the “difference between the modality and goals of popular and élite politics” rooted “in the matrix of Nairobi’s social structure” and resulting in “the elimination of popular movements as a political force by the ruling African political élite.” (1973: 275) “The growth of Nairobi, a colonial urban centre par excellence, provided unequal opportunities for its African population. The majority of the Nairobi Africans came to constitute the African crowd – domestic servants, the majority of workers in private and public employment, and petty traders. This group should be distinguished from the Nairobi African middle class, which formed the ‘political élite’. The African middle class possessed a fairly high level of education and had remunerative positions with government or were wealthy traders… The different, and often contradictory, interests of these two groups of people were strikingly manifested on the level of political action. The ‘popular movements’ of the African crowd were direct and often extra constitutional. Their organizations… were characteristically militant, and were often based on mass support. The ‘élite politics’ of the African middle class were strictly constitutional and moderate. Their goal – to consolidate their position within the colonial system – had obviously only limited appeal. The conflict between these two social groups was resolved by the elimination of the African crowd as a political force.” (Furedi 1973: 290) The early politicization of Africans in Nairobi, initially through an anti-wage reduction campaign that led to the formation of the Young Kikuyu Association in 1921, which later that year became the trans-tribal East African Association, “was aided by two forces … Asian organizational and material help [which] benefited African political mobilization in Nairobi” and the “emerging group of educated Africans”. (1973: 278) The former were “struggling with European settlers over an number of political issues”, while “the young educated Africans [were given] an opportunity to come to the fore as the representative of African opinion [because] they, more than any other group of Africans, had the organizational skills which were a prerequisite for the establishment of a viable organization.” (1973: 278 – 279) “The activities of the EAA were stimulated by three important factors: the general reduction of wages, a temporary alliance with the Asian community, and the important alliance between African educated and working classes.” Importantly also, the

 

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“politicization of Africans in the reserves through the activities of the EAA illustrated the importance of Nairobi within the political system of Kenya.” (1973: 279) The government sought to establish “safe channels for African political expression” by setting up the Nairobi Native Advisory Council “composed of leader of tribal associations many of whom were close relatives of chiefs and headmen in the reserves), representatives of missionary societies, and government nominees… This small group (many of whom were in government jobs and enjoyed privileges like government housing schemes for civil servants, etc.) had, by 1940, become conscious of their interest vis-à-vis the colonial regime. While they suffered from various forms of discrimination, their privileged position defined their mode of politics.” (1973: 280, emphasis mine) “After the end of the Second World War, the tempo of African political activity greatly accelerated. In 1944 the Kenya African Study Union, later called the Kenya African Union (KAU) was formed. The organization was started by a group of ‘prominent Africans in Nairobi’ who wanted to establish a rather select political body… It is interesting to note that, despite a widely held belief, KAU never attracted widespread popular support. In Nairobi it was a party of younger, educated Africans, who sought reforms within the colonial system.” (1973: 282, emphasis mine) The Anaka wa 40, or the 40 Age Group,3 was an organization of Kikuyu that came to play a central role in African politics in Nairobi. “Its first members were the unemployed, petty traders, thieves, prostitutes, and other of the lumpen proletariat of Nairobi. Many of the leaders were ex-soldiers and traders who felt that within the colonial system there was little scope for their skills and ambitions.” (1973: 282) “The organization… had close ties with a number of trade unions and the most radical wing of the KAU. Through its ability to obtain money and arms, the 40 Group played a central role in the movement which the government called the Mau Mau.” (1973: 284) “The 40 Group, and other movements associated with it, represent the most successful populist political initiative in Kenya’s history… The Group was often looked upon as a Robin Hood type of band, and it could operate within the locations with complete immunity.                                                                                                                 3 Referencing the year of initiation as adult members of society rather than the ages of the organizers, or their year of birth  

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The basis of its support was mainly among the Kikuyu, but its appeal was not restricted to one tribe, as the government often publicly made it out to be. One of the worries of the government was the fact that many Kamba and even some people from North Nyanza were members.” (1973: 285) “Men like Jomo Kenyatta… were hoping to bring about their goal of national independence through the means of constitutional politics. They were members of a class of young, privileged, well-educated Africans, whose frustrations with the colonial system led them to nationalist politics. But, in their roles as recipients of privileges, their interests led them to oppose the politics of popular movements like those of trade unions and the 40 Group.” (1973: 286) “The apparent failure of direct action against the superior forces of the colonial government made electoral politics the only feasible alternative. African political leadership in Nairobi was taken over by a well-educated group of younger leaders, many of who had travelled outside of Kenya… Their political style was defined by the interest of their class – independence as soon as possible, with a minimum of structural change. Thus it was necessary to mobilize as many people as possible while limiting participation in the party to a relatively select number. … The political role assigned to the Nairobi African crowd was to be present at demonstrations and mass meetings.” (1973: 288) I focus on, and quote at length, Furedi’s article in order to place the practices and strategies of the reform movement in historical context: from the place of Nairobi in Kenya’s politics to how the relationship between the “African crowd” and the educated and professional classes is implicated in creating and structuring democracy as a field for anti-politics, or perhaps more precisely as a field where the political goals of a privileged class of educated, professional, cosmopolitan Nairobi residents are turned into a moral position – that is, the aim of democratic politics writ large. The constitutional review process in Kenya has been most effective at forcing the political elite to make room, in government, for a closely related and intimately connected group of civil society and reform activists who were at the centre of the push for constitutional reform. The strategies employed by this reform elite to make demands for access and opportunity on the group of individuals who were in control of the institutions and resources of government are very similar to those used at other points in

 

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history to make claims on government authority. These strategies include a process of mass mobilization that is, however, accompanied, and whose effect is often mitigated by, the necessity of maintaining and utilizing the structures – institutions, processes, and language – of government and of law and legality. The overall effect is to reproduce these structures at the expense of the processes that allow this mass mobilization to occur, processes that involve the formation of relationships and shared purpose between the various actors involved. The ability to lobby government and to restructure it around a collective interest, is therefore, only momentarily accessible to the masses, and only through the relationships they are able to nurture with the political classes. Once these relationships are severed in the interests of bureaucracy and of mostly abstract legal processes, the masses are excluded from the practice of politics. The actions and experiences of the civil society and reform activists in organizing the reform movement reveal the importance and centrality of social interactions and intimate relationships to the reform and constitutional review processes. The focus on abstract liberal ideals, however, meant that these activists were able to focus on the importance of reforming the state as a way of creating access and opportunities for members of the general public, while simultaneously relying on their intimate and affective relationships and interactions to organize their production as a class that could push for access and opportunities for themselves. What the idea of the reformed state facilitates, is a way of dealing with the contradictions that emerge because of the demands of social reproduction on the one hand, and the desire to work against or overturn the hierarchies and inequalities that underlie that process of social reproduction on the other. The state here serves as a placeholder for the kind of human interaction that appears to be impossible in everyday experience but possible in an abstract future. This interaction is imagined to take place in a redeemed future where the nation has come together, the state works in its interests, and the members of the society work not only in their own best interests but carefully balance that against the best interest of others. I am suggesting that the process of state-formation in Kenya involves the production of an overly-optimistic discourse on state-making that focuses on the potential

 

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benefits of state action in a redeemed future while either eliding the potential costs of that action, or placing them in an unredeemed past or present. The production of this discourse is primarily the work of an urban, educated class who have benefited from the social hierarchies that exist in Kenyan society, but are eager to work against and discredit the hierarchies and inequalities that are viewed as immoral, while simultaneously preserving those – often understood to be earned by merit – which help maintain or improve their social standing and economic positions. Gavin Kitching, in his discussion of the formation of an African petite bourgeoisie or middle class in Kenya, suggests that in the colonial period, it was the fact of early access to formal education, which in turn provided access to better-paid jobs and to patronage networks linked to government and to Europeans, that allowed certain individuals to generate incomes that allowed for investment in land and business. These individuals were often “greatly admired in their own communities … [with] an almost universal desire to emulate them, … which in present day Kenya fuels the demand for education facilities, and brings intense popular pressure on the government to expand employment opportunities for the educated.” (1980: 310) In addition, the households headed by these individuals “slowly became the ‘reference group’ for the entire African population” where their greater wealth and privilege would be “signalled … by the quality of houses in which they lived, the size of their landholdings, the clothes their families wore to church on Sunday, and the number of children they sent to school.” All of this was structured around the desire “to win … ‘heshima’ (a Swahili concept combining notions of both honour and status) and to demonstrate it in these ways.” (1980: 310, emphasis in the original) Given their “experience of succeeding against the odds … they often see the responsibility of the poor as being to emulate the successful, and to make their way in the world by their own efforts … They refuse to recognize that that their own success (and that of thousands like them) has altered the conditions which made this advancement historically possible.” (1980: 310) Kitching cautions that this group is not “a very narrow stratum of extremely rich or powerful people concentrated in the capital city” but rather than “virtually every small community in rural Kenya has or had one (and usually more than one) family whose relatively privileged position was recognized by relatives, friends

 

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and strangers alike.” The point is to recognize “the ubiquity of the stratum and its relative privilege.” (1980: 310) I focus on Kitching’s analysis in order to take note of the historical process of production of the middle class in Kenya, where access to formal education and links to larger patronage networks often organized around government provided the ability to generate incomes that allowed this middle class to act as a “reference group” that possessed the symbols through which social value could be objectified and accumulated. In addition, even though I am interested in analyzing the development of an urban middle class based in the capital city, I am interested in the same stratum of individuals and families who are not simply the “very narrow stratum of extremely rich and powerful people” concentrated in but not restricted to Nairobi, but instead are those individuals and families whose privileged position is widely recognized. Finally, I am interested in expanding on Kitching’s analysis here that this middle class refuses “to recognize that that their success has altered the conditions which made this advancement historically possible.” Kitching later contends that attempts to democratize and expand access to the kinds of privileges enjoyed by this petite bourgeoisie – most notably here the “Agrarian Revolution” that occurred between 1952 and 1970 – “did little or nothing to alter the patterns of differentiation which had been operating among Africans in Kenya before its onset. In fact, being … simply a response to, or a copying of, the mechanism which a nascent petite bourgeoisie had been using to improve its own position well before 1952, the ‘revolution’ simply fed into that mechanism, since to take advantage of it households already had to be in a comparatively privileged position.” (1980: 374) Kitching notes that “it is in the higher reaches of the ‘formal sector’ public and private sector employment that the wages and salaries are earned on which are based the investment and expenditure funds on which such a large part of the rest of Kenya’s population is directly or indirectly dependent for their more meagre incomes. Politically these positions represent the ‘honey pot’, the major source of investment funds with which families may start on the path of upward mobility trodden by so many since the beginning of the colonial period.” (1980: 410) Kitching’s sense is that the private sector would be unable to absorb the ever-increasing demands for employment within this economic model, and that the Sate would have to step-in to fill the gap, which ultimately

 

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it will prove unable to do given the demands of international capital and international markets, and the relatively large contribution they make to domestic flows of capital and the role they play as sources of funds for the state. Kitching’s response to this crisis is to suggest that the African petite bourgeoisie needs “to attempt to carry through to its conclusion a capitalist revolution in production … or to remain an increasingly indebted appendage to the world system, faced with everworsening political difficulties internally.” (1980: 430) I, however, take his analysis of this middle class in a different direction. My analysis of the constitution-making process, when tied to Kitching’s analysis of the historic production of the middle class, focuses us on the ways a class of urban, educated professionals channels and reproduces structures through which privilege is constructed and connections made to patronage networks, structured primarily around government, that create access to investment incomes that can be utilized to source and display the symbols of social value. What the middle class participates in primarily, and, as can be seen through the reform and constitution-making process, as a political project structured around state formation, is the objectification of the symbols through which social value is accumulated and distributed as a way of making sense of and belonging to Kenyan society. This is a process that involves, first and foremost, the production of Nairobi as a symbolic system that indexes belonging to Kenyan society. Middle Class Desire There seems to be no slow night in Nairobi, no off-switch. In every social gathering space, from night clubs and bars to restaurants, coffee shops, sports clubs and churches – people are congregating, celebrating, reveling, dealing, drinking, worshiping, and otherwise stepping out of and away from the mundane. There is an emphasis on getting away from the routine, even when these efforts themselves become routinized. So, what is this routine that Nairobi residents routinely look to be distracted from? What is it about the everyday that has to be avoided every day? The answers to these questions almost certainly vary from individual to individual, and any attempt to offer an all-encompassing theory of these actions will only

 

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serve to flatten the differences that give these answers life in the interests of the theory itself. So, rather than try to offer an explanation as to why Nairobi residents seem to be living an escape from life, it would perhaps be more instructive to look at what they seem to be escaping from and into. Early in my stay in Kenya, I felt like I spent too many nights at this one particular nightspot. Of course, of all the bars or clubs I could have frequented, it did fit my personal idiosyncrasies the best. The crowd was mixed and even on the busiest nights, with four separate bars, and if you stayed far enough away from the dance area, you could find a corner where you could sit with a group of friends and have a conversation. Soon, however, the repetitiveness of the nightlife in Nairobi got to me. I enjoyed it well enough, but more in bite-sized pieces. There was also something a little disconcerting to me about it. First, it was too familiar. It was, in many ways, that materialization of the old adage “the more things change, the more they stay the same.” There were more clubs and bars, coffee and tea had become things you went to meet over, and there more options for socialization of all kinds in the Nairobi I returned to conduct fieldwork in than in the Nairobi in which I grew up. There were also definitely more people, and of different social backgrounds, in these various spaces. Second, there was a palpable sense of anxiety tied to this familiarity. I was very much aware of how expensive Nairobi was, especially if one were to live the kind of middle-class lifestyle that I had grown up in, and I was always surprised at how much people indulged and invested in the kinds of consumptive practices that my own income would not and could not support. I wondered how in a place where incomes were generally so depressed people could afford to eat out continuously, and spend night after night at nightclubs and lounges drinking expensive liquor and generally indulging themselves and their peers. It was the generosity of my friend General Agwati, a local businessman with well-established links to government officials both in the civil service and in political institutions, which allowed we to spend time in these establishments, interacting with and listening to people. It was evident that at least a subset of the people I met was there in a similar capacity – as hangers on, dependent on the goodwill of one or two individuals who had the income to support such a lifestyle. General Agwati’s

 

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popularity was linked partially to his open wallet. It did seem, however, that at the very least a significant minority of the people who participated regularly in this Nairobi “party” lifestyle couldn’t possibly afford to, but still did, and I wondered how this was possible. The answers to this question varied. I discovered over time that many of my peers directed a significant portion of their incomes towards these displays of consumption while struggling to pay rent, and to meet other obligations like timely payment of school fees. One acquaintance, Steven, I discovered hadn’t paid his rent, in one of the upscale apartment complexes in Kileleshwa favored by young professional, for six months and eventually he and his wife had to go live with her parents. When I discovered he had been evicted, I was surprised seeing I saw him in the bar on numerous occasions loudly buying rounds of drinks for his companions as he told me about the nights out on the town he was enjoying on a basis that made me worry about his ability to do his job. That the eviction had taken so long, with his wife unaware that rent was unpaid, was possible only because the apartment complex he lived in was managed by a close friend of his whose father owned the premises. The larger point I want to note here is that Nairobi itself, and the social interactions it made possible, rewarded, and, at least on the surface, legitimated, seemed to compulsively pull a fairly sizable group of people into participating in a kind of conspicuous consumption that was based as much on living a lifestyle as having other people bear witness to your participation in it. The stories that people shared in the bars and clubs, as well as at the various other public and private social events that I participated in at settings as diverse as churches, concerts and backyard barbeques, were predominantly about participating in the particular social scene shared by those present, with the importance of this social belonging and performance reinforced with every story about the adventures and misadventures that were part and parcel of belonging to the scene. When people weren’t talking about their lifestyles, however, there were conversations about politics, and here I mean specifically national politics and the personalities, ideas, issues, and ideologies tied to it. These conversations were about politics as spectacle, a kind of national soap opera that was constantly played out in the

 

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mass media. People talked about the Kibaki4 succession and who would be the next President of Kenya, or, confronted with the stream of evidence presented in the mass media, about the ongoing and spectacular failures of government. Government emerged as a national government that was both the intimate preserve of a “political elite” and “ruling class” whose interactions and intrigues surrounding were constantly available for discussion and dissection, as well as a national government that lacked proper administrative structures and technical know-how. An interesting dichotomy was created, therefore, between, on the one hand, an idea of government as something that was the preserve of a small elite group that hoarded state power and held the country and its inhabitants hostage to its whims and selfish desires, and on the other, a national government whose actions and activities were transparent and open to investigation and direction. This national government was something that many saw themselves as needing or wanting to participate in as a way of changing the political and socioeconomic conditions that were readily and easily observable by the everyday observer. The state, as an object of inquiry, was therefore simultaneously a site of intrigue and obfuscation, and something that readily revealed itself in a way that rendered it malleable and manipulable. The third thing that people regularly talked about in social settings was the promise of spectacular accumulation. I will talk more about this culture of “deal making” in a subsequent chapter, but it is important to note at this time that everyone in Nairobi (and beyond) was so to speak, on their “hustle.” There was, at least in conversation and in public discourse, a sense that there was money to be made in Kenya and people regularly talked about their ability to make it or their proximity to the circumstances that would allow it be made. Success in these money-making endeavors, often created opportunities for public and conspicuous consumption, and it was hard not to feel that part of the reason that people engaged in many of the consumptive activities and performances that marked middle-class life in Nairobi was tied to a desire and perhaps even a need to provide evidence of their success or their ability to be successful. Many of the opportunities to make deals were presented in the kinds of social settings I have                                                                                                                 4 President Mwai Kibaki who retired at the end of his second term in office following the general elections held in March 2013.  

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mentioned, further necessitating the need to belong to them. General discourse, especially again in the mass media, but readily reproduced in private conversation, also pointed to the fact that Kenya’s economy was growing and that as it grew a larger and larger segment of the population was upwardly mobile and able to regularly perform this mobility. More than a social or economic fact, this mobility became something of a moral object. Individuals were not only expected to be able to take advantage of the opportunities that a booming economy provided but the lifestyle that emerged out of it was talked about as if it were a sign of some higher moral and technical aptitude and qualification for success. Business was never just business, jobs were never just jobs, and careers were never just careers. They were always symbols of something more, and this something more linked the ability to navigate the social and political economy of middle-class, cosmopolitan, modern Nairobi life, and to do so successfully, with the idea that the individuals who managed to do so had characteristics and talents that were greater than ordinary. In other words, that these individuals were special. This idea of “being special” is important. It plays into the kind of entitlement that was often connected to this middle class Nairobi life – that this lifestyle was something that individuals deserved to have because of the simple fact of their existence. I saw this expectation produced and reproduced in the various forums I attended that were linked to the push to create and then implement the new constitution. At a graduation ceremony for participants in the Youth Leadership Council (YLC) – a program organized jointly by a foreign NGO and a local civil society organization – the invited speakers talked repeatedly about how special the program was and how uniquely prepared its graduates were to take on leadership positions. This, in and of itself, is not a unique proposition, these programs and others of its kind, in Kenya and beyond, are aimed at identifying and training “special” individuals who can then claim that it is “merit” and professional preparation that allows them to occupy positions in which they have access to middle class incomes and the lifestyles that go with these positions. It is important, however, to also pay attention to the locations in which these claims of “uniqueness” and “specialness” are made. The YLC graduation was held at one of the largest hotels and conference centres in Nairobi. And while the

 

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leaders it was celebrating were ostensibly meant to be representatives of “the people,” what was being celebrated was admission into the professional ranks, or at the very least the acknowledgement that these individuals had the right to access the positions otherwise held by a professional middle class or a political elite. When I attended the Annual Jurists Conference or the forum organized by the Kenya Association of Manufacturers for business leaders to discuss the proposed constitution with members of the Committee of Experts and Parliamentary Select Committee on Constitutional reform, held respectively, at the Mombasa Continental and the Nairobi Intercontinental Hotels, the location indexed the importance of the attendees and of their work. What was being displayed and reproduced in these locations, and by these locations was social value. Navigating Nairobi I left my brother’s apartment in Brooklyn on a still slightly humid morning in early September. For the first time I was taking a taxi to John F. Kennedy International Airport, something suggested to me by a friend once I mentioned how little I was looking forward to lugging two huge suitcases down the street and down the stairs into the still very humid subway station. The ride to the airport was nice. I sat in the backseat and had an extremely pleasant conversation with the cab driver. Brooklyn looked a lot different from the backseat of a cab. It felt different too. And while I can’t remember whether the trip took more or less time than my average trip by subway, in terms of convenience, ease of travel, and my overall disposition when I made it to the airport, the two trips were lightyears apart. I know it would have been different trapped in a cab at rush hour, which is how I remembered my last trip to the airport by car about a decade before. And it was clear that even though I was not sure what, when, or how, infrastructural improvements had made the trip a lot less of a potential nightmare. All of which also reminded me of the “Big Dig”, the project to put Boston’s highways underneath the city. This had turned a hectic commute through a crowded city that was notoriously hard for visitors to figure their way through, into a straightforward drive that seemed to cut the size of the city in

 

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half. Of course, one now probably missed out on most of the city, other than the views as you approached it, creating a different way of interacting with and knowing it. My brother-in-law’s driver met me at the airport when I arrived in Nairobi. James and I had been through this rodeo before. He had picked me up at the airport at least two times in the past, and each time we had taken a different route5 to my sister’s house in an attempt to reduce the amount of traffic we encountered. Once we went up Outer Ring rather than Mombasa Road, the main thoroughfare leading from the airport. Mombasa Road turned into Uhuru Highway once you reached the Nyayo Stadium roundabout, and further up, at the Museum Hill roundabout, it turned into Waiyaki Way. It was the main highway through the city and increasingly choked with traffic. Outer Ring Road was smaller; a two-lane road rather than the multiple-lane dual carriageway that was Mombasa Road. While Mombasa Road and Uhuru Highway snaked through the Central Business District (CBD), where one could encounter the large modern buildings, monuments, and parks that Nairobi was known for, Outer Ring Road made its way through Eastlands. Eastlands is a mixed-income residential and business area east of the CBD made up of several housing estates built and managed by the Nairobi City Council. I did not spend a lot of time in Eastlands growing up and knew little about it. Although I did spend some years as a child in Ngei, another City Council estate but this one built off of Langata Road, on the west side of the city. Most of my formative years were spent in Loresho, an upper to middle-class neighborhood with stand-alone homes built on their own quarter and half-acre plots, in the Westlands area adjoining it, in Lavington where my school was, and in the adjoining neighborhoods of Kileleshwa and Kilimani. Naturally the city opened-up as I grew older, gained independence, and made my way by public and private transportation to various public and private gatherings around the city. But by then, what Nairobi was, how I imagined, made my way through, and interacted with it, was already inscribed not just in the physical and social landscape but as that landscape.                                                                                                                 5 As of this writing, many aspects of this journey might seem redundant, ill conceived, or perhaps even fabricated. While I was in Kenya for fieldwork, an ambitious project to improve the road system in Nairobi was happening in earnest, and has since been mostly completed. The possible routes I might have taken would, I suspect, looks very different now, even though I’m sure much of the local road network I describe still exists.  

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It would be easy to suggest that I had a particularly sheltered existence and that I just did not know the city in all the ways that it manifested itself. And this would be true, and also precisely the point. Nairobi was not simply a city, but a constellation of specific locations that were inscribed with meaning by an admixture of factors that gave each location its particularity and provided a context through which to view and make sense of that particularity. These factors were heavily conditioned by the intimate relationships that structured my life, and both the extent of my family interactions and the limits imposed by my social background ended-up providing the menu of options through which I placed myself in the world, learned to be an individual, and figured out both what my community was and what part I could, should, and would play in it. That Eastlands was largely unknown to me is not that interesting, even to me. But as I sat in the front seat of my sister’s car and made my way through a part of Nairobi that I both recognized and did not know, watching people take part in lives that were both connected and disconnected from mine, I started to understand exactly how not just my background, but also the intimate connections and social relationships that allowed me create a story about that background, shaped how I understood, moved through, and created my Nairobi. When Outer Ring Road let out on Thika Road, which led out of the city heading North East, and we started to move back towards the city and to Kiambu Road and to the back entrance to Runda Estate, the high-income suburban area where my sister lived, my Nairobi re-emerged. Thika Road, like Mombasa Road was how I used to make my way out of the city most of my life. Mombasa Road towards the airport and Mombasa, where my father had worked and lived during much of my childhood, and Thika Road towards Chogoria and Wiru in Meru South where, respectively, my parents were raised and now live. The other entrance to Runda estate was through Gigiri and flanked by the US Embassy on one side of the road – where, I had by necessity, spent plenty of time, and the headquarters of the United Nations Environment Programme on the other. I had family members working for the UN who were located either on the UNEP campus or in one of the other UN compounds that dotted the neighborhood, and had spent time there as a delegate at the Model United Nations. A little further down the road from the embassy was the Village Market, an upscale shopping complex that I had visited on numerous

 

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occasions both while I was a teenager and since, on my various trips back to Nairobi from the US. My Nairobi was not necessarily unique nor, again, altogether interesting. It was, however, a city for me in a very particular way. It was a collection of places, events, relationships, friendships, intimacies, memories, histories, narratives, and ideas that emerged together not as a coherent whole but as a whole nonetheless – a specific place, but with blurry edges, a shifting shape, and boundaries that came into view only when I crossed or challenged them. Transportation and Accessibility I arrange the first interview for my research, with Davinder Lamba, at a party held at my sister’s place. Kenya’s Truth, Justice and Reconciliation Commission had hired him as a consultant to help craft an organizational blueprint with timelines, deliverables, and outcomes for the TJRC process. The party is for commissioners belonging to the TJRC, and where, in stark contrast to the antipathy that follows future disagreements about the leadership and constitution of the commission, good cheer reigns as they take turns toasting each other. It’s an evening party and I had to borrow my brother’s car to get here. I had stayed with my sister on previous trips and even for a week when I first returned to Kenya to start my fieldwork, but without a car, the place feels inaccessible. It is very possible to walk but even at a high turnover rate, the Village Market shopping complex, Nairobi Java House where I regularly went to work and access the internet over a coffee, and Limuru Road where one can catch public transportation into town, are at least 45 minutes away, and always inevitably either under a blazing sun or pouring rain. Kiambu Road, the other entrance to the Runda Estate, is a shorter, albeit still not short, distance from my sister’s house, but the two roads are on either side of Karura Forest, and taking that exit is literally a roundabout way of getting to downtown Nairobi. Runda is home to some of the wealthier residents of Nairobi. It is rivaled only by the neighboring Muthaiga, New Muthaiga, and Ridgeways estates, and by Karen (where many Kenyans of European origin still live) on the other side of Nairobi, in terms of

 

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being home to a business and political elite, and a large expatriate population. It is made up of large, multi-story houses on plots that are generally in the quarter, half or full acre range. These houses are home to relatively small nuclear families and staffed by employees whose job it is to take care of the house, the manicured land on which it sits, and to guard its perimeter. Most of these security guards are employed through various private security firms, which also install alarm systems in the houses, but the houses of senior government employees easily stand out by dint of the administration police who man the gates. Many, though not all, of the homes also employed drivers. This was often necessitated by the fact that the maintenance of the home required people to be in multiple places at once and some of those tasks were easily, and best, delegated to someone who could easily run small errands, afford to wait around in traffic or at various locations, or make multiple stops to complete various tasks. Part of why drivers were necessary was because the locations in which social production occurs – for examples the schools children attend or the homes of friends and family – are often widely dispersed. I meet Davinder at his office in Westlands, which is located in a border region of sorts where residential housing gives way suddenly to a shopping and business district. This particular configuration is common in Nairobi, a city where the central business district, the shopping districts, and the residential areas, originally intended for a European population of civil servants and merchants, abut. The expansion of the Westlands shopping district has meant that the street on which the Institute is located, formerly made up exclusively of the single-story homes that were common in this area and in which his organization’s offices sit, has been transformed by the addition of a shopping mall, a church, and across Rhapta Road, a large office park. Apartment complexes of various shapes and sizes have also crept in over time, replacing many of the single-story houses. As in many other similarly located residential neighborhoods, these apartment buildings are meant for upwardly mobile, youthful professionals and their young families who would rather live in the areas they grew-up in or frequented, or alongside others in their immediate or extended social circles. They are also many young expatriates who visit as students and researchers, or whose jobs do not allow them the luxury of renting houses in Runda and similar neighborhoods, and who

 

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likewise gravitate towards a social circle with similar tastes and interests, but also similar family backgrounds. Social standing, as well as the possibility of engaging in social contact and intimate relationships with certain kinds of people was maintained by the ability to live in these residential neighborhoods It is only because of the transformation of these neighborhoods that I could afford to live in the Westlands area during my time in the field, just down the road from where I went to school for thirteen years, and only twenty minutes walk from where I hold this first interview. The growth in the number of apartment complexes is spurred by spiraling property values and the concomitant rise in land rates in newly re-zoned neighborhoods that make owning a single-family home on a quarter or half-acre plot an expense that only a few can easily, and even fewer, happily, bear. It is also a result of a growth in opportunities in the Kenya economy for young professionals and the wages that come with these opportunities. I met my informants for interviews either at their offices, in their homes, or in coffee houses in different parts of the city. The offices were located in government buildings both downtown and in the Upper Hill area that sits adjacent to downtown Nairobi (actually just on the other side of Uhuru Park), in large office buildings either downtown or in upscale residential areas and/or shopping districts such as Westlands, Kileleshwa, Kilimani, Valley Arcade, and Hurlingham that were quickly attracting larger and ritzier office developments as the downtown area proved unable to meet the demands for modern and secure office space with ample parking. The parking situation was especially dire in downtown Nairobi. I knew many people who would never venture into downtown Nairobi, and had the luxury of not having to do so, because of the inability to secure parking, and the traffic conditions that increasingly ensnared commuters at all times of the day, not just during rush hour. It’s interesting how many of the offices of non-profit organizations I visited were located in converted residential units – some sitting on their own quarter or half-acre pieces of land, little-changed on the outside from the middle and upper-middle class homes that they still sat nestled amongst. This was especially true of the more established organizations, but even newer ones, like the Coalition for Youth Affairs were located in mixed-use neighborhoods in the more affluent areas of the city that were once

 

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purely residential and still largely looked that way. Mixed-use referred to the fact that more and more businesses and organizations used these houses rather than to the physical transformation of the neighborhoods themselves. There still existed the tranquility that comes from low population density and a lack of heavy foot traffic and the different kinds of formal and informal businesses that would be attracted to increases in either of these. These were still the suburbs in which I had grown-up and spent time just changed to represent a new kind of inhabitant – local and international NGOs – that could afford to be there. The offices in downtown Nairobi, many housed in buildings that had been put up decades before, and those in government buildings in places like Upper Hill, had a certain lived-in feel. Fresh coats of paint, new carpeting, and expensive new furniture could not hide the fact that most of these building had followed a different architectural logic and had reflected a different idea of sociality than the newer buildings. They were definitely constructed at a time before the openness and more democratic use of space that marked newer building and use of office space was in vogue. Walking through these buildings was often to be confronted with narrow corridors and closed doors behind which the work of government, administration, and the provision of professional services were undertaken. Even the reception areas in the offices themselves (at least those offices that had reception areas, which was often a direct reflection, at least in government buildings, of seniority) were taken up largely by the space where the receptionists, accompanied by secretarial and/or other administrative staff sat. The space left for the visitor was small, and often uncomfortable, unless of course there was a separate room for the function, again usually indicating you were in the office of the most senior of personnel. Mostly, however, reception was restricted to the more public and open areas of the buildings, near and around elevators and stairwells, where there was general space to have individuals wait without letting them into the inner sanctum of the office area. People here could stand or sit (on the few provided chairs), have conversations, use their cell phones, and be free to stay or leave without disturbing those whose job it was to be in the office area. They could also far more easily be ignored by those in the offices – out of sight and unobtrusive. These were public spaces within what was otherwise private office space.

 

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Yet in spite of this, these government and old city centre offices felt like more democratic spaces. Even though, in contrast, the more modern offices seemed to be designed with the visitor in mind, with large, comfortable waiting areas with reading material and often televisions for entertainment, they seemed to completely erase the public. People were ordered and in place and acted accordingly, often waiting silently until they could attend to the business that brought them there. Conversation was usually at a minimum, and everything seemed carefully placed and arranged with the intent of suggesting that one were in a modern working space. Everything appeared to be in its place. There were no people hanging out by the elevators or the stairs – public space was completely gone. The old buildings were clean but not sanitized. People, of all kinds, worked and passed through here. Appearances, as always in my time in Nairobi, where people were often in dress pants, button down shirts, ties, or suits, were important but there was a wider range in the styles, quality, and cost of this formal wear. It was mostly Western, yes, but you could see that most of it had not been constructed by high-end tailors or bought off the rack at the more expensive department stores. They ways people showed that they cared how they looked and sought to present themselves in an appropriate, formal, or respectful manner varied. Sometimes the clothes were worn, sometimes the fit was a little off, and rarely were they fashion forward. But they still reflected, albeit in modified or slightly distorted ways, the sense that formal wear was important and necessary when one went to conduct business. By contrast, the clothing choices one encountered in some of the more modern office buildings, and in the offices of civil society organizations and other NGOs where was often more casual. Even when dressy, it was necessarily dressed-down. In contrast to what one encountered in government buildings, there was more of an emphasis on African clothing, form large print shirts to headscarves and dresses that reminded one of West African clothing even though they were often designed and made by Kenyans. The greater freedom in choosing clothes, and in being informal, was in stark contrast to the need for formality in other office settings. And yet, there was uniformity in this variety that made the choice of casual, African, or business formal in these latter settings acceptable. There was a sense of comfort and place and order they spoke to, of

 

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belonging, and fitting-in, and being modern and progressive. There was also a lack of the kinds of urgency that compelled one to have to appear in certain clothing in order to get noticed or to request to be seen – one was already matter in place, and as matter in place one could dress in a multitude of ways. You were likely to encounter a wider variety of people in downtown offices and in government buildings. There were a greater variety of smells and sounds. There were more voices raised, more Kiswahili spoken (in addition to languages from the numerous other groups that called Kenya home) and people were far more likely to engage you in conversation, and to ask for your help or for a favor, as you waited together. There was a shared sense of urgency even where there appeared to be no urgency at all; of frustration that often came across as resignation willing borne. And at the entrances to these buildings, were uniformed security guards or policemen restricted entrance, there was a system that seemed to deal with everyone equally – whether dismissive or courteous or helpful. The physical location of many civil society organizations and NGOs was conducive to the production and display of a particular kind of middle class experience for the professionals who worked at these organizations. What it was not conducive to was regular and sustained access by the populations they were meant to serve. The kinds of contact that these organizations had with the public was largely at public forums, workshops, and other events organized off-site. There was a particular type of relationship that existed between these organizations and the people they were meant to serve, and the physical landscape and organization of the city, worked to continuously reinscribe the divisions that structured these relationships. The people were “out there.” They were the objects of knowledge-making exercises and the kinds of government interventions that came out of these exercises. While it was necessary to study the people, to study amongst them, to collect their views and ideas, it was also necessary to separate yourself from them, at least in the context of this kind of work. In general, there might have been more continuous and more varied interactions across socio-economic backgrounds between the individuals who worked at these organizations and some of the members of the public that they served from within them, the context of the kind of expertise and professional work done, especially by the

 

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more established civil society organizations, organizations that were usually also the best funded and most active, yet the work done by these organizations, the way it was done, and the professional and expert roles people occupied when doing this work, produced divisions around which Kenyan society emerged as Kenyan society. When I interned in 2003 at the Kenya Human Rights Commission, one of the oldest human rights-focused civil society organizations in the country and the incubator of many of the reform activists who pushed the constitution-making project, two days a week were reserved for members of the public who wanted to come and make complaints that the KHRC would try and investigate. These kinds of visits by the general public to the offices of civil society organizations, even in this limited form, are still more the exception than the rule. And while there was often a number of people there, the location of the KHRC offices in Valley Arcade, one of the affluent neighbourhoods I mentioned above, and which was adjacent to Kileleshwa, Kilimani, and Lavington, meant that many of the people who might seek their help would have to make their way to this part of town. Moving through Nairobi is anything but uncomplicated. There is a multitude of public and private means of transportation available and the question for me as I make my way through the city as I conduct my fieldwork is which type of transport will I choose. My choices reveal a lot about my physical location, my social location, and about the ways in which the physical and metaphysical boundaries between social groups both bleed into and harden against each other. Depending on how far I am traveling, and for what purpose, I can choose to walk, or if I’m in a rush, or feeling lazy, I can jump onto a bus or a matatu6 and using public transportation make that journey in a fraction of the time. If I have to, and for the sake of convenience, I can borrow a car, usually from a member of my family or a close friend, and once even had a friend rent one for me when I was staying with him. I can also use a taxi, which is often the way most of my peers who do not have cars, move around, especially at night. Because I live in Westlands, public transportation is easily accessible along Waiyaki Way, the main thoroughfare                                                                                                                 6 Privately owned and operated minivans used for public transportation, mostly of the 14seat and 25-seat variety, so-called because they originally charged 30 cents for a one-way fare.  

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through the city. But this isn’t the case in all of the more affluent neighbourhoods. The Kenya Bus Services (KBS) stopped service in many of these neighbourhoods when I was in my early teens, and matatus did not take up the slack because of the difficulty in regularly finding passengers (and profits) in these areas. While there is a more extensive network of public service vehicles in these areas now, it is still pretty limited. Since I walk so much, I often have encounters with many of the lower paid service workers, domestic staff, and security guards who I generally see at their places of employment. For most of them, even the cheapest public transport would take a too significant portion of their daily wage (for those who have a daily wage) and so, as is often the case for much of the morning starting in the pre-dawn hours, and much of the evening, the highways are as much marked by the cars sitting stuck in traffic as they are by the masses on foot that move in both directions along the sides. These two groups only rarely overlap, even though at certain times of the day, and in certain weather, walking is far more expedient than travelling by private car or public transport. However, when one stops having to walk, few rarely do again; and when one no longer has to use buses or matatus, and instead have the economic wherewithal or social connections to travel by private car, that is often the only choice to make. My penchant for walking and for public transportation actually marked me as a foreigner, as it was only young expatriates, like NGO workers, Peace Corps volunteers, and other researchers from Western universities, who would use one means of transportation when they could afford to, or leverage social connections so that they could, use another. While my economic calculations suggested that using taxis regularly, or owning, maintaining, and fueling a car, was an expense that did not fit within my budget, especially given the existence of cheaper, and often faster and more convenient forms of transportation, the calculations made by a Nairobi middle class pointed them towards a contrary conclusion. General Agwati often remarked to me how strange he found it that so many people spent money on expensive foreign vehicles while they did not own their own homes, but looking back on it, the reason why was clear. The calculations being made were definitely economic calculations; they were focused on accessing and accumulating the symbols of social value in Kenya, symbols that could be leveraged and traded on. When one could afford a large home in one of the cities

 

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wealthier neighborhoods, or a large house or apartment in a gated community, then money would be directed accordingly. In the meantime, cars were one of the most conspicuous symbols of one’s position and one’s membership in the middle class, and one’s value, therefore in and to society. Neo-liberal Visions This question of what makes up a community, is ultimately is a question of inclusion and exclusion. The question we are forced to ask, which is a question the constitution both asks and takes for granted, is what is Kenya? Who is Kenyan? Purely as a formal matter, the constitution defines Kenya through its geography, and defines Kenyan as a question of citizenship, with clearly articulated rules that govern how that citizenship is acquired. The constitution treats both as taken for granted categories, which is what makes them so easy to define. There are maps of Kenya. We know its boundaries. And citizenship is about belonging to that defined space and demanding certain protections and services from its government. What is lost, however, is an understanding of the historical production of both those categories, and with that history, an understanding of what is at stake when they are invoked and activated. Nairobi, as the location where settler control of government in Kenya was actualized, involved a particular production of space. This production of space needs to be understood both as a physical manifestation of the struggle for control of Kenya, and as one of the primary tools through which this struggle was conducted. It was not just that different communities were located in different parts of the city and had different rights to and ownership over the city, it was that what came to be produced as Kenya was inscribed in and inscribed as these divisions. To the extent that the attempts to restructure government in Kenya treat these physical spaces as simply symptoms of a social, political and economic order, rather than as the mechanism through which that order is continuously reproduced and made available to knowledge, the less likely it is that these attempts will be successful. The formal institutions, processes, and structures of political competition follow rather than precede the ways in which space is produced as a way of locating people and placing them in specific kinds of relationships with each other. In

 

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other words, the political process pre-exists the formalization of politics through the law and its structuring of the institutions of government. Nairobi needs to be understood as more than the site of national politics, or even as the site for the competition between central authority and localized control over the processes of governance. Instead, Nairobi needs to be understood as a political site in the sense that politics is played out through its very materiality. We need to understand not just that Nairobi is divided, or how it is divided, but what those divisions mean in terms of who gets to determine what Kenya is and what it means to be Kenyan. We need to understand how Nairobi is constructed to ensure that certain divisions are reproduced in predictable way, in predictable places, and for predictable reasons. It is these divisions, the production of difference in both its most particular and most general forms, that produces Kenya as a particular kind of state made up of a particular kind of people. What it is to be Kenyan can be revealed not just by what it means to be in or of or from Nairobi, but far more importantly, by how Nairobi can be read as a space where certain inclusions and exclusions, and the ways in which these are reproduced in ways that are seen as common sense and predictable, allow specific kinds of communities to come into being. Nairobi also needs to be understood as a place where a middle class identity is rehearsed and performed as a way of being Kenyan. This is true both in terms of the ideological beliefs, ways of knowing, and material practices that are used to display belonging to a modern, cosmopolitan, professional middle class, and in terms of the ways difference is produced and experienced in Nairobi so that being middle class emerges as a way of both belonging to and transcending that difference. The close identification of middle class identity with liberal ideals and progressive politics makes it possible to benefit from and attempt to improve on one’s socioeconomic position while simultaneously decrying the inequalities that underlie it. In fact, in the reform era, the ability to leverage one’s social and cultural capital as a middle class Kenyan in order to connect to the various patronage networks that have been built up around the promotion of a liberal and progressive politics provides access to employment, income, and other productive and reproductive resources.

 

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The way Nairobi is built and accessed forecloses certain kinds of intimate relationships and makes other kinds possible. The attempts to remake Nairobi to deal with what are seen as urban crises – such as urban sprawl, a housing crunch, unplanned expansion, the proliferation of semi-permanent dwellings, rising crime, failing sanitation, etc. – in particular involve attempts to alternately make visible and invisible modes of living that are necessary to support the lifestyles and life habits of an urban middle class. I am primarily concerned here with how certain issues are given a national and public profile in ways that point to their intractability, while others are made open to change and management. It is the lives of the urban poor that are constructed as open to the knowledge making practices linked to policy intervention. The ultimate aim of those interventions is to create middle class lives, which are rarely, if ever, the object of government intervention. Rather, they are the location from which knowledge about which interventions are necessary, originate. The reform process is a window into the relationship between the interests of a professional, cosmopolitan middle class and how Nairobi is imagined and produced as an urban centre. The material and ideological practices of this middle class are manifested in a desire to transform Nairobi into a “world class African metropolis” that is emptied of the symbols of socioeconomic inequality – such as visible “slums” and other signs of widespread poverty – that are otherwise inscribed on its physical and social landscape. Nairobi Metro 2030 (the master plan for the development of the Nairobi metropolitan area) and Kenya Vision 2030 (Kenya’s long-term national planning development blueprint) is an attempt to remake Nairobi along neoliberal lines by focusing on the building of the kinds of modern infrastructure and amenities that are utilized in the consumption and performance of a middle class cosmopolitan identity. The emphasis on best practices in management and the creation of a “rationalized” governance structure for the city, is intended to reduce difference to the object of a liberal political and economic practice that can manage that difference and either eliminate it or remove it from view. This process mirrors and actively recreates the process through which the settlers originally created Nairobi as a European city. This erasure of difference is conducted through a dual process whereby, first, practices of intimacy continue to ensure that a particular social and economic hierarchy position is

 

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reproduced within the city and inscribed in its physical landscape, and second, middle class rationality is widely dispersed, internalized and used to reproduce the fiction that it is possible to transcend these inequalities and to do so through liberal knowledge-making practices and liberal governmentality. I held a brief discussion with Mugo Kibati, CEO of Kenya Vision 2030, in a restaurant at the Kenyatta International Conference Center where his office is located. When I asked Mr. Kibati why he thought so much focus was being placed on the process of political rather than economic liberalization in Kenya, he remarked that Kenya’s economy had been liberalized in the early 90s and that the present historical moment was not the time for an argument focused on economic liberalization to be made. Rather, it was time for political liberalization. One, because the issues Kenyans concerned with are those of government, and two, because there was a need to focus on Kenyans on the ground. What was interesting about these two comments was, one, that it drew a distinction between politics and the economy as government issues, and, two, that the desire to focus on Kenyans on the ground was seen to belong to the political rather than economic realm. My purpose here is not to read more than is necessary into Mr. Kibati’s statements. It would be worse than disingenuous of me to suggest that Mr. Kibati did not believe that economic issues were not government issues or that the issues Kenyans faced on the ground were not, primarily, economic ones. Rather, his was first a commentary on economic liberalization as a macro-policy that was first instituted at the behest of the World Bank, IMF and the donor nations. This is a policy that has everything to do with global geopolitical and geo-economic hierarchies and a global economic system built around the interests of the industrialized nations of the global north and the financial system that structures the types and content of the interactions that take place between nation-states. The policy of economic liberalization, therefore, was always a top-down process, whereas the constitution making process has always been narrated as a bottomup one. Mr. Kibati was also making a commentary on a particularly Kenyan process of reform, one that made politics its primary, and sometimes seemingly singular, objective. Kenya Vision 2030, for its part, saw politics, and the structures and institutions of

 

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government, as only one of a number of “pillars” around which the reconstruction and development of the country was to be organized. Mr. Kibati’s claim, therefore, that the constitutional moment was about focusing on political liberalization and the restructuring of government by and on behalf of the people “on the ground,” was probably a nod to the ubiquity of this narratives and the fact that government reform, constitution making, and political restructuring were widely understood as necessary antecedents to change and development in Kenya. What I am primarily interested in here is the way an easy and seemingly necessary distinction was drawn between economics and politics, and between top-down and bottom-up processes. It is important to note that both the constitutional review process, as well as the numerous development projects initiated under the umbrella of Kenya Vision 2030, are marked by repeated gesturing towards the necessity of widespread public consultation and the involvement of all necessary stakeholders, in the drafting and implementation stages. This enhances the legitimacy of the processes, of their findings, and of their decisions and recommendations. In fact, what most distinguishes the projects designed and instituted through Kenya Vision 2030 from those instituted directly, and coercively, by the World Bank and IMF, is that the former are seen to have emerged through a consultative process and to have included the needs, interests, and desires of the populations at which they are aimed. Kenya Vision 2030, is the “country’s…development blueprint” (Kenya 2007: 1) that “aims to transform Kenya into a newly industrialising, middle income country providing a high quality life to all its citizens by the year 2030.” (2007: 1) The constitutional review process is seen as part of this blueprint’s political pillar, and “aims to realize a democratic political system founded on issue-based politics that respects the rule of law, and protects the rights and freedoms of every individual in Kenyan society.” (2007: 1) The language used, the ultimate aims of, and the process of development “through an all-inclusive and participatory stakeholder consultative process, involving Kenyans from all parts of the country” (2007: 1) of both Kenya Vision 2030 and the new constitution, are striking in their similarity. Both these processes privilege the expertise of professionals and the training they have received, yet the fact that professionals are often drawn from particular class and

 

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socioeconomic backgrounds and, therefore, channel and embed certain ways of moving through and making sense of the physical and social environment is only rarely discussed. The choices that these “experts” make about where and how attention and energy should be directed and for whose benefit have to be understood as choices that emerge out of particular affective and intimate relationships, the social context in which these relationships are formed, and the ideas about what is socially valuable that are objectified through these relationships, inscribed in the physical landscape, and distributed along the particular channels and networks that mark middle class life.

 

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CHAPTER TWO: KENYA HAS ITS OWNERS Introduction In this chapter I turn my attention to the argument made by civil society activists and their allies in the reform movement that the greatest danger to democratization in Kenya is the persistence of the “Moist state”, the seat of dark forces, hidden machinations, and undemocratic authority. I argue that this “deep state”, whose exact form and content always remains invisible and unknowable even though the effects of its power do not, represents two distinct but intertwined processes. On the one hand, it represents the irruption of actual social and material processes into the liberal abstractions around which reform organizes itself and through which it attempts to create and structure government. In other words, it represents the continued emergence of democratic energy around attempts made to foreclose the meaning of democracy in the interests of discourse of liberal rights. On the other hand, the “deep state” is also a stand-in for the historical processes that have structured the development of Kenyan society, how that society is governed, and how value and power are distributed within it. The idea that “Kenya has its owners” is often repeated in public discourse – and usually traced back to former President Moi – to suggest the survival of political and economic forces that have produced Kenya as a largely impoverished, undemocratic, and unequal nation-state. I, however use the statement to suggest that it is the highly visible middle class practices of consumption and social reproduction that have the most to tell us about how Kenyan society has developed and why it works in the ways that it does. Taking the “deal-making” culture that permeates middle class Nairobi, and paying particular attention to the “sugar deal” which was on the tongues and minds of several members of this middle class as a route to easy wealth and with that the ability to display status, I make the argument that the sugar deal represents the persistence of a social and political economy built around the production, distribution, and consumption of agricultural commodities.

 

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I suggest that the commodity supply chain, protected as it always has been by state interventions on behalf of a Nairobi-based elite and designed to supply an international and domestic market in which the consumption of commodities like tea, coffee, and sugar represented a display of status, has historically structured and continues to structure how wealth and political power are accumulated and distributed in Kenya. I am finally also suggesting here, that we should understand this historical process of supporting agricultural production in Kenya, and protecting large-scale production from internal and external competitive forces, is part of the process through which liberal democracy emerged alongside capitalism as a way of dealing with anxiety about class position, status, and wealth in rural industrial England. An aristocratic settler class entrenched in Nairobi both saw an opportunity to preserve its privilege vis-à-vis emergent attempts to use wealth tied to the expansion of industry, manufacturing, and financial services in England and a British government that was increasingly beholden to these new interests, and a way of accumulating wealth by supplying the attempts of a new class of workers, in addition to a new professional class and a new wealth-holding class, to display the symbols of status tied to an aristocratic way of life that was under attack because of changes in social and economic production. This historical process, its links to the commodity supply chain, its embedding in liberal ideology and a democratic ethos, its sustained connection to the production of government in Kenya, and the ways in which it emerges out of a classificatory system built around consumption and the performance of status, is revealed in the production of middle class society in Kenya and in Nairobi in particular, and in how middle class potentiality was released post-2002 by a NARC government that simultaneously directed resources back through channels tied to the production and distribution of agricultural commodities (for example by re-opening moribund agricultural boards) and supported the importation of cheap consumer items that made the performance of middle class identity both increasingly possible and increasingly visible.

 

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Moi’s Ghost In an Op-Ed published in the Sunday Nation of March 17, 2013,7 Makau Mutua,8 commenting on the petition filed by Raila Odinga asking the Supreme Court to nullify the proclamation by the Independent Electoral and Boundaries Commission (IEBC) of Uhuru Kenyatta as President-elect of Kenya, writes that “Mr. Odinga believes that a “hidden hand” of the “deep state” gave Mr. Kenyatta an edge.” Expounding on this point, and given the fact that Mr. Odinga’s petition revolves around the failures of the mechanisms put in place by the IEBC to prevent the manipulation of votes, Mutua goes on to state: “He [Raila] is likely to argue that the “sabotage” of the IEBC technological infrastructure was not accidental, but deliberate, and orchestrated by “dark forces” deep within the state.” Since the publication of this article, and likely in the period immediately before (given the fact that it is hard to pinpoint exactly when the characterization itself was born), the idea of the “deep state” has been latched onto by public and private commentators alike because of the extent to which it captures how many in Kenya view the forces that drive politics in Kenya. While in this scenario, the “dark forces deep within the state” have come together to ensure the election of Uhuru Kenyatta to the Presidency, it is interesting to note that just months before the election, Mr. Kenyatta claimed that “dark forces” had forced him to sign an agreement that had him abandoning his Presidential campaign in favour of another candidate, Musalia Mudavadi, before the agreement was rejected by delegates of his party, The National Alliance Party of Kenya.9 If both Raila and Kenyatta see themselves, or at least claim to see themselves, as resisting the machinations of the deep state, and doing so on behalf, and at the behest, of                                                                                                                 7 Mutua, Makau. “What is Odinga’s case against Uhuru Kenyatta?” Sunday Nation, March 17, 2013. http://www.nation.co.ke/oped/Opinion/What-is-Odingas-case-againstUhuru-Kenyatta-/-/440808/1722018/-/item/0/-/ej0efwz/-/index.html 8 Byline: Dean and SUNY Distinguished Professor at SUNY Buffalo Law School and Chair of the KHRC 9 See Nation Team, “I was forced to sign deal, says Uhuru.” Daily Nation, December 19, 2012. http://www.nation.co.ke/News/politics/Uhuru-disowns-poll-deal-with-Mudavadi//1064/1647354/-/v6ed5g/-/index.html and Mayabi, Lordrick. “‘Dark forces’ arm-twisted me – Uhuru.” CapitalFM News, December 18, 2012. http://www.capitalfm.co.ke/news/2012/12/dark-forces-arm-twisted-me-uhuru/  

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the people, it begs the question: what exactly is the deep state, who controls it, and in whose interests does it work? In his petition Raila asked the Supreme Court to set aside the results of the March 2013 Presidential election and IEBC’s declaration of Uhuru Kenyatta as President-elect arguing that the declaration goes against popular will of Kenyans. He claimed that he was “not challenging the election outcome because [he was] determined to be declared president; but … realised that to do otherwise would be a betrayal of the new Constitution and democracy.”10 For his part, in December 2012 Uhuru claimed that he had been willing to give up his presidential ambition for the sake of the country but chose to listen to his party’s national delegates who rejected the agreement that would have had him step aside for Mr. Mudavadi. Of course it is easy to argue that at least one, and perhaps both, of the presidential candidates might be disingenuous in claiming that “dark forces” and/or the “deep state” were conspiring against them. Tales of Mr. Kenyatta’s wealth regularly precede him, although it seems like it would be hard to distinguish between his personal wealth and that of his family. There is also the fact that he is the scion of Kenya’s first president, Jomo Kenyatta, who is said to have collected a kitchen cabinet – the “Kiambu mafia,” made up of family, close friends, and business associates from the Kiambu area – through which he run the country. This “Kiambu mafia”, it is regularly suggested in public and private discourse, continues to wield disproportionate influence over the country’s economic resources and political processes. It is perhaps from this that the idea of the “deep state” or the state behind the state emerges. Uhuru Kenyatta is seen as the Kiambu-mafia’s choice to run the country as a way of maintaining that influence, therefore, consolidating a narrative that has him as the beneficiary of the actions of the “dark forces” of the “deep state.” However, Daniel arap Moi and Mwai Kibaki, the two presidents who followed Kenyatta, are said to have had kitchen cabinets too, and both Raila and Uhuru are said to also be advised by an inner-core11 made up of family, old                                                                                                                 10 Wanga, Justus. “Raila: Why I challenged IEBC’s move to declare Uhuru president.” Daily Nation, March 16, 2013. http://www.nation.co.ke/News/politics/-/1064/1721896//b0149s/-/index.html 11 See Njoka, Mwenda. “The power brokers behind Uhuru-Ruto.” The Standard, March 24, 2013. http://www.standardmedia.co.ke/?articleID=2000080019&story_title=KenyaThe-power-brokers-behind-Uhuru-Ruto  

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friends, political allies, and business associates, many of whom benefit from and make use of their association with the candidates to situate, empower, and enrich themselves through varying strategies. So, what is being referred to when the “deep state” and the “dark forces” that emerge out of it, are invoked? Who stole the election from Mr. Odinga? Was it just Mr. Kenyatta or was this part of a larger scheme? In making his arguments to his supporters, Raila said, “In 2007 I won the General Election with 60,000 votes but the victory was robbed from us. This time round, we have said no, never again.”12 He makes an explicit connection between the results of the 2007 elections when he ran against the incumbent, Mwai Kibaki, and 2013. “Using the proverbial wisdom of King Solomon, who judged a case between two women fighting over ownership of a baby” to make his point, Raila continues, “King Solomon suggested that the baby be split at the centre so that each of the women goes with one half. … However, the real mother told the King to give the baby to the fake mother because she could not bear the pain of the death of her baby. This is what I did in 2007. The fake mother took the baby, but this time round, Kenyans are saying ‘bring back our baby.’”13 Raila is suggesting not only that there is a history that needs to be taken into account when accounting for his response to the declaration that he had lost the election, but also that the two events – the 2007 and 2013 elections – need to be understood together. His loss in this election is part of the same master plan by these unseen forces to preserve their influence and power by denying him the presidency. Now, a lot has changed between the two elections, and almost everything that connects them can be best described as a moving part. Not only did Raila have at least some benefits of incumbency in 2013, given that he was the Prime Minister in the Grand Coalition government created in the aftermath of the 2007 elections, he is also running against a different person. In addition, while it has sometimes been postulated that Mwai Kibaki favoured Uhuru as his successor, it is important to note that he never showed publically, by word or deed, that this was the case. It was sometimes suggested that                                                                                                                 12 Nyassy, Daniel. “Raila claims he won elections.” Daily Nation, March 18, 2013. http://www.nation.co.ke/News/politics/Raila-claims-he-won-elections/-/1064/1723610//8mqk30/-/index.html 13 Ibid  

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either his Vice President, Kalonzo Musyoka, or the above-mentioned Musalia Mudavadi, or even, during periods of apparent détente between the two that Raila himself was his preferred successor. What is the relationship between Kibaki and the deep state anyway? Uhuru had been Kibaki’s main opponent in the 2002 elections, and the fact that they are both Kikuyu hides the generational differences that exist between the two and the regional rivalries that have been played out, especially in the context of the competition for influence within the state, between the Kikuyu of Kiambu and those of Nyeri and Muranga. (Berman and Lonsdale 1992, Clough 1990) In addition, Uhuru Kenyatta’s running mate in 2013, William Ruto, was allied with Raila Odinga in 2007 and helped deliver the vote of the populous Rift Valley despite the presence of former President Moi who supported Kibaki in 2007 but fronted Uhuru against him in 2002. My point is that while it might be easy to claim that there is some kind of deep, nefarious plan working to undermine democratic reform or to prevent the popular will from being manifested, it is much harder to actually pin down that plan, or to attach it to any specific individuals in a clearly causal and consistent chain of actions and intentions. What allowed the reform movement to constitute itself in the way it did was opposition to President Moi, who was understood almost universally in Kenya as a bad actor. Moi, for his part, is not exactly a sympathetic character. But the fact that he availed himself of various techniques of governance, many built around the repression of opposition to his continued rule, to maintain his position in the state structure, should not be read independently of the social, economic and geo-political contexts that made his choices not only possible but sometimes legitimate. Doing so risks us mistaking a symptom for the cause. In an Op-Ed14 published in the wake of the March 2013 general elections, Karuti Kanyinga15 recapitulates many of the arguments behind the call for government reform and for the new constitution and truth, justice, and reconciliation commission (TJRC) that were to help facilitate this reform. First is the idea that it was “The struggles by Kenyan                                                                                                                 14 Kanyinga, Karuti. “All tools of good governance are in place, leaders just need to use them.” Daily Nation, March 22, 2013. http://www.nation.co.ke/oped/Opinion/All-toolsof-good-governance-are-in-place/-/440808/1727854/-/cmr6e7/-/index.html 15 Senior Research Fellow, Institute for Development Studies, University of Nairobi  

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people to create a new republic [that] resulted in the passing of a new Constitution in 2010.” Second, is the fear that “we are yet to address the root causes of our governance challenges [and that] the foundations of ethnic conflicts, politics of exclusion, imbalances in regional development, and widespread lack of accountability or what we now refer to as impunity are yet to be fully addressed.” Third, is the belief that “The desire to control government and public resources, combined, are the main reason behind fierce competition over political power not only in Kenya but also in many other countries where democracy is yet to consolidate.” Fourth, is the feeling that “Kenya’s new leaders have an important role to play in creating a platform of change. They have a responsibility to show aspirations of all communities are similar. Everyone aspires for a better future — a future built on social justice.” And, fifth, the notion that “The structure to drive this agenda is certainly the Constitution and the devolved system of government.” Kanyinga’s piece serves partly as a timely reminder for both electorate and elected of what is supposed to be at stake after the first election under the new constitutional dispensation. It is a call to arms for those who are invested in the project of reform – a group that should ostensibly include all right-minded Kenyans – and a reminder that the project is still incomplete, and despite the progress made over the last two decades, that its hold remains tenuous. This sense of tenuousness is echoed in an Op-Ed16 by Maina Kiai,17 published on the same day and in same paper as Kanyinga’s. In it, Kiai starts by reiterating a point made a week before by acclaimed Kenya author and former political detainee Ngugi wa Thiong’o in a New York Times Op-Ed18 that “the real winner in the recent presidential elections was Daniel arap Moi.” Kiai goes on to                                                                                                                 16 Kiai, Maina. “It may be digitalised generation but the script is a blast from the past.” Daily Nation, March 22, 2013. http://www.nation.co.ke/oped/Opinion/It-may-bedigitalised-generation-but-the-script-is-a-blast/-/440808/1727892/-/snheyvz/-/index.html 17 Founder and former Executive Director, of the Kenya Human Rights Commission, a civil society mainstay for the past two decades, and founding chair (2003-2008) of the Kenya National Commission on Human Rights, established in 2002 by an Act of Parliament. He is currently the Executive Director of InformAction, a non-profit media production company with a focus on social justice, and serves as UN Special Rapporteur on the rights to freedom of peaceful assembly and of association. 18 Thingo’o, Ngugi wa. “A Dictator’s Last Laugh.” New York Times, March 14, 2013. http://www.nytimes.com/2013/03/15/opinion/a-dictators-last-laugh.html?_r=0  

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argue, “The Moist script is familiar; and for those of us who cut our teeth opposing dictatorship in the 1980s and 1990s, it is eerie.” For Kiai, it is this “Moist script” that provides the context through which the events surrounding the March 4, 2013 election, should be read – a suppression of information, “loud lamentations for peace” at the expense of justice and ignoring “the fact that the election process will only be concluded when the Supreme Court decides on cases before it”, and the stationing of armed personnel ostensibly to ensure security. “The worst” offence for Kiai, “is the brazen violation of our Constitution and international human rights law with the supposed banning of public meetings and protests by functionaries and bureaucrats who claim to be impartial but act more like party hawks for the dominant group.” In toto, “These statements should forewarn us about the sort of regime we should expect: repressive, non-accountable, disrespectful of the constitution and the law and one that will not brook criticism or independent thinking. It is moving forward to the well known Moist past.” Kiai explicitly links the progress of the reform agenda to a repudiation of governance and politics under Moi. And it is this effort that is under threat in spite of the best efforts of the reform movement. So, how do we understand the dark forces deep within the state – the deep state – that Makau Mutua and other reform activists reference when they are explaining the difficulties that the reform project faces, and, to that end, the promise of the new republic that the new constitution was meant to usher in? To answer, I want to open a discussion around President Moi and his comment that “Kenya has its owners,” but to push an analysis of this statement beyond a discussion of the state in Kenya. In so doing, I will return us to the subject of class formation, and in particular here, the production of the middle class. Owners What did President Moi mean when he said “Kenya has its owners?” This statement has been repeated in numerous contexts since then and is usually taken to mean that there are specific people who view themselves as having the right to hold political and/or economic power in Kenya. It is to this group that the idea of a Kenyan “political

 

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class” or a Kenyan “political elite” is generally seen to refer to. The battle for state power in Kenya is often categorized as one between the entrenched interests of this political elite on one hand and the interests of the country’s population more generally on the other. An alternative reading of the comment proposes that Moi was referring not to a local “political elite,” but instead to the idea that Kenya is, to some degree, controlled by foreign actors with domestic interests. The suggestion here is that Western powers, specifically Britain but also increasingly the United States, have vested interests, and specific political and economic aims, that they seek to protect and advance in Kenya. These foreign powers are either off-stage pulling the strings, or are openly and notoriously involved in determining, or attempting to influence, government policy. Both the financing of government projects, and with it the tacit approval given to state officials, and the funding of local civil society organizations to lobby government or organize opposition to its policies, by donor governments, foreign organizations, and international agencies are often understood in this light. In order to protect their local interests, the donor states are seen to favor stability over anything else. And while, in the past, this might have had them supporting a “corrupt” or “undemocratic” administration, evolving global geopolitics has led them to be able to increasingly push for liberal democratic reforms as a condition for their continued support. Even as these reforms are sold as necessary to improving socioeconomic conditions in Kenya, tellingly, they have generally meant the further entrenchment of the political and economic interests of the donor states – most notoriously through the structural adjustment programs that increased the ability of Western financial flows to access and shape local markets – in Kenya’s local economy. As globalization has spread as a discourse through which local and international actions, activities, and events are understood, the proliferation of foreign interests in Kenya’s economy are seen as a sign both of a neocolonial attempt on the part of the developed nations to control the country, and conversely, as necessary to its development. This has led to the emergence of a domestic political process, built around the project of government reform, that decries the political power held by the developed economies and the social and economic inequalities caused by global capitalist

 

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production, yet, simultaneously, seeks to insert the “less-developed” economies into these global production chains, and regularly seeks to have this foreign political power intervene domestically to influence political processes or ensure that certain outcomes emerge out of them. I would like to propose a third reading of the comment, “Kenya has its owners,” as far as it relates to the need for or process of government reform. This reading does not challenge either of the conclusions noted above as much as it attempts to recast them. In other words it does not go to the issue of intent but rather focuses on the assumptions that underlie these conclusions. What I would like to suggest is that the question of whether there exists a “political elite” in Kenya that uses state power to selfishly guard and advance its own interests, or whether the developed economies of the West continue to maintain, protect and expand their economic and political interests in Kenya, are really second-order questions. Both claims assume as their basis the existence of the state as a particular kind of historical and theoretical object. The reform project is focused not just on the state but also on a particular type of state power. The attempts to authorize, organize, and direct state power through government reform are tied to the idea that the state has the ability to shape, guide, and regulate society. This idea has its roots in the colonial encounter and in the development of government bureaucracy. Colonial government came to be conceptualized as something imposed by an outside colonial power and that, therefore, had an existence independent of the political economy of the territory it governed. This idea also has its roots in social theory and in the conceptual work done to understand what the state is, how it emerges, and its relationship to society. As Timothy Mitchell puts it: “The state-idea and the state-system are better seen as two aspects of the same process [or to] be more precise, the phenomenon we name “the state” arises from techniques that enable mundane material practices to take on the appearance of an abstract, nonmaterial form.” (Mitchell 2006: 170) These techniques include an intellectual and scholarly practice, which has more often than not been organized around a liberal democratic sociality rooted in attempts by members of a professional, noncapital owning class to construct a basis for state power that reflected the particular socio-

 

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material processes through which they negotiated their individual and communal identities. The state in Kenya is doubly de-linked from its material basis. It is not just that the state is an ideological formation that appears as if it were external to the particular material practices from which it emerges, but also that these material practices appear as if they are external to the society that they govern. Colonial government was understood primarily as an appendage of an external power – the British state – even as it organized social life in the colony. Therefore, the state as both ideological structure and sociomaterial practice could be seen as something that sat above local society. What I am suggesting here is that the state in Kenya is produced through a historical process by which the state, in its ideological and material forms, is understood to be separate from society. The state is seen a foreign object, not just an external one. In addition to the material process that creates both the state-idea and the state-system, (Mitchell 2006) there is a separate social practice that seems to be captured by neither yet is constitutive of both. The state in Kenya, when approached as an object of analysis in the service of reform, is rarely seen as something that emerges out of the local material practices through which society constitutes itself. For this reason, the state is often approached as if it emerges out of material practices that are themselves projections of the state-idea – that is products of the ways in which government bureaucracy organizes the socio-material world. In other words, government bureaucracy is treated as if it were the true source of the socio-material world. This is not a problem for the attempts of government bureaucracy to organize and manage society. In fact it reveals how successful this project has been. It is, however, a problem for social theory. This lacuna in analysis does not mean that local socio-material practices and processes are not deeply implicated in the production of the state, quite the contrary. What is needed is a way of bringing these local socio-material processes, or perhaps more accurately an understanding of how socio-material processes more generally are filtered through local practices, to bear on discussions about the state. Our analysis of the state needs to take note of how the historical process of producing government bureaucracy in Kenya has impacted how we view the state and the potential place and role of government in Kenya. Without this analysis, it is possible to talk about

 

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the state in a way that takes into account neither the ideological formations through which it appears nor the material practices that allow it to appear as such. Instead, a historically contingent emergence of government bureaucracy and the ideological and material effects of that emergence, are substituted for an analysis of the state. To conduct such an analysis, I want to focus on the creation of the middle class that is understood to be the origin of the constitution-making project, but, following Kitching, to approach this middle class not as a social class in the sense advanced by “bourgeois social stratification theory or with the income distribution analysis of neoclassical economics” (Kitching 1980: 442) but by seeing it as a way of understanding the system of production in Kenyan society. To that end, I focus on the kinds of performative consumption that middle class life in Nairobi supports and demands, and the ways in which resources are sourced to finance it. The object that emerged ethnographically to shed light on this relationship was the importance in Nairobi of what I will call “deal making”, and in particular the “sugar deal”. Sugar and Commodity Exchange Sidney Mintz has argued, “Tobacco, sugar, and tea were the first objects within capitalism that conveyed with their use the complex idea that one could become different by consuming differently … [an idea] closely connected to England’s fundamental transformation from a hierarchical, status-based, medieval society to a social-democratic, capitalistic, and industrial society.” (Mintz 1985: 185, emphases in the original) Mintz’ argument that the creation of a democratic and capitalist society was both the result of a transformation from a hierarchical, status-based society, and structured around the consumption and production of a particular collection of commodities, can be read alongside Timothy Mitchell’s insights about how the distribution of coal and oil structured political possibilities, to open up a way of seeing politics as something tied to a specific set of social and material processes, and democracy as a historical and perpetual response to the attempt to domesticate these social and material processes in particular locations.

 

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Mitchell focuses on how “Political possibilities were opened up or narrowed down by different ways of organizing the flow and concentration of energy, and these possibilities were enhanced or limited by arrangements of people, finance, expertise and violence that were assembled in relationship to the distribution and control of energy.” (Mitchell 2011: 8) In doing so, Mitchell does two things that I build on in my own work. First, he opens up a way of thinking about politics as taking place in relation to commodity flows. It is these flows that allow certain arrangements of people, ideas, and resources to come together in order to first create a political field, and second to lay claim to it. This political field does not arrive pre-assembled nor does it provide a predetermined meaning for the political. The field of government is one in a series of relay points through which the commodity is transferred and transformed, and at which the political question is confronted. Within a system of governance – including a liberal democracy – there is, therefore, no way of understanding politics that does not confront commodity flows and the ways in which those flows help assemble the social. The second thing Mitchell does is closely related to the first, and especially to my focus on the work of the commodity. While the “flow and concentration of energy” opened up political possibilities, many of which were built around the desire to create a more egalitarian world in response to the “rise of large industry … [and the] extraordinary forms of social insecurity, physical risk, overwork and destitution” (2011: 27) that communities and individuals were exposed to, the attempts to expose and leverage the system’s vulnerabilities simultaneously produced efforts to limit these vulnerabilities. Mitchell argues that the rise of the oil industry, and the ways in which it was transported, distributed, financed, accounted for, and brought to market, was a direct response to the possibilities for populist politics that had emerged through the coal industry. Oil, therefore, is not just a different commodity than coal – a different way of producing and using carbon energy – it is a commodity of a completely different nature. By this I mean that oil helped facilitate the articulation of the commodity with a marketlogic that was meant to counter populist sentiment. This co-articulation involved “the application of new kinds of economic expertise ... [that was] increasingly technical [in] nature … [and claimed] an increasing variety of topics as subject to determination not by

 

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democratic debate but by economic planning and knowhow. … [This] deployment of expertise requires, and encourages, the making of socio-technical worlds that it can master. In this case, the world that had to be made was that of ‘the economy,’ … [which] became an object whose management was the central task of government, requiring the deployment of specialist knowledge.” (2011: 124 – 125) A particular kind of market, therefore, was constructed to facilitate the production and distribution of carbon energy in the form of oil, and this market owed its logic to a “socio-technical world” – the “economy” – that was the particular object of this linking of government intervention and expert knowledge. The commodity, which emerges only in relation to the market and to the “arrangements of people, finance, expertise and violence” assembled (as this market) in order to facilitate its control and distribution, circulates in this socio-technical world as a vehicle through which these arrangements are given legitimacy and with it allow for the accumulation on economic and social capital. What Mitchell allows us to do, therefore, is not just to think of how oil, specifically, helped produce the “economy,” but how the market logic that develops in relation to this economy ensures that commodity flows, in general, reproduce, and reproduce as valuable, certain specific assemblages of social and material practices, processes, and strategies. The social and material world that emerges through the economy is a world that values certain social and material relationships, practices, and interactions. It is a world, also, that relies on a relationship between government and expertise that limits political conflict to the competition over who has the legitimacy to run this “economy” while ensuring its reproduction as the logic of production. The “sugar deal” is a manifestation of the persistence, in Kenya, of a settler economy, built around the production, distribution, and consumption of agricultural commodities, and the ways in which that settler economy structured and was structured by government and the production of class distinctions. It is, also, both an acknowledgment and a repudiation of the classificatory system that has kept wealth and opportunity in the hands of a small minority, and simultaneously attempted to close off the meaning of democracy by tying attempts to challenge this distribution of wealth to the linking of government intervention, liberal ideology, and expert knowledge, and to middle class, cosmopolitan, educated, professionals.

 

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The Sugar Deal One of my friends, Paul “Chubby” Ameda, whom I had met years ago in Philadelphia and who had returned home to Kenya to make a place for himself in the country’s burgeoning film industry, characterized Nairobi as a place where people were always trying to make deals. Because of the extent to which the culture of the deal permeated everyday social interactions, it seemed like the next big deal, the kind that would make one a player in social and economic circles, was right around the corner. Even though never publically acknowledged, and very rarely discussed even in private social settings where conversations regularly turned to stories about participation in the kinds of social experiences that seemed to require large amounts of disposable income, there was an understanding that these kinds of middle-class, cosmopolitan, consumer lifestyles could not be consistently supported by most people’s incomes. In Nairobi, people talked big, thought big, and dreamt big. They had big ideas and knew big people. And they were always on the lookout for or just about to close the next big deal. One of the businesses around which people were trying to structure deals was the supply of sugar to the retail market. In my time in Nairobi, I got into conversations on an almost daily basis with people who had information on or an inside track to deals where large sums of money and super profits were on the table. At least half of these days were about sugar. The rest were around the supply of maize, scrap metal, and money. And when I say money, I mean it literally. There were offers and stories to do with the “cleaning” (literally – as in the removal of ink-markings using a chemical solution) of US dollars marked as earmarked for United Nations purposes and the printing of Kenya currency. Part of why these deals were discussed with me was because I had a friend who worked in a bank and another who worked off the books in a similar capacity, and, as was always the case, these deals required a substantial infusion of cash before the promised super profits could appear. In fact, when one of these two friends was kidnapped and held for ransom over a harrowing weekend, it was assumed at first that it was over a sugar deal gone badly.

 

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Stories about having had these and other experiences were also shared with me when I related my experiences to peers and family members. I heard about people being “bewitched” or “drugged” by some psychoactive substance that made them happily hand over their ATM cards and pin numbers to complete strangers, and always there were stories about the kinds of money that could be made through government contracts if one had the necessary contacts, which someone was usually willing to provide for a fee. While experience with such deals seems to have been fairly prevalent, it was only because I shared my experiences, and did so on a regular basis as I tried to understand what was going on in Nairobi, that this information was revealed to me. Part of this might be embarrassment at having been a victim of a deal that went sour, but given the fact that most people kept trying to structure such deals, it was clear that something else is going on. It is important to understand the sociality that is tied to both the attempt to make these deals and the way money from the deals is to be used. In the first instance, these deals are constructed so they rely on personal connections and the activation of a relationship between two individuals where trust and care are made operational. Even though these deals circulate in the public sphere, and stories abound about how particular opportunities never materialize, a potential deal is only ever transformed into a specific set of social and material processes when the information about the potential deal is produced and processed as if it were private. A unique and special relationship between the source of the opportunity and the person being drawn into the venture is suggested in the act of offering up the opportunity. The information one receives is always constructed as if it were information that was not otherwise available in the public sphere. And it is the relationship itself, which is either established or reinforced by the offer of the opportunity, that becomes key as it is this that sets in motion the series of social and material processes through which the deal can possibly be consummated. You choose to participate in the transaction because you trust the other person, because you believe what they are selling, and because you are motivated by the care the other person is showing you. By allowing you into a closed-off space where large quantities of money can be quickly made, this person is offering you an opportunity to participate in the very public performance of consumption that marks middle class life in

 

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Nairobi. This consumption is not just about the enjoyment of life, it is much more importantly a way of being marked as someone who has the social connections and intimate relationships that allow you to participate in this lifestyle, something that speaks also to your social value and your position within various social hierarchies. It is, more than anything else, this social position that is seen as creating, and often actually creates, the various opportunities through which one can make significant amounts of money. Even though money is talked about, and appears to be everywhere in Nairobi, there is, as my position as potential access to funding sources illustrates, evidence of both a liquidity crunch in the city and a dearth of opportunities to access cash. It is in this socio-economic climate, where there is a need to perform middle class identity in order to locate oneself in the city’s social and political economy, as well as a need to finance this lifestyle, that this culture of deal making is sustained. It is through the creation and reinforcement of intimate relationships and the affective concerns that are linked to them that these deals continue to circulate. And it is, finally, in the activation of specific social processes linked to existing networks built on intimacy and effect – for example turning to close friends or family for financial assistance especially since it is primarily in these kinds of interaction where one can make requests for cash without needing or providing information about where that cash is going – that these deals can potentially be completed. Sugar is of particular interest to me because even though the kinds of money that can be made through the large-scale exchange of commodities are usually understood to only be available to those with connections in government, sugar money, for various reasons I will discuss was seen, at least during my time in the field, to be accessible to ordinary middle-class Kenyans. In fact sugar seemed to transform what would otherwise be seen as an ordinary middle-class Kenyan into a person with connections in government and elite social circles. In essence, sugar became an industry through which one could perform this identity – that is, as someone who occupied a social position where connections that allowed money to flow could be activated. Sugar is connected to a longer history, tracing back to the establishment of the Kenya colony, of making money through the setting-up and control of commodity chains and the social networks through which these commodities were transformed, on a

 

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consistent basis, into income. These commodity chains were implicated in the establishment of government in Kenya and reveal to us some of the ways in which money moves in Kenya. They also reveal how this movement necessarily involves the continuous production of patronage networks that constitute and are constituted by government bureaucracy and the discourse of liberal democracy, while tying these networks to the kinds of performative consumption found amongst the middle class in Nairobi. Everyone who was trying to get into, or claimed to be in, the sugar business, kept their contacts close to their chests. However, they always either had buyers willing to buy vast quantities of the commodity, or sellers willing to let go of it, at the kinds of prices that promised large, quick, and easy profit. There are several factors that kept the promise of such profits alive. First, Kenya is a net-importer of sugar. Second, because of the peculiarities of the domestic sugar industry, there are several predictable months of sugar shortage in the domestic market every year. During this time, there are increased sugar imports flowing in through the Mombasa port, either from COMESA (Common Market for Eastern and Southern Africa) countries or from South America, where the commodity is produced at significantly lower costs. In addition, because the port serves several of the countries in the East Africa region, there are sugar imports meant for countries such as Uganda arriving at the port for transportation. Money can be made in different ways. One is to be granted a government contract to import sugar to meet the annual shortfall. This sugar is imported duty free. Because of the relatively high price of the commodity on the local market, caused both by the fact that domestic production is notoriously inefficient yet protected from competition by the government, and because of regular shortages that drive already high prices even higher, imports of sugar can earn super profits for those who are granted these contracts. In addition, money can be made if imported sugar meant for other markets can be redirected to the local market. One way of doing so is re-packaging this imported sugar so that it looks as if it originated from one of the local producers so duty can be avoided. Of course, the ability to avoid making customs payments means being able to understand and finesse transactions at the port, which is ostensibly run by the government through the Kenya Ports Authority. However, the sugar import operations, like other port

 

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operations, are said to be run by a small group of Arab traders and businessmen in Mombasa, while the retail end is said to be controlled by Indian merchants who are eager to get their hands on the goods at a certain price but are unwilling to deal with the potential risks and criminal liability attached to the process. This is the gap where all manner of individuals have attempted to place themselves as middlemen seeking to pocket as much of the difference between purchase and sale price as possible. The role of these middlemen is seen to be largely facilitative – they use what they assume to be their unique connections to put buyers in touch with sellers, usually by attempting to find a deep-pocketed individual, or using connections in banks to acquire letters of credit, in order to finance the purchase of the commodity. The whole process is veiled in secrecy; the buyers and sellers are never direct contacts, but contacts of contacts. This secrecy is seen as integral to the functioning of what is in all senses an illegal transaction, and it is this secrecy that allows so many people to be lured in, assuming that their particular contacts are key cogs in how the transaction unfolds. What is created, regardless of the accuracy of the details I presented above, is a discursive space where one’s connections create the potential for rapid and seemingly uncomplicated accumulation. It is not sugar, per se, that is being traded on, but the ability to link different groups of people to each other using the unique set of personal relationships that one has cultivated. In addition, it is necessary to be able to sell oneself as a person who has those connections and can use them to create productive synergies. This is as much a factor of one’s position within a social network as it is about how one can leverage those connections in different conversational settings. One had to be able to talk big and talk big about talking big. I often wondered why, if there was so much money to be made, there weren’t higher barriers to entry, or more danger attached to what was in reality a criminal enterprise, but these questions were often brushed aside or easily answered. The reality is many people in Nairobi had come to believe that this was how money was to be made, and spent a lot of their time chasing such deals. For those with actual direct contacts in government, business, or finance, the possibility of pulling off such deals existed, but they did take bravery, and a willingness to be involved in what was essentially a criminal enterprise and everything that came with that.

 

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I first heard about the money to be made from sugar from my friend “General” Agwati. He was deeply involved in the business at the time I first got to Kenya to begin my fieldwork. As we hanged out, I got to meet many of his associates in the business. Each of them had a specific skill set and as he explained it to me, those numerous skill sets were necessary if one were to make the kind of super-profits that attracted so many to the business. I listed to his stories about his time with a kind of wide-eyed, openmouthed boyish interest. For one, the stories were full of larger-than-life characters, clandestine meetings in darkly lit rooms (well maybe he didn’t describe them that way but that’s how they always felt to me) and the continuous potential for gunplay. Second, the stories were about how to make money in Kenya in an economic climate where money seemed to be everywhere but just out of reach for most, including me. I knew of one group of individuals who seemed to have made money from sugar. But this was never something I could confirm. I accepted it as an article of faith. I met, over several months, the different individuals who had taken part in the deal. And it was explained to me that rather than a short-term venture, the ability to make money from sugar took care and persistence, especially when it came to building the kinds of relationships that allowed people who were actually involved in the transfer of sugar to trust you and to see you as someone who would allow them to make money. It took, in other words, the actual building of social and economic networks and not simply the talk of them. Each member of the group had tried and failed individually or with others to make inroads into the sugar industry, and this particular group each had a specific skill, talent, or network that complemented what the others brought. One leveraged the connections he had made as a financier in the Muslim community to gain access to the sugar barons in Mombasa, another his connections with the Somali families that dominated long-distance transportation in Kenya, and a third, his knowledge of and continued participation in the kiwanja (literally “the field), that undefined area where extra-legal transactions were consummated. The most important attribute each carried with them though was the knowledge gained from other attempts to see the venture through. Stories abounded about sellers who changed prices, buyers who didn’t have money, and interaction with police and

 

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criminal elements eager, and particularly well-positioned, to ensure that some if not most of the potential profits from any deal made it into their pockets instead. Relationships were built up through these attempts and the failures that almost inevitably accompanied them. It was not a business for the faint of heart, and while there was money to be made, there was nothing easy about it, and it exceeded the kinds of interactions that many in middle class Nairobi were willing or able to engage in. Why was everyone angling to get into the sugar business? To answer this question, we need to look at the conditions of possibility that allowed sugar to emerge as a potential site for the generation of super profits during my time in the field from September 2009 through March 2011. There is an urban legend that sugar financed the 1997 election campaign of Daniel arap Moi, then the incumbent President and campaigning for a second and final term in office under the constitutional reforms agreed to prior to the 1992 elections (of course prior to these reform Moi had served had President for 14 years since replacing Kenya’s first President Jomo Kenyatta upon his death). The story is that large amounts of sugar (as well as maize) were smuggled into the country duty free and dumped onto the market. By evading the high import duties (currently at 116%) the dumped sugar could be sold on the market cheaper than locally produced products allowing the product to move faster and more importantly, allowing money to move faster. This last point is extremely important because one other thing that is always noticeable in Nairobi is that money is always in short supply. This is true at the personal level where, as noted before, the performance of a middle class consumer life exists in an almost inverse relationship to the ability of most people who participate in this middle class life to actually afford it. In fact, money-lenders, who operate off the books and charge interest rates on small short term loans whose interest rates regularly approach 30% – 50% per month, and higher, proliferate in Nairobi. And quiet as its kept, large sections of the population regularly turn to them to meet monthly living expenses in addition to financing. This lack of liquidity is also noticeable at the level of enterprise where, moneylenders, again, regularly finance small-scale business transactions. The talk about the existence of money in Kenya, at any level, is starkly contrasted with the actual existence of money in the economy and when it exists, with its accessibility.

 

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So, the dumping of sugar on the market would allow money to flow through the economy in a way that it does not usually and create opportunities to access super profits. It is hard to tell what happened in the lead up to the 1997 elections. The KANU government had previously been accused of printing money to finance the election campaign in 1992 but the effects on the economy of such a move would have hurt the business interests that were at the heart of the patronage networks that government officials – politicians and civil servants alike – relied on to make money in a sustained manner and to support themselves and those with whom they shared their intimate social lives. For this reason, as well as because of external pressures from outside interests – both economic and political – would have made this hard to do again. So, it is more than possible that sugar was dumped on the market in order to create money for campaigns and having been successful once, would have been tried again. Because Kenya is a net-importer of sugar, and because the ports are notoriously inaccessible for those without connections, making it next to impossible to perform any kind of transaction there, including bringing in a crate with personal items from a year spent in school in the United States (as my cousin attempted to do for most of a year after she returned to the country), the structural condition for this kind of market manipulation definitely exists. Like most places where super profits are accessible though, the rapid entry of multiple players into the market would reduce the amount of profit available. What is the possibility then that the kind of money that could be made from sugar in 1997 was still accessible 12 years later? And even more important, what is the likelihood that a business that was hidden from view and the stuff of conjecture 12 years earlier would have been sufficiently transformed in that time so that the average Nairobi resident, with no real connections at either the port or in the commodity market, would be able to access the profits connected to the business. To answer these questions, we need to turn first to a description of the sugar industry in Kenya, and then to an exploration of the social and economic climate that existed in Nairobi at the time of my fieldwork. Following independence, the Kenya government decided to play an active role in the ownership and management of the sugar industry in Kenya. This was done in accordance with Sessional Paper no. 10, “African Socialism and its Application to

 

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Planning in Kenya,” (1965) which laid out the government’s approach to development and sought to accelerate socio-economic development, redress economic imbalances and promote indigenous entrepreneurship. (Kenya Sugar Industry 2009: 1) In pursuit of these goals, the government established five sugar factories to supplement the two that were formed prior to independence when the production of sugar had been dominated by the private sector.19 The difference between the private control of the industry prior to independence and the mostly public control that existed after should not be overstated. The colonial Kenyan government had long protected and subsidized local white-owned agricultural enterprises both through direct subsidies and various tax regimes and a legal system that helped reduce competition, created a cheap labor pool, and guaranteed markets for agricultural goods. What changed after independence was the fact that government itself got into the business of sugar, but as a way of protecting and advancing the same private property regime that existed prior to independence. Government investment in the sugar industry was aimed at achieving selfsufficiency in sugar production while generating a surplus for exports, generating employment, and promoting development in the rural economy. (Kenya Sugar Industry 2009: 1) On the latter points, according to the estimates produced by the Kenya Sugar Board, the government plan has been particularly successful, supporting 250,000 small scale farmers who produce 92% of the sugarcane milled in local factories, employing 500,000 people directly or indirectly in the sugarcane business chain, and an estimated 6 million people deriving their livelihoods directly or indirectly from the industry. (2009: 2–3) In addition, the sugar industry is said to have improved infrastructure in the “sugar belt” in Western Kenya and to be play a key role in the development and sustenance of families and communities in the area. (2009: 3) Where the government plan has been less successful is in its aim of achieving self-sufficiency in sugar. In 2009, a record harvest attributed to good weather allowed Kenya’s domestic sugar industry to produce 548,207 metric tons of sugar. In 2010, Kenya produced 523, 652 metric tons of the commodity. In 2011 production dropped 487,002 metric tons but was expected to rise 552,000 metric tons in 2012 partly due to                                                                                                                 19 “History: The Sugar Industry,” Kenya Sugar Research Foundation, accessed November 22, 2013, http://www.kesref.org/about-us/history/.  

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better crop husbandry. Domestic consumption, meanwhile, was 772,731 metric tons in 2010, 776,000 in 2011, and was expected to rise to 794,844 metric tons in 2012. (Reuters 2012, McGregor 2011) There exists in Kenya, therefore, a structural sugar deficit of over 220,000 metric tons that is filled by imports primarily from countries belonging to the Common Market for Eastern and Southern Africa (COMESA). There are several reasons given for the continued existence of this deficit in spite of continued and recent government attempts to boost production in the local industry in order to protect it. Despite low labor costs and conditions that would be considered naturally advantageous to the production of sugar cane, Kenya’s per hectare production rate of sugarcane is substantially lower, and it costs anywhere from 50% to 100% more to produce a metric ton of sugar, than in any of its competitors in the COMESA region. In Tanzania, which is not a member of COMESA, and Uganda, which is not a signatory to COMESA’s Free Trade Agreement, the cost of production of sugar is even lower, putting Kenya’s sugar industry at a distinct disadvantage in the common customs union currently being implemented for the East African Community (EAC) to which all three belong and in the COMESA free trade area. The factors blamed for the high cost of production in Kenya include the fact that because of the slightly cooler climate of the sugar belt, it takes a sugarcane crop 18 months, as opposed to 12 in the other African producers, to reach maturity and be ready for harvesting. Debt servicing of government-owned factories, poor infrastructure, and poor management have all been blamed for the low productivity and high production costs in Kenya, as has the reduction in size of individual plots reducing potential economies of scale, and the reliance on rain (as opposed to irrigation) to water the crop. (Fengler and Owigi 2012, Reuters 2012, McGregor 2011) For all these reasons, sugar prices in Kenya are extremely high in comparison to those found in other African nations (including those in COMESA and the EAC) and almost double the average price in the rest of the world. Kenya has attempted to protect its sugar industry by placing high tariffs on imported sugar, and requesting market-access safeguards from COMESA that prevent direct competition between sugar imported from COMESA countries and local producers as the latter attempt to restructure their operations in an attempt to expand production while lowering costs. (USDA 2012) The shortfall between local production and market demand for sugar is met by importing the

 

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commodity, both from the COMESA region and from other sugar producing countries, (Kenya Sugar Industry: 2009: 1) a process conducted by government tender. This sugar is imported duty-free. Finally, domestic sugar production goes through specific and predictable lulls. Sugar factories close for maintenance yearly and during this period domestic sugar supply is interrupted. This leads to sugar shortages that are easy to anticipate in an economic climate where supporting domestic production of the commodity is favored over consumer interests like lower prices and consistent supply. It is possible, therefore, to manipulate supply and to artificially raise sugar prices in the interests of guaranteeing super profits. In addition, even during a period of physical rationing and price escalation such as in 2011 caused by shortages of the commodity, the government did not allow increased importation, ostensibly because of a lawsuit challenging the legality of sugar imports from the COMESA region. (USDA 2012: 3) All of this suggests that there is the potential to make large sums of money from sugar if one can somehow place oneself strategically within the commodity chain and take advantage of the periods of shortage when the commodity is unloaded at high prices. This can be done either by taking advantage of the government tender process to acquire a license to import duty-free sugar and release it into the market at times of shortage and high price, or, failing that, especially since the acquiring of these licenses is a question of patronage, to import sugar while avoiding paying duty through other means, allowing you to dump the commodity onto the market, taking advantage of the discrepancy between the cost of production of sugar internationally and the cost of production locally, and the high local prices caused by government protection of the domestic sugar industry. Chepkube, the State, and the Commodity Chain As I mentioned earlier, to understand how the sugar industry emerged during my time in Kenya as a site where super profits could not only be earned but also appear accessible to the average Nairobi resident who heard of these opportunities, it is necessary both to understand how the sugar industry worked and the social and economic climate that existed in Nairobi during my time there. To connect the two, however, it is

 

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necessary also to re-think what politics is and how it works in the Kenyan context. To do so, we need to take a slight diversion to Chepkube, a small trading post in Western Kenya on the border with Uganda. Chepkube has recently re-emerged into the public imagination. This has happened because of the illegal smuggling operations that still occur in this border region, and as a way of providing historical context to a spate of coffee thefts from farms and factories in Central and Eastern provinces where the coffee was smuggled primarily into Uganda in order to take advantage of rising prices on the international market. (Ngobilo and Karanja 2011, Murika 2010) When Idi Amin expelled approximately 70,000 Asians of Indian and Pakistani descent from Uganda in 1972 and distributed their property to his allies and those linked to them in relationships of patronage, the country’s economy rapidly deteriorated. While the extent to which this small population controlled agricultural, manufacturing, and commercial enterprises is uncertain, it is clear that the know-how, resources, and social networks that this group brought to the table was crucial to sustaining the country’s economy. As the economy worsened, and without the effective management of commodity chains, there were increasing shortages of basic commodities, and agricultural produce started to lie idle, preventing farmers and others in the supply chain from recovering their investments or making profits. In the mid-1970s, following a frost that devastated Brazil’s coffee crop, there was an acute shortage of coffee in international markets and prices rose accordingly. Coffee was one of Uganda’s primary exports, yet because of the structural breakdown in the economy, and the ineffective and inefficient management of the country’s economic resources, Ugandan coffee farmers were unable to benefit from these rising prices. What emerged instead was a lucrative trade smuggling Ugandan coffee into Kenya, an illegal trade that started in and worked primarily through Chepkube, for processing in Kenya or sale directly to the international markets. Because of the desperation of the Ugandan farmers, who let go of their produce at throwaway prices, and the avoidance of duty through smuggling, the profits that could be made from this activity were enormous. It is said that many of the Kenya’s foremost political figures and officials of the civil service were involved in the trade. This is extremely likely given the scale that the illegal trade grew to and the fact that the resources to take proper advantage of such an

 

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enterprise and to make sure it was conducted seamlessly at this scale were government officials and businessmen based in Nairobi who had social and economic networks that included each other as well as the necessary local and international contacts to make the business pay. They were not the only ones to benefit though, an enterprise of this size required pay-offs and involved social and patronage networks that brought a significant number of people into its ambit. Many of the multi-millionaires who dot the Kenyan landscape from that generation made their money, or at least a significant part of it during the Chepkube “black gold” rush. Chepkube re-inscribed a way of doing business in Kenya that made use of government and government connections to facilitate profit making. Government in Kenya has a long history of supporting certain economic ventures over others for specific socio-political reasons. The British government made an early choice to support settler agriculture in an attempt to make the Kenya colony pay for itself – using dispossession, co-option and taxation to acquire land for the settlers and to create a cheap labor pool, while also limiting market access for African farmers who could produce certain commodities more competitively than the settlers. The colonial government in Kenya emerged, therefore, partly as a way of structuring and facilitating the various commodity chains linked to settler cultivation. While liberal democratic legal and political institutions were introduced in the Kenya colony in order to both administer the geographic territory and to entrench the rule of law as the logic of government, these processes and institutions needed a material referent, and could only be effected along and through specific material processes. Settler agriculture needs to be understood, therefore, not so much as the raison d’être of the colonial government – although it was that too – but as the specific albeit unstable and changeable set of local and external interests, needs, desires, beliefs, relationships, and processes through which profit could be extracted from settler cultivation, and through which the colonial government took its specific material form. This is not to argue that the colonial government focused solely or in the end even primarily on settler agriculture and the interest of settlers. I am arguing, rather, that the socio-economic factors, and primarily here the social relationships, intimate interactions, and affective concerns, that enabled the settlers, as individuals and as a group, to make

 

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the kinds of connections and claims that allowed them to make money from agricultural production, provided the foundation on which the colonial government was built. The process of governing Kenya, therefore, can perhaps be understood as flowing through channels created by commodity chains that are themselves simply the manifestation of social networks through which value travels and is collected and sedimented in very specific ways. I am also arguing that these networks and the claims that can be made using them, remain key, even though often hidden, to the ability to both understand and make use of government. One last thing about government needs to be drawn out here. If government is understood as the social networks through which value flows, it is necessary to focus on how government works as a social rather than simply as a legal or political constellation of institutions, processes, and beliefs. Government needs to be understood first as made up individuals who see themselves as belonging to various collectives with sometimes intersecting and sometimes conflicting and contradictory purposes, practices and strategies that these individuals engage with in uncertain, unstable, and dynamic ways. While Chepkube did not herald the arrival of spectacular accumulation in Kenya, nor was it the first, or most prominent, instance of how social relationships worked through government to create the patronage networks through which money flowed. It did however reveal the extent to which the specific channels created during the colonial period to extract value from agricultural commodities remained central to the production of government in Kenya, and how these channels offered opportunities to reinforce and entrench one’s economic and political station as long as one had the kinds of personal contacts and relationships that could activate and direct specific social networks towards this end. While colonial hierarchies were the objects of the post-independence interventions planned by nationalist leaders, and aimed at all manner of social and economic inequalities – interventions that were expected by a newly independent African citizenry – these hierarchies were increasingly transformed into concepts disembedded from their social and material production. This was done in order to attack colonialism at a more general level – as something morally repugnant and against the ideals of liberty and equality on which liberal democracy was built.

 

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Colonialism was understood by these nationalist leaders, or at least sold to the public, as a system of governance, imposed from outside, that relied primarily on racial classifications to reserve and direct resources to specific individuals and groups of people, rather than as a specific way of assembling, categorizing and ordering the set of socio-material processes through which those resources were created. For this reason, it was possible to see colonialism as something that could be replaced. Even in the aftermath of independence, when it became clear that colonial practices and hierarchies survived and continued to order the distribution of resources in Kenya, the sense was that it was the colonial government that had yet to be completely replaced rather than that the nation-state and its government were themselves irretrievably colonial products. The difference in these two understandings turns on how colonialism is linked to socio-material processes. On one hand, colonialism is seen as a system through which independently occurring socio-material processes can be categorized and organized. On the other hand, colonialism is seen as a system through which a system of categorization and organization is used to bring socio-material processes into existence. The content of colonialism was not so much found as made, and it involved a competition between, appropriation from, and the suppression of different ways of knowing and of organizing socio-material processes. This way of thinking about colonialism mirrored precisely the form of the colonial project – where an administrative process was superimposed on a collection of varied material and social processes in order to make them accessible to centralized bureaucratic power. This administrative process privileged the ability to produce knowledge about local conditions that was actionable by a central government. Local knowledge, therefore, was domesticated for use as the source of a claim to state power. Knowledge was the real object of government here, and particular local and material conditions only appeared within knowledge to the extent that they could be domesticated and utilized by a centralized bureaucratic authority. The struggle against colonialism, therefore, only ever focused on the local, the particular, and the material to the extent they facilitated production of a centralized and systematized bureaucratic authority based in Nairobi through which the local, the particular, and the material could be organized and managed.

 

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The knowledge making process was also crucial to how the various socio-material processes that shaped Kenyan government continuously retreated from view. While the desire to support settler agriculture was directly responsible for the decision to impose a centralized bureaucratic authority in Kenya – in the form of a colonial government – this authority relied on a language of law and right to legitimize its existence. The idea of law that was offered as the central defining characteristic of this new mode of government, and that helped determine the scope and limits of its authority, had a history. It emerged out of the struggle to create, define, limit, lay claim to, and make use of liberal democracy in various, and often competing, social, economic, and political projects. Yet the rule of law was presented in the Kenyan context not only as a de-historicized concept that could be utilized without referencing those projects and understanding how they would shape and limit the liberal democratic project in specific ways, but also as a way of drawing attention away from the very particular socio-material processes that were the foundation of government in Kenya. These socio-material processes, however, are always hidden in plain view. And where history might fail to precisely fill in gaps about the particular social, economic, and political processes that shaped the production of government in Kenya, an anthropological analysis that focuses on excavating the channels through which value flows, might offer insights as to which processes continue to shape how government is made, and how these processes work. Colonial government in Kenya emerged in order to support and protect settler agriculture in Kenya. This government made use of the rule of law as a way of legitimating, naturalizing, and disappearing the socio-material processes that allowed value to be created at particular locations, amplified by particular actions, and directed towards particular locations, people, and projects. These socio-material processes included intimate interactions, affective behavior, and social relationships shaped by and experienced through the production and exchange of particular commodities and material culture. Government, however, was more than the specific institutions and processes through which law was made to work in the interests of socio-material exchange. It was also an exercise in knowledge making that determined the form and the content of the socio-material processes and conditions that were available for use by a centralized

 

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bureaucratic authority. This authority organized the social and material world in order to create the object of its administrative power, an object that was, and is, essentially, administration itself. What Chepkube revealed, first, was the fact that the commodity chains that organized the production and exchanges that were at the root of government power in the colony, still remained a particularly effective and efficient method of creating, amplifying, and directing value flows in the interests of accumulation. Second, it showed that the channels through which this value flowed had the direct effect of expanding government authority. By this I mean that the bureaucratic authority produced as the socio-material processes and conditions that made Chepkube possible, were organized, categorized, and made accessible, if not necessarily amenable, to centralized administration. The idea that coffee was flowing across national borders and through local production … allowed this process to emerge as an “illegal” activity that denied revenue to the people of both Kenya and Uganda and that made a mockery of liberal democratic ideals. Chepkube was only one particularly memorable example of how wealth could be made in Kenya. What it did was re-inscribe the importance of particular socio-economic and political channels to the production and deployment of capital in Kenya. Two of those – formal education and the operation of government bureaucratic power – were also of particular importance to the process of Africanization that immediately followed Kenya’s independence, and were central to the more mundane processes through which this wealth, and the opportunities that were attached to it, got distributed. With the shift to majority rule in Kenya, educated Africans had opportunities to work in the civil service and to make money in the private sphere through their connections in the civil service. Government, and specifically here government bureaucracy, became the path to wealth and social status. The acquiring of government contracts was especially lucrative and this necessitated contacts in the civil service where the day-to-day of government is administered. While there has been a tremendous focus on reforming political institutions in Kenya, the civil service has largely been seen as creature of national government and of politics rather than the other way around. It is, however, instructive to note that despite the liberalization of Kenya’s economy in the

 

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1980s and 1990s in accordance with structured adjustment policies, it proved almost impossible to reform the public sector, to reduce government expenditure on social services, or to reduce the size and importance of the civil service in line with the precepts of these policies. And while academic scholarship and popular discourse focuses extensively on the role “politicians” play as the drivers of public sector “corruption,” it should be noted that these politicians are often either unaware of or simply co-opted into the patronage networks that run through the civil service and that both precede and survive these politicians and their time in political office. Scholarly research into the production of the state in Kenya, and its relationship, in particular, to agriculture, has regularly highlighted both the extent to which state formation relied on the processes through which “capitalist” production came to restructure local socio-material processes of production as capitalist and liberal, (Trench 1993, Berman and Lonsdale 1992, Clough 1990, Wasserman 1973) and the intractability of the colonial system, especially in light of land-tenure reform after independence (Deininger and Binswanger 1995, Kitching 1980, Leys 1974) and structural adjustment policies in the 1980s and 1990s. (Akiyama et al 2003, Jayne et al 2002, Rono 2002, Dollar and Svensson 2000) My interest here is in re-linking state formation to state building in a way that brings to light the various, and particular, social and material processes through which the Kenyan state has constituted itself. My purpose is to suggest, therefore, that if anything, the “deep state” is the system of production through which the concept of “Kenya” that reform relies on to constitute its political project, emerges as something knowable and actionable. Berman and Lonsdale argue: Conquest enlarged African power as much as it redefined it as European. There was continuity as well as disruption. State-building could not be a wholly destructive process. The British conquerors had to create a new high politics, a hierarchy of self-interest, out of existing networks of authority. African leaders may have been forced to carry unprecedented burdens, but they had also to be allowed new means to pursue old interests. … [The] embryo state was not only built, as a deliberate means to contain and direct power for the benefit of the few. It was also formed out of the anonymous actions of many. In evading servitudes ancient and modern the weaker members of African society used novel forms of association to regain old personal freedoms. However unwillingly, the state protected these subversive young ways of common life and labour as much as it fostered fresh privilege. State-formation – the vulgarization of power, and statebuilding its cultivation, were contradictory processes that complemented each

 

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other. This was because conquest was not only a political process but also an economic force. It made room for both the oppressive and corrosive tendencies of propertied capitalism. Colonial rule entrenched power; it also enlarged markets. … The violence of conquest was thus never quite complete. It was to be repeatedly renewed in Kenya’s subsequent history. Men of property and power would always demand new forms of protection whenever they discovered, yet again, that the could not appease the resentful ingenuity of the people, except by letting slip some of the existing privileges by which capitalism was sustained locally and made profitable to backers overseas.” (1992: 14–15, emphasis in the original)

These “protections” and “privileges” have continuously re-emerged through an iterative process that marks state-building and state-formation as contradictory and complimentary processes through which value is created and distributed in Kenya. In fact, it is the repeated illumination of the contradiction at the heart of the political process, and the efforts made to contain it, that animates and fuels the machinery of capitalist production. The business of the business of sugar (and deal making more generally) appears in the social and economic context in which the middle class becomes constitutive of the social in Nairobi, and by this I mean the context in which a middle class (re) emerges as the embodiment of the attempt to contain the contradiction that is at the heart of the political process within a liberal symbolic system. Middle Class Economics Following years of economic stagnation and decline, changes to the Nairobi landscape accelerated in the years following the NARC (National Rainbow Coalition) victory in the 2002 general elections. For lack of a better description, Nairobi became brighter – not least because of improved street lighting in and around the Central Business District – and with this brightness came a renewed sense that anything truly was possible without Moi20. Change itself became the driver of change in Kenya, and one started to continuously expect improvement, be it to the country’s infrastructure, the political culture, or the social and economic conditions in the country. There was a rapid expansion of consumerism, driven in part by the unleashing of economic and social                                                                                                                 20 Echoing a refrain, “yote yawezekana bila Moi,” that was common at the time.  

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capital that had been kept latent in the decade prior to NARC’s victory by government policies structured around attempts to accumulate and distribute wealth in the form of patronage that were necessary to the preservation of political power and with it the ability to accumulate wealth. This desire, acting as a kind of prime political objective, filtered down to all levels of Kenyan society. Structural adjustment, which had been a condition for the provision of funding to the government since the early 1980s, took on new meaning after the Fall of Communism when donor countries and agencies, no longer fearing geo-political destabilization in the area would provide a gap where the Soviet Union could make inroads, could hold the government’s hand to the proverbial fire when seeking these economic reforms. At the same time, the release of suppressed opposition to these governments, mostly organized around a push for liberal rights and democratic reform, meant that there was an increased need by the government to distribute pork in order to maintain political power. It was in the political and economic climate in the last ten years of President Moi’s rule – when after the return of multi-party democracy and the initiation of the reform process – that the distribution of pork directly through government was increasingly necessary to the ability to sustain power and influence and that these large deals became possible and became important ways of accumulating wealth. Government contracts were regularly awarded for projects and purchases that were ultimately designed to facilitate the transfer of funds from the Treasury to politically connected individuals and their allies. This was partially made possible by the demands of structural adjustment and economic liberalization, as government officials and politically connected individuals had a cover – government divestment from several industries – under which to conduct these deals. This was especially true as the effects of structural adjustment policies – caused most notably by the required withdrawal of government support for, and intervention in, various commercial enterprises ranging from agriculture to manufacturing and the provision of utilities in an economy, and a social structure, built around such interventions – started to hit home. This was true for all those who had relied on the government-based economy, and the social networks that people built and invested in to allow them to benefit from that economy, to support their lifestyles.

 

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The middle-class was especially hard hit. I heard about this first-hand, albeit from a distance since I was in college in the US, from my family and friends. There were roll-backs in all kinds of spending, the downsizing of family homes, and a reduction in job opportunities that left many of my peers living at home with their parents, unable to afford to move out or to support their own families without assistance. It wasn’t just the middle-class that was hurt though. The incomes earned through the patronage networks directly connected to government support for various economic activities filtered through to all segments of society by creating and sustaining the various patronage networks that linked people to each other in intimate and affective interaction. More importantly, the efforts made to restructure Kenya’s government-focused economy not only caused bottlenecks in the flow of income through society, but also restricted the opportunities available to perform middle-class identity in Kenya. This too had a significant recessionary effect, first in Nairobi, where the kinds of consumption linked with middle-class displays were largely (although not exclusively) centered, and then throughout an economy that was increasingly built around the provision of services and a country that was linked through flows of capital and income from urban to rural areas. New uncertainties were created around people’s positions in the various patronage networks linked to government – now more important than ever as the amount of capital in the economy, which would flow through these networks, was limited by structural adjustment policies – and the ability to leverage these positions to generate income. This created a situation where the need to position oneself to benefit from this new distribution of pork took on great urgency. This urgency was probably the proximate cause of what seemed to be a breakdown in the social fabric of the country, especially in what became known as “Nairobbery.” Infrastructure broke down at an alarming rate with no money forthcoming to maintain or replace it as it aged, and crime increased exponentially, the result of criminal networks whose sophistication suggested the investment of large amounts of economic and social capital by those who had that capital to deploy in what was clearly a relatively safe investment given the lack of resources availed to a chronically undermanned and underpaid police-force.

 

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With KANU’s removal from power, the Kenyan economy reignited, but why? It has been suggested that this was due to the NARC government’s commitment to policies such as the opening up the Kenyan economy to global financial flows, increased government divestment from the provision of goods that could more competitively be supplied through market mechanisms, and decreased intrusion into the private sector. Also of importance, were improvements to infrastructure and administrative changes meant to make government more transparent, effective, and accessible. However, it could also be argued that the changes in the economy were tied to increased capital flows from the developed economies and especially the release, by the World Bank and IMF, of funding that had previously been held up pending changes in government around a commitment to liberal democracy. It cannot be argued that the KANU government under President Moi had not committed to structural adjustment, the drying-up of opportunities to create middle class livelihoods that were based on an economy built around government, is direct evidence of that. The withdrawal of support by the KANU government for agriculture was sudden and far-reaching as was its divestment from several industries it monopolized or otherwise controlled or supported. The NARC government (and its successor, the PNU government) has actually intervened in the markets for several commodities – most noticeably and directly in agriculture – reversing changes occasioned by structural adjustment. For this reason, it is hard to argue that it was a renewed commitment to these policies that caused the changes to Kenya’s economy. It is far more likely that what appeared to be a renewed commitment to the institutions and structures of liberal democracy under the NARC government, allowed Kenya to reclaim the kind of favored nation status that would facilitate the release of financing from donor nations and the Bretton Woods organizations. Another reason given for Kenya’s economic growth, the tourism industry in Kenya also seemed to be rebound post-2002. This was probably spurred by improvements in security and more importantly by changes in how the security situation in Kenya was covered by the global media and how Kenya was viewed internationally more generally. However, the importance of tourism to Kenya’s economy had continued to grow throughout the latter years of the Moi government and it is unlikely that a sudden

 

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growth in revenue from tourism spurred the country’s growth. Also, it is clear that increased domestic tourism – and the reorganization of resorts, hotels, and conference facilities to cater to these domestic tourists – was at least partially responsible for the growth of revenues from tourism. There has also been a lot made of the size of remittances made by Kenyans who live abroad and the fact that these remittances are a major source of foreign exchange for Kenya. While these continue to rise and are a significant source of household income in Kenya, there have always been such flows of money, and their importance to household income was probably no less important during periods of slow economic growth. It seems apparent that while both these factors may have played a role in Kenya’s economic growth, they are not sufficient, even when taken together, to explain why Kenya’s economy took off after the NARC government came to power. The contention that changes in the policy climate created increased opportunities and protections for domestic and foreign investment also seem to be belied by evidence that the NARC government, while instituting its neoliberal development master plan, Kenya Vision 2030, was no more accommodating, and probably less so, than the previous regime to the restructuring of Kenya’s economy along the lines of the Washington Consensus. It seems far more likely that two factors, which at first blush seem completely unrelated, were responsible for this economic growth. As argued above, the first has to do with the release of financing to the Kenyan government by the major donor nations and the Bretton Woods organizations, the opening up of international markets to Kenyan goods, and renewed investment and focus on Kenya – on both a social as well as an economic level – by foreign interests. Kenya’s place in the global geopolitical order is partly a result of economic considerations – including liberal economic reforms – and partly a result of social and politico-social considerations, including public opinion in these foreign countries, an opinion largely shaped by the views of expatriate and domestic Kenyan professionals who have had the opportunity and have the wherewithal to create and maintain transnational networks and friendships. These professionals help produce and reproduce a transnational middle class ideology and belief system that imagines the world as flat and has a liberal but also human rights inflected view of what the world should look like and what kinds of

 

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commitments national governments and international agencies and organizations need to make to create or sustain that world and that world view. The renewed commitment to Kenya had been contingent on changes made by government to show a commitment to liberal political and not just liberal economic ideals. Most importantly the Kenya government was expected to slow official “corruption” in Kenya. However, this is at the very least a problematic category, as “corruption” can be seen simply as a social and economic acknowledgment of the place of patronage in structuring Kenya’s economy and society, and the place of government in economic production. This is especially important if one considers that the Kenya government has continued to grow in the period since 2002, and especially in the period since the new constitution was promulgated in August 2010. The government remains the largest single, and therefore the most significant, economic player in the country. The changes to government brought about through the new constitution only increase the role to be played by government in making wealth accumulation possible by the educated, professional, cosmopolitan middle class that are considered to be the engine of Kenya’s society and economy. This middle class is reliant on employment and on entrepreneurial opportunities created by government, government contracts, or the on non-profit sector, for income. The non-profit sector in Kenya has developed largely to supplement or perform the kinds of socioeconomic interventions that have come to be thought of, as part of the role government should play, and either fails to play or does so inadequately, in a place like Kenya. The release of financing to the Kenyan government, and its embrace by international markets and foreign nations, occurred simultaneously with what I consider to be a second important factor to the increasing growth of the Kenyan economy – the unleashing of latent middle class potentiality. An article published in one of Kenya’s leading daily newspapers, The Standard, reported that a Gallup International end-of-year survey in 2002 had concluded that Kenyans were the most optimistic people on earth.21 The poll was taken around the 2002 elections that marked the end of President Moi’s reign and that brought the coalition NARC government to power. I visited Kenya for                                                                                                                 21 Nzioka, Rose. 2003. “Kenyans Most Optimistic People on Earth, Says Survey.” The Standard, January 21. http://allafrica.com/stories/200301210193.html  

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three months in June through August of 2003, where I interned for the Kenyan Human Rights Commission under its Chair Makau Mutua, where I helped investigate the terms of reference for a Kenyan Truth Commission (though at a substantial remove from the process itself since my role was basically to compile and analyze newspaper reports). During this period, the National Constitutional Conference was being held at the Bomas of Kenya, part of the new government’s commitment to finally creating a new constitution. By the time of my arrival, I had not visited the country for about six-and-a-half years, since midway through my junior year of college, and I was continuously reminded both of how much Kenya seemed the same, and how much had changed. In spite of the optimism noted by the Gallup Poll, I was struck by how fears of insecurity marked the movements of many, and that when I found myself driving at night, that by 9:00pm I was regularly the only car on many of the roads that connected the home I had grown up in to my social and intimate obligations around the city. Once, upon leaving a play at the Phoenix Players in the City Centre (it couldn’t have been more than 7:00 or 7:30), I slowed to a stop at the traffic light at the intersection of Kenyatta Avenue and Uhuru Highways, and my companion, almost in a panic, asked what I was doing, reprimanded me, and told me never again to stop at a light after nightfall. Many of my friends and peers were still or back living at home, and the city lacked some of the spark that I had earlier associated with it. Neighborhood bars, strictly prohibited when I was growing up, had mushroomed. And visiting one that had come up near my childhood home, I was struck by the lack of motivation that seemed to sit over so many in the place, weighing down on shoulders stooped over the well-known brown bottles that beer came in. After meeting some old acquaintances from the neighborhood, where enthusiastic greetings and fond remembrances were tied to requests to buy a round or two, I quickly took my leave, uncertain where the enthusiasm for Kenya I kept reading about was. There was definitely enthusiasm tied to the political changes in the country. The departure of Moi and of KANU struck many as a new dawn and a change to get back to the promise Kenya held at independence and in it’s early years as a nation. A new constitution was meant to create an infrastructure for change and Kenyans paid careful

 

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attention to the goings-on at the constitutional conference. In addition to the constitutional conference and the Task Force on the Establishment of a Truth, Justice, and Reconciliation Commission, which was going around the country collecting views, Kenyans were also enthralled by the Judicial Commission of Inquiry into the Goldenberg Affair, which became appointment television. The Goldenberg scandal involved a whole series of transactions that involved the irregular transfer of government funds but it was best known as an export compensation scam for gold exports that turned out either not to exist or to be far less substantial than the level of compensation would suggest. It was then considered the largest financial scam in Kenya’s history, while in reality it was just probably the most notorious. The Inquiry gave Kenyans an inside look at the patronage networks that linked private enterprise to public finance in Kenya and to the social networks and relationships that underlay them. A large number of high-ranking officials in Moi’s government were implicated in the scandal. Many of these officials, because of the politics that surrounded the defeat of KANU, were still in government positions at the time the inquiry took place. It is important to note also that the scam took place largely in the years 1991 to 1993, right around the 1992 election period, the first elections in Kenya since the return of multi-party democracy. There were, however, more and more signs of the enthusiasm for Kenya, and especially for its economy, with each subsequent visit I made to the country. Nairobi, especially, changed rapidly, most noticeably when it came to the number of options that were increasingly made available for entertainment, and for conspicuous consumption. Suddenly, because of a renewed and increased availability of the kinds of jobs that an educated, professional, middle-class is trained for, there was an increase in the types of activity and consumption that members of this middle-class relied on to perform and constitute these middle-class identities. The expansion in this consumer lifestyle also created jobs and opportunities in other sectors of the economy, especially the service industry, which has continued to outpace other sectors in terms of size.22 This is                                                                                                                 22 According to The World Factbook, (CIA 2013) services accounted for an estimated 61% of Kenya’s GDP in 2012. According to the Kenya National Bureau of Statistics, service industries combined for 62% of Kenya’s GDP in 2010.  

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especially true in Nairobi, where employment in agriculture, which continues to account for three-quarters of all employment in Kenya (CIA 2013), is largely absent. A real estate boom was also born out of the increased need for middle-class housing in the city. Areas of the city previously zoned for single-family housing were rezoned to allow the construction of apartments. And as the city council started zealously collecting on rates it was owed by many of the owners of middle and upper-middle class homes, in addition to the increase in rates payable in the re-zoned neighborhoods, more and more home-owners chose to either sell or if able, to develop their land to allow them to collect rents from the apartments they would put-up. The availability of financing for these real estate developments, allowed for the capital that had been stored-up in real estate to be released into the economy. While it is impossible to show a precise chain of causality between all the elements I have listed above, my intention is not to do so but rather to open up a way of seeing that disturbs accepted truths about Kenya and reform. By historicizing some of the concepts that have been employed in the reform-era by activists and governance experts, we can begin to see how numerous contingent and unstable social and material practices are implicated in the production of Kenyan society, its politics, and its economics. Rather than accept the teleological narrative offered through the reform concept – teleology that by its nature culminates in the triumph of the beliefs, ideologies, and social practices of those responsible for its production and reproduction – I offer a historical and anthropological analysis that reveals how this narrative was created, how it came to be legitimized, who it benefits and how, and the social and material processes that are implicated in its creation. What is clear from the historical record is that reform, as both a concept around which governance could be understood, and a practice through which it was possible to compete for state power, gained currency in the wake of two global changes that reinforced each other. First, was what has come to sometimes be referred to as the Washington Consensus, and which references the set of policy reforms designed to increase macroeconomic stability and global economic integration designed by the US                                                                                                                 http://www.knbs.or.ke/Growth%20of%20Gross%20Domestic%20Product%20by%20Act ivity%20at%20Constant%20Prices%202006-2010.php.  

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government and the Bretton Woods institutions that were forced on developing countries through structural adjustment programs. Second, was the fall of communism, which changed the geopolitical calculations that had ensured support for illiberal administrations by Western governments. The liberalization of the Kenyan economy, along lines set by the Washington Consensus and forced on Kenya by the World Bank, IMF, and donor nations, the increased political space that followed the repeat of Section 2A of the constitution which had made Kenya a one-party state, and the expansion of media freedoms precipitated by both these occurrences eventually led to an expansion of the middle class in Kenya. This was especially true after the NARC government took power with the swearing in to power of President Mwai Kibaki on December 30, 2002 and Kenya’s economy started growing at faster and faster rates. The rise of the middle class, however, was not tied simply to increases in the size of the economy. Importantly, the ability to perform middle class identity expanded with the influx of cheap, second-hand clothes from the west (mitumba), cheap second-hand vehicles from the East (Japan and Dubai) and finally cheap consumer items from China. Suddenly more and more people could look and act the part of a Kenyan middle class. This led to an expansion of economic opportunities that were tied to the ability to dress and act a certain way or to access a certain area. The expansion of education opportunities – through free primary education, the creation of parallel programs at the national universities, which more than doubled the number of students who could attend these schools, the creation of more and more institutions of tertiary education – allowed more and more individuals to seek professional employment and to live the lifestyle of a modern professional. With more and more people seeking to live the life of the modern professional, employment in the service industries also grew, again allowing more and more Kenyans to attempt to perform middle class identity. If these performances of identity are understood in cultural terms, as a menu of activities, desires, habits, and needs that allow individuals to understand themselves as, and act out their responses to, being Kenyan, African, middle-class, modern, progressive, educated or as members of a global society, then it is possible to understand why the middle class expands and contracts in relation to wealth and to disposable income.

 

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The middle class here is directly related to the availability of resources that allow one to access the locations where this identity is performed. Whether that location is a house in one of the wealthier suburbs of the city, a car with which one can navigate the city or easily reach beyond its limits, coffee at Java, dinner at Osteria23, afternoons at Blankets and Wine24, weekend getaways in Naivasha25, drinks at Gipsy, dancing at Galileo, Sunday mornings worshipping at Mavuno26, or having the ability to act out middle class identity as a negation of any combination of these locations, access is key and is mediated through the availability of a number of social and economic resources. Social divisions, therefore, are not tied perfectly to income, occupation, or pedigree. Instead, they can be understood as tracing the ability to perform, within certain social parameters – linked for example to age and gender –, the habits and behaviors that indicate that one belongs to a specific society. These performances can be intended to negate belonging, but are still linked to the menu of choices availed to members of that society to indicate acceptance or rejection. What can be observed in Nairobi, is the extent to which middle-class identity shapes what is commonly understood to be Kenyan, revealing that more than a socioeconomic or political grouping of individuals who exist in a common place, and with common interests, in relation to each other, to other socioeconomic groups, or to the state, middle class is best understood as a way of being Kenyan.

                                                                                                                23 A high-end Italian restaurant with several locations in Nairobi 24 According to their website, “the premier afro-based picnic styled music festival in East Africa designed to showcase genres of afrocentric music. Every first Sunday of the month, audiences are actively encouraged to drive down to the venue with a Maasai shuka, blanket or kikoys; a picnic chair; some wine; a picnic basket and their preferred company and proceed to share in this music and lifestyle experience.” http://blanketsandwine.com/about-us/ 25 A town on the outskirts of the Nairobi metropolitan area renowned as a place for personal and business getaways 26 A large non-denominational church housed in a permanent tent off of Mombasa Road that is popular amongst young professionals  

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SECTION TWO: THE SPIRIT OF THE LAW The Setting Over the next few years, there will be much work required to put into effect this New Constitution. We shall need to reform the judiciary, draft the required legislation and establish new courts such as the Supreme Court. We shall need to infuse our laws and practices with the spirit of the New Constitution. All this is work to be done by you. You will draft legislation and comment on reform initiatives, you will interrogate the New Constitution, you will consider ways and means by which all Kenyans can access justice, you will engage in legal aid and pro bono legal services as a way of giving back to the public and increase access to justice, you will campaign for simplified rules of procedure, you will use the courts to advocate for the rights and freedoms guaranteed by the constitution. You will defend the New Constitution. Just as getting a new constitution was the passion of our times, implementing the New Constitution in word and spirit may very well be the passion of yours. This is no time to relax, live the passion of your time. - Speech delivered by Githu Muigai27 on behalf of the Law Society of Kenya on the occasion of the admission of new advocates to the roll at the High Court of Kenya on 28™ October 2010

An investigation of the constitution-making process in Kenya and the context in which it has occurred, would first reveal its middle class nature, understood as a location for meaning making, and how this meaning making links to, and reveals, the underlying relations of production around which Kenyan society is organized. This would require us to understand how liberalism, as a symbolic system, provides a way of objectifying, and making available to meaning, the “spirit” that allows a democratic community to regenerate around the fundamental values of democratic society and in response to its specific socioeconomic circumstances. Second, the constitution-making process would reveal the particular processes through which the “spirit”, once objectified, is made visible and available for use in symbolizing value. The next three chapters of this dissertation reveal the particular process through which a constitution-making process, organized around liberal rights and the demand for                                                                                                                 27 Current Attorney General of Kenya (2013) and a former commissioner of the Constitution of Kenya Review Commission; at the time he gave this speech, he was Senior Partner at Mohammed Muigai Advocates and an Associate Professor at the University of Nairobi School of Law  

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government reform, emerged out of a professional middle class and became the language of governance. These chapters also reveal how the process of writing a constitution necessarily reproduced the class distinctions that underlie the social inequalities that the constitution-making project is aimed at undermining. The process of having “experts” locate “the people” emerges out of a classificatory and classifying system that ensures that social hierarchies built around social and physical location, the possibility of intimacy, and the importance of status distinctions are reproduced. *********** When I visit Professor Muigai at his law office to interview him for my research and to talk about his role in the constitution-making process, I ask what he had meant when he talked, in this speech, of “the spirit of the New Constitution.” In response, he directs me towards his own time as a law student, saying that when he studied law, “constitutional theory was about the spirit of the constitution. The constitution, after all is a written document; it is a law like any other. There are straightforward provisions in the constitution that can be interpreted literally, and there are ambiguous provisions as well that are capable of multiple interpretations. For the latter, we need to look to the spirit of the constitution for interpretation.” For Professor Muigai, “spirit” and “theory” are not only linked but actually constitute an identity. He asks me to “think of political theory as a fountain: something that allows us to understand what it is a political community seeks to achieve when it draws up a constitution, and how to be true to [that community’s] political values.” Breaking up, as he did in his speech, the constitution-making project into two distinct phases – constitution design and implementation, he says, “Constitutional design asks what are the fundamental political values around which political society has been created. These are freedom, equality, and democracy (representing political will). It is necessary to try to read these values into the constitution. When interpreting it, make sure to deliver equality of individuals, communities, genders, and disadvantaged groups.” Implementing the constitution, which he described in his speech to new advocates as the “passion” of their time, is, therefore, about interpreting the “letter” of the law in a

 

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way that allows us to read liberal democratic values – freedom, equality and democracy – into the constitution. To do this, he adds, “We need to develop serious constitutional theory.” This is because “the philosophical assumptions that underpin the constitution are assumptions about the nature of democracy and assumptions about the good society.” While “people believe that the purpose of the constitution is to deal with every conceivable political and socioeconomic problem. This is a fallacy. The truth is it must remain an inspirational document, providing a fresh vision of the good society for each generation.” It is “the print that generates the spirit.” Professor Muigai draws a link between “theory” and “spirit” that directs us to read liberal democratic values into the constitution. This is because these liberal democratic values represent views about the “good society” that are held by the political community out of which the document emerges. As he adds, “the value of constitutional theory is in designing constitutions that respond to the fundamental values of democratic societies and respond to the specific socioeconomic circumstances of each society. Theory is used to achieve an interpretation of the constitution that is coherent, consistent, and that has fidelity.” But it is liberal values that give this constitution coherence, consistency, and fidelity. However, Professor Muigai cautions that even though “when we write a constitution, we are legislating a vision of both economic and political society,” the document’s primary importance is as an “inspirational document.” Because “doctrines, such as the doctrine of equality, … shift over time,” the constitution’s primary job is to allow each generation to access the “spirit” of the document, and to generate “theory” that allows it to understand and channel its political values in creating a “fresh vision of the good society.” Professor Muigai provides us with a structure through which we can begin to understand the constitution-making process in Kenya as well as the larger project of reform that it serves as the primary vehicle of. The constitution-making process in Kenya can be understood: (1) as a process through which a particular political community attempted to discover, understand, and actualize its political values and its visions of “the good society”; (2) given that “the philosophical assumptions that underpin the constitution are assumptions about the nature of democracy and … about the good

 

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society,” as a process through which liberal democratic values function to define and delimit this political community; (3) given these first two points, as a process through which liberalism, as a symbolic system, provides a way of objectifying, and making available to meaning, the “spirit” that allows this particular community to regenerate “around the fundamental values of democratic societies” but in response to its “specific socioeconomic circumstances.” Implementation is the key to these three processes because implementation is the path through which the “spirit,” and the “theory” that gives access to this spirit through the constitutional document, must be given objective life. Constitutional design is fine but is ultimately meaningless if the constitution, and the liberal democratic values that underpin it, do not become the way in which Kenyans come to understand and construct their community as a “good society.” Implementation has indeed become the watchword of the reform process since the promulgation of Kenya’s constitution in August 2010. What Professor Muigai offered in his speech was a restatement of a view that has come to be held by many activists in the civil society and reform circles out of which the constitution-making project emerged. This view has arisen as a pragmatic response to what these activists see as the repeated attempts by politicians to scuttle the process of reform. Yash Pal Ghai28, former Chair of the Constitution of Kenya Review Commission (CKRC), tells me in an interview held in the wake of the promulgation of the new constitution (and a month or so before my interview with Professor Muigai) that the “CKRC was the first commission in the world to focus strongly on the process of implementation [and that] this [focus] has survived in the current constitution, especially with the emphasis on the government’s role in implementation.” He indicates that this focus on implementation came out of an acknowledgment that, “Constitutions can’t do much on their own. They provide opportunities, give rights, emphasize national identity                                                                                                                 28 Professor Emeritus of Constitutional Law at the University of Hong Kong, Legal and Human Rights Scholar, Constitutional Expert who has advised on constitutions in Nepal, Iraq, and Papua New Guinea, and one of the founders of the Katiba Institute which “was established to promote the understanding and implementation of Kenya’s new constitution.” (Katiba Institute website http://www.katibainstitute.org/home/aboutus/katiba-institute)  

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… but after this, everything depends on government and society and different groups working towards these goals.” But he also mentions that while “constitution making is a political act, politicians take this [in its narrowest sense] to mean that they should be in the driving seat and that they know how to run a country. So while “there is a tension between current government practices and those espoused by civil society (which are drawn from international legal and political instruments and Western political values) [that] could be a productive tension, our politicians have felt they are on very strong ground and can act with impunity.” The first time I ever saw Professor Ghai in person was actually in 2003, at an event organized by the Task Force on the Establishment of a Truth, Justice and Reconciliation Commission, to which I was attached during my internship at the Kenya Human Rights Commission. On that occasion, Professor Ghai took the opportunity, during the public comments portion of the event, to go off at length, and until he was repeatedly interrupted, on how the government had frustrated the review process, including the national constitutional conference that was being held at the same time. Seven years later, he casually remarks that “working with CKRC got him into heart of government [and that] he learned a lot about good and dark sides” through the process, but it is clear now, just as it was then, that the need to prevent politicians from pushing their weight around, is seen as central to the reform process in Kenya. Professor Ghai, therefore, adds another layer to the constitutional puzzle that Professor Muigai laid out for us. This layer points us to the tension between civil society activists and politicians, a tension that in one sense is between government practices as they already exist on the ground and the practices that exist predominantly as ideas and that are drawn from “internal legal and political instruments and Western political values.” Part of the problem here is that “NGOs don’t represent anyone; they represent ideas,” while politicians often represent only themselves as constituents. Ghai argues, “In a process in which stakes are high, wide participation in the process is necessary,” and that it is necessary, therefore, “to provide a framework to allow for the engagement of people.” The question as Professor Ghai sees it is: “How do you balance the various constituent voices, [especially where there are] voices that are often inchoate?”

 

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Proceeding to lay out the various stakeholders in the constitution-making process, Ghai provides a way of breaking down further this tension between civil society ideals and government practices, and of understanding the difference and links between the activists and politicians who constitute themselves around this tension. On one hand, we have people who know what society they want but no access to structures that would allow them to create it. On another hand, civil society and NGOs have an important contribution to make because they understand international instruments etc. but have an uncertain constituent base. On yet another hand, politicians as a class have very little vision for the country or about national values etc. Instead, they are concerned mostly with institutions – such as electoral systems – and not values. The final group is the experts – constitutional experts, experts on land, public finance, culture, etc. Modern constitutions are very wide-ranging, not just concerned with state institutions. Finally there is the international community, especially the United States.

The political community that Professor Muigai described earlier, is, therefore, when seen through Professor Ghai’s assessment of the political and socioeconomic landscape, saturated with social hierarchies, with inequalities of access, and with competing and it seems contradictory ideas about values and what is valuable. This political community emerges in the competition between the five groups that Ghai mentions above, but ultimately, it is one particular group that has the most say, and has that say because of its ability to lay claim to meaning-making. Talking about the CKRC process, Professor Ghai mentions, “there was a question of how best to engage people.” In order to do so, the “CKRC decided to give people an understanding of history, … of the issues involved in constitutional reform, and of the process itself. This was useful in encouraging debate around an agenda that had emerged but not to restrict debate or input on the issues.” Professor Ghai acknowledges here that a particular reform agenda already existed by the time the CKRC started its work, and that this agenda set the terms of the debate, but suggests that the CKRC process was structured to ensure that this agenda did not restrict that debate. How was this done? The CKRC needed “to design a process that [took] into account all [the] publics” involved and their needs and desires. This is where experts come in. What are the implications of different systems? For example, complaints of a lack of access to healthcare and clinics, or questions about adequate transport and access to roads, or quarrels between neighbors connected to uncertainty of boundaries and equal access to resources, are all constitutional matters. But how are they constitutional matters? It was

 

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necessary to create frameworks that lead to equity and provide access, etc. The hope is that certain kinds of institutional arrangements will deliver certain public goods. These frameworks are ways of codifying people’s desires – for example issues were reorganized and dealt with by different chapters, or procedures and hearings were put in place to allow people to make themselves heard, and justiciable rights were made a part of the constitution. The CKRC did a careful analysis of what people said. [They had a matrix and three teams of analysts and placed this analysis on their website.]

The experts end up providing a middle ground of sorts between “institutional arrangements” that can deliver public goods, and “people’s desires”. This middle ground is a place where frameworks can be created that deliver liberal democratic goods and values like “equity” and “access”. Professor Ghai laments the fact that the role of experts has been downgraded in Kenya, and urges me to look at the differences between the draft submitted by the Committee of Experts on Constitutional Reform (CoE) to the Parliamentary Select Committee, and the altered one that came out of it days later. What is interesting to note, however, is that what in Professor Ghai’s telling appears to be an easily identifiable group of individuals – experts – who have a special role to play in the constitution-making process, is really the site of an on-going struggle for the right to define and delimit its membership. Many of the members of civil society, which professor Ghai mentions as one of the “publics” that needs to be accounted for in the constitution-making process, would claim membership in the group of experts. In fact, there is so much slippage between these different “publics”, other than, of course the people who have no access to structures to create the society they want, and that the other groups are claiming to represent in one way or another, that it is hard to tell who is an expert, in what ways, and in what circumstances. Implementation is a process that is meant to objectify the liberal democratic values that undergird the new constitution of Kenya and that emerge out of this Kenyan community as its fundamental political values. Implementation requires the work of “experts” who can continue to develop frameworks that codify people’s desires, while taking into account the various publics that emerge as stakeholders in the process. Professor Ghai argues, “There is a role (and a responsibility) for the people and civil society in the implementation phase. It is the responsibility of those who believe in reforms to lead. They have to continue civic education, and while the constitution has set-up a political process with electoral systems geared towards giving people choice,

 

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people have to learn how to engage with this process. There need to be mechanisms of accountability and control. The Judiciary is key. It has to be competent and extremely independent.” This “competent and extremely independent” Judiciary is the site where the fundamental importance of liberal democratic values to the Kenyan political community will be protected and advanced. It is also the site where the frameworks developed by “experts” to codify the desires of the people that make up this political community can be activated and reproduced. Just like it was no accident that “implementation” was on the mind and tongue of Professor Muigai when he gave his speech, it’s also no accident that the Judiciary was on the mind and tongue of Professor Ghai. Both these men are advocates, legal scholars, and professors of law. That the constitution was chosen as the object of the reform efforts that eventually led, after twenty years, to the promulgation of the new constitution, had as much to do with the role of lawyers in the reform movement, as it did with Kenya’s particular political history and the place and role of government bureaucracy within this history. The linking of implementation to the Judiciary, in particular, has to be seen through the lens of a history of struggle and competition between members of an educated elite, made up over-time increasingly of lawyers and other professionals, to the middle ground between “institutional arrangements” and “people’s desires.” While the Judiciary is expected to rule firmly on the side of the experts who codify people’s desires and do so by channeling the constitutive importance of liberal democratic values to the Kenyan community, it remains an open question, in spite of the protestations of civil society and reform activists, as to who these experts are. The role of political theory seems clear enough from Professor Muigai’s statements – it is a way of understanding, expressing, and remaining true to the fundamental political values around which a political society has been constituted. This is a process of connecting to the “spirit” of this constitution. That this spirit is expressed in terms of liberal values reflects the role that liberalism plays as a symbolic system that makes it possible for this “spirit” to be objectified and made accessible to meaningmaking. Anthropologists have long recognized the role that social structures, processes, and relationships play in the process of making meaning. That these social processes are

 

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considered symbolic systems allows us to understand liberalism here as something more, and something other, than a set of ideas, ideals, or beliefs through which a Kenyan political society can be constituted. Instead, we can think of these social processes, including those that are considered by some to be illiberal, as part of a liberal system of meaning-making through which Kenyan society emerges as something, to quote Professor Muigai yet again, “coherent, consistent, and that has fidelity.” Experts, therefore, can be understood as part of this liberal system of meaning making. They are specific individuals, yes, and my anthropological excavation of the constitution making process is about these specific individuals who claim to be various kinds of “experts” in the constitution-making process. But these experts, also represent, and act from, a particular location in the liberal symbolic system. The society can only be “read” from particular locations, and this, as much as anything else is what liberalism is. Kenyan society is liberal because its “spirit” is objectified through a liberal symbolic system in which liberal values provide the path through which individuals can link to the spirit that creates the community. It is from the location where the separation between the individual and the community is given objective form that society can be read. This location is the middle ground between “institutional arrangements” and “people’s desires”, and is occupied by a Kenyan “middle class.” But why do I make this claim about a Kenyan “middle class” occupying this middle ground between institutions and desire? First, is the fact that the constitutionmaking project is understood, not least of all by the members of the reform movement who pushed it, as a self-consciously “middle-class” political project structured around the promotion and protection of bourgeoisie rights. These reformers, in addition, considered themselves to be constitutional experts precisely because of the fact that they were steeped in the liberal tradition, understood how liberal theory emerged and could be domesticated in the Kenyan context, and in particular, because their educational, cosmopolitan, and professional backgrounds pointed to the legitimacy of these claims. If we want to understand what a “middle class” is in the Kenyan context, it makes sense to at least start with those who lay claim to belong to it, see it as conferring or expressing a privileged position in society, and have been able both to gain widespread acceptance of the existence of this class interest and to organize politically around it.

 

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In his analysis of the making of an African “petite bourgeoisie” or “middle class” in Kenya, Gavin Kitching suggests that the terminology employed to refer to this stratum of society is less important than understanding “theoretically its mode of access to resources and the use to which it puts those resources.” (1980: 311) Kitching is interested here in “the likely pattern of development in Kenya and the limitations upon that development [and suggests that] such an analysis requires the use of a Marxist perspective and ultimately the specification of classes and class relations in Kenya.” (1980: 311) However, for Kitching, the aim is not to “disaggregate any society into social or economic groups [as] the Marxist is not (or at least should not be) concerned with these groups per se, but isolating mechanism by which the products of labour power either in their natural or monetary form are transferred between groups, and by which accumulation of money and the means of production is accomplished.” (1980: 454, emphasis in the original) While Kitching’s sees his analysis as occurring “at the level of the ‘deep structure’ … of production relations, … [it says] nothing, and was not conceived as saying anything, about ‘class consciousness’, political loyalties and ideologies, or other forms through which self-conscious group identities are formed in Kenya,” (1980: 454-455, my emphasis) which he sees as a logical next step to the kind of analysis he does. Colin Leys, returning to the debate between classical Marxists and dependency theorists that occupied much of the discussion about capitalist production in Kenya in the 1960s and 1970s and was structured around the question “whether or not there are reasons for thinking that the ex-colonies cannot “adopt the bourgeois mode of production and develop their productive forces within it” (Leys 1996: 143) suggests that the debate was focused on the wrong empirical issues. In particular, in the interests of theoretical consistency, this debate ended up shunting to the side questions about the importance of a domestic capitalist class in determining the prospects for capitalist development. Leys argues that the “question that most needs to be asked is: How far has the class that has the greatest interest in surmounting and resolving the problems confronting capitalist development in Kenya identified these problems or shown itself able to tackle them?” (1996: 154)

 

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This means that the domestic bourgeoisie needs to be “competent politically as a class: that they should, as a class, recognize the requirements of capital accumulation for capital as a whole and be able to see to it that these requirements are met.” (Leys 1996: 153) In fact, Leys suggests that the “most fundamental weakness of the Kenyan African capitalist class … [is that] far from having ‘formed itself into a class’, far from having organized itself around a shared project for the transition to sustainable capitalist development in Kenya … [and rather] than developing political institutions capable of organizing its collective class interests, and attaching other classes to itself through political leadership, it continued to rely on Bonapartism, ceding political power to a single individual in return for having all other possible centres of power subordinated to him,” and “remained deeply permeated and divided by ethnic consciousness.” (1996: 161) Bringing Kitching and Leys together, points to my second reason for suggesting that the “middle class” occupy the “middle ground” between institutions and desires. The constitution-making project was a political project that involved the claiming of a bourgeoisie class interest. However, I argue that Leys understanding29 of the way the state worked in Kenya and how politics was organized around it, was flawed. Rather than having a highly centralized government structure, what Leys describes as “Bonapartism” is actually a symbol of the diffused nature of government authority in Kenya and the attempt by the “petite bourgeoisie” to organize as a class to advance their political (and economic interests). The constitution-making project was a political response to this form of class organization. More importantly, however, it is symbolic of the “deep structure of production relations” that exists in Kenya. Rather than seeing politics as existing at a secondary level of analysis of the relations of production, I look at the formation of class-consciousness, political loyalties and ideologies, and self-conscious group identification in Kenya as a way of analyzing, at the level of deep structure, the relations of production through which a society emerges and is organized. Rather than assuming the failure of the domestic bourgeoisie to                                                                                                                 29 Interestingly enough, his discussion of “Bonapartism” is taken from an article written by Professor Peter Anyang’ Nyong’o (1989), a political scientist and one of the politicians allied to the reform movement in Kenya, who as interested political actor, was advancing his own theoretical case for government reform.  

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organize itself as a class, I use the constitution-making process as a way of investigating how this class has emerged, in its various iterations, throughout Kenya’s history, as a way of making visible the particular relations of production that structure Kenyan society. “Middle class” here is the middle ground location where meaning making occurs within Kenyan society, and from which, therefore, productive value flows. This is the location where the “spirit” that ties the community together is given objective form, allowing that community’s political values to be made available for processes and projects of subjectification. This, however, is a political process because class interests are identified, and given particular historical content, through political organization that works to isolate the “mechanism by which the products of labour power either in their natural or monetary form are transferred between groups, and by which accumulation of money and the means of production is accomplished.”

 

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CHAPTER THREE: BOURGEOIS RIGHTS, BOURGEOIS INTIMACIES Introduction Constitution making in Kenya is often talked about as if it were a general societal response to a particular political situation yet the truth is that the particular choice to pursue reform as a project, and to do so by demanding that a new social contract be created between the government and the governed and enshrined in a constitution, emerged from a small group of individuals, many of whom had become radicalized in university, cut their teeth in student leadership, lived cosmopolitan lives in Nairobi, and run in connected professional circles. The choice to focus on human rights had as much to do with their social and political cachet as it did with the lives and lifestyles that many of these reform activists were living, and the desire to protect it and the opportunities it brought. The reality is that constitution making represented a choice made by a group of individuals about how to best advance their particular political goals and ideological convictions in a context in which they could acquire support, both domestically and internationally, for their mission. By revealing the specific provenance of the constitution making process that resulted in the promulgation of a new constitution for Kenya in August 2010, I want to focus attention on the ways in which constitution-making structures and is structured by Kenyan society in ways that almost always exceed its intended ambit and supercede its explicit intent. I make the argument that the primary effect of the constitution making and reform processes is the re-embedding and re-legitimization of the particular classificatory structure that provides the reform activists with a social position from which they can make their claims and demands visible, and worthy of recognition. This is a process in which the ability to claim the status that comes with a particular kind of class distinction – the ability to take on or acquire the knowledge, habits, mannerisms, language, and cosmopolitan lifestyle of an educated professional – goes hand in hand with the marking of certain intimate relationships and certain affective behaviour as legitimate and others as illegitimate. The reaction (or lack thereof) of civil society activists to the death, in a helicopter crash, of a pair of politicians, one of whom

 

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was a Moi-era politician implicated in many of the scandals of that era, was out of step with much of the public sentiment, which met the death with a mixture of sadness and fascination. It was a revelation of the way in which only certain intimacies and certain sentiments and belonging to certain people, could be make to count in the narrative of reform. The emotions and intimacies that are shown to be important here are the ones that have sustained the reform movement and come out of the common experience of its members, and that represent a shared ideological project. While their work as reformers was structured around promoting universal liberal ideals, their particular strategies could not help but be structured around their personal situations, their intimate and professional relationships, and the personal and social capital and effort that went into creating and sustaining these relationships. We have, in other words, to understand the reform process and its strategies, tactics, and ideals, as always socially produced and specific to a social context and the lifestyles, habits, mannerisms, and ways of talking, thinking, writing and otherwise representing oneself in which intimate connections can be made and developed. I use my interviews with two civil society activists to reveal how the reform movement produced, for public consumption, an understanding of itself as a large-scale societal response to the excesses of government and the “imperial presidency”, and yet, simultaneously, was treated as something that belonged to the small group of individuals who birthed the project and who had a commitment to the idea of a government of “the people” and a particular “pure” vision of democracy and the rule of law in Kenya. That this process was understood, both by those who developed it and those who consumed it, as a middle class project, meant that “middle class” and with this term, the lifestyles of the individuals and the community out of which the reform movement sprung, became the origin of a “Kenyan” society and the source of its legitimacy. This middle class, structured around the promotion of abstract liberal rights, and in particular human rights, imagines itself to belong also to a universal and universalizing project that seeks the equality of all humans through the claim to a shared humanity. The ability to lay claim to this common humanity is often accompanied by a recognition of the ways in which “Africa” has been excluded from this humanity and a desire to work in

 

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its interests and by advancing local African solutions to the theory and practice of governance. Legitimate and Legitimizing Intimacies It was about midnight, Pacific Time, on Saturday June 9 when the call came in. Shock and hurt was quickly relayed from Nairobi and received in kind. There was a helicopter crash. Former Vice President and the current Minister of Internal Security, George Saitoti, as well as his Assistant Minister, Joshua Orwa Ojodeh, suspected dead. A weird energy charged through my body. I was alive with the sense of being stunned and saddened. I got up off the couch, my pacing taking me all the way to a friend’s car, the keys hanging loosely in my tight grip, my mind elsewhere, churning, words seeking release but reluctant to be formed given shape by a purposeful gait. I had to go back into the party I had just left. There was a fellow Kenyan there, a student in Political Science, and I knew my words would find the kind of home they sought in him. I found him playing the role of DJ, scrolling down a list on his computer screen looking for the next song he’d play, and told him the news. “Just got a call; Saitoti dead; helicopter crash; his assistant minister too; Ngong; on the way to a fundraiser.” They were just words, delivered evenly, but it was my outlet. I didn’t have to explain; the news itself carried a complexity of feeling and of thought. The look on his face changed as he scrambled to the Nation website, one of Kenya’s daily newspapers, for news. His friends sensed the change, saw it in his face, and immediately asked what was wrong. He repeated the news even as he read it. But by itself, it didn’t explain why his countenance and his mood had changed so abruptly. It was a politician, someone neither of us knew personally or was close to, and a long-time member of the Kenyan political class, the group that so often got attacked in conversations and academic conversations and literature for their role in keeping African nations in a morass of corruption and social and economic degradation. Why the hurt? A few days later I received an email from an acquaintance in Kenya, an Anthropologist who was studying Kiswahili in Mombasa in preparation for future fieldwork there, asking me to explain what all the fuss was about Saitoti and Ojodeh’s

 

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deaths. Not because she couldn’t understand why people would be hurt because a prominent figure had died, but in part because it seemed to not sit with the discourse on these political figures that was so often shared in academic and intellectual and circles in the West, and channeled, repeated, and produced by their counterparts in many African nations. The answer to this question has multiple layers. And implicated in the answer are the multiple processes implicated in the production of interactions, intimacies, and social relationships between different individuals and groups of people in Kenya. Let me start with the call that disturbed my Saturday night. The call was from a lady whose relationship with me is hard to characterize. She is a former employee, Priscilla, who used to cook and clean for my family in Nairobi, someone with whom I have discussed economic and political issues, whose home I have visited numerous times for meals, and whose children I help put through school. Her home is a partitioned one-room apartment in Kawangware, an area she describes as the kijiji (which translates into village even though the area is literally in the middle of the city) but which is sometimes referred to as a slum. Slum is a problematic word because it is used to describe so many different types of planned and unplanned, formal and informal settlements made up of both permanent and impermanent structures constructed with all manner of materials. It also used to provide a contrast to the kinds of lives and lifestyles that are being built in middle-class and affluent areas and as such is more a categorical device against which the upwardly mobile, the professional, and the elite can measure themselves. Lost in all of this is the complexity and contradictory nature of the lives that are built and lived here, and the variability, in terms of social and economic background, income, occupation, and lifestyle choices, to be found. Also lost are the extensive similarities – not just in terms of desires, interests and social and economic needs but also in terms of how those desires and needs are manifested and made to matter – between the lives constructed here and those constructed in other neighborhoods, as well as the extent to which all these lives and lifestyles are built into and reproduce each other. One emotion Priscilla conveyed to me that night was of extreme sadness. And it reminded me of how affected she was by what happened with our immediate and

 

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extended family when she worked for us and after, and felt similarly, as I discovered in conversation, about the family she had worked for previously. She cared about how we did in school, who we hanged out with, and the kinds of people we were growing up to be. It was a care that seemed incommensurate with the salary she received from us, even as it made sense given the amount of time and energy she put into our lives. I was also struck, but often only in passing or in retrospect, by the fact that this care did not exist both ways. We were concerned, but only in a detached sought of way about what happened to her family. When an aunt or grandmother died, we were interested in allowing her time to grieve and to travel to be with her family, but we were also concerned about what it meant for us. Parents and children alike, we relied on her to add continuity to our lives, and her departure, to be in her own life, was something we had to contain, in order for ours to work in the ways it did. In order to fill a role in our lives, we required Priscilla to be an actual person – empathetic, caring, hardworking, flexible reasonable – but we also required that she find ways to limit the ways those qualities, and the effects they had on the life outside the one she shared with us, introduced discontinuities into ours. She was a person in full but only when we could afford her that luxury. The rest of the time, as an employee, she had to find ways to leave her family outside the workplace. It was the care and affection she showed me, and especially that which she reserved for my education, including the pleasure and pride she took in my accomplishments that brought her back into my life when I started spending time in Kenya in preparation for my fieldwork, and that ultimately made it feel like it was necessary for me to help educate her youngest children. It was at this time also that I, for the first time, ventured into her life. And finally, after years of getting off the main road to Kawangware and turning right into the suburban life in which I shared intimate moments – laughter, tears, hopes, doubts, fears, love – with those with whom I was close and could be close, I turned left and into an area where I had never even considered that intimate interactions could be possible. Rather than ask why Priscilla would be so emotionally invested in a family and in relationships that forced her to circumscribe her life in order to make the kinds of intimate connections that were required of her in her job, or why indeed she was

 

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saddened at the death of a politician who she knew only at a remove and only through popularly mediated forms, it is far more productive to ask what processes made and continue to make her personal investment in my family and her sadness at the death of George Saitoti possible? What are the processes that provide the field of options from which she is able to choose to invest in our lives, while simultaneously allowing us to choose not to invest in hers, in socially sanctioned and legitimate ways? The call I received late on June 9, 2012, is important because of its content, and what the various processes involved in making the call happen say about the types of intimacy and the types of relationships that are both made possible and simultaneously foreclosed by the social interactions that exist between people in Nairobi. It is important, therefore also, because of what it says about the kinds of politics that emerge out of civil society and the reform movement. While people mourned both privately and publically over the deaths of Saitoti and Ojodeh, two bodyguards, and the two pilots of the police helicopter that was commandeered to fly them to Nyanza in western Kenya from the capital Nairobi, there was a group that was conspicuous in its silence – civil society. This is not to say that members of civil society needed or had to comment on the deaths, but given the role that civil society has taken on in Kenyan politics, one that often takes shape in challenges to politicians, that it would have nothing to say needs to be noted. Civil Society in Kenya has styled itself as the conscience of the country, especially when it comes to checking the excesses of government and the so-called political elite. To wit, there is a continuous supply of editorials, press conferences, public protests and court filings designed to put pressure on government, and on politicians who are deemed to be anti-reform, to meet standards of efficacy service, leadership, propriety, and integrity that are set by these reform-minded activists and carried out in the service of “the people”. While it’s hard to speculate as to why exactly these civil society activists did not speak out after the accident, either in their individual capacities or as representatives of their organizations, their silence did reveal something about the limits of the reform discourse. While this discourse is designed to command certain action, compromises, and movement from government on behalf of the people, it seems strangely unable to channel their affective and emotional needs. Adding to this difficulty is the role Saitoti

 

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played as the longest serving Vice-President in the government of former President Moi. Despite his gentlemanlike and intellectual mien, Saitoti was also implicated in several of the corruption scandals that marked the last ten years of Moi’s rule. Since the reform discourse paints issues of governance in very stark black and white terms – you are either pro-reform or anti-reform, interested in promoting the rights of all Kenyans and serving the needs of the country or selfishly seeking to enrich oneself at its expense – brooking almost no nuance or uncertainty, it becomes hard for those whose political and leadership roles are built around reform to effectively eulogize the life of such a figure, even if so many seem so hurt and disturbed by the death. This immediately raises a question as to whether civil society can act as an effective or even legitimate interlocutor for the people of Kenya, if it is unable to channel their intimate and affective concerns, desires, and feelings. Can civil society lead government reform based on the idea of returning sovereignty to the people and making government responsive to their needs if it is unable to provide direction and purpose in response to people’s emotional needs? My time spent with the civil society and reform activists involved in the constitutional reform movement, and my research on the constitution making process more generally, reveals that intimacy and affect actually play important structuring roles in the production and reproduction of the work of reform and the movement from which it emerged. It also reveals that the intimate and affective relationships created by the reformers have been key in allowing them to assume the central role they now occupy within or around government. Pius Oloo, head of a legal aid organization who had previously worked at the Kenya Human Rights Commission (KHRC), when talking about the history of the reform movement in Kenya and civil society’s role within it, told me to ask Willy Mutunga, former student leader, union organizer and lecturer at the University of Nairobi, detainee, exile, and Executive Director of the KHRC why he belonged to so many organizations simultaneously during his reform heyday. Pius suggested that while civil society organizations were often limited in the work they could do by the priorities of donor nations and funding organizations, the individuals who belonged to these CSOs learned to create or join several different organizations to push their particular agendas.

 

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What emerged most clearly from this conversation, and was subsequently confirmed as I put together a list of the various people who organized as “civil society” to push for a new constitution, was how small the number of key reformers was, and how often these individuals moved around and worked under the banner of different organizations. In fact, while politicians in Kenya have been derided in the multi-party era for the frequency with which they change political parties and political affiliations in order to advance their personal agendas and political interests, it is clear that while the members of the two groups on the surface have completely different motivations, this understanding that it is often necessary to think beyond institutional boundaries has a precedence in Kenya. In contradiction to the widely-circulated view that civil society emerged out of a general middle class response to the excesses of government, and out of a widely-held popular desire for increased political space in the country, the evidence that I have gathered suggests that the birth of civil society and constitution-making in Kenya was linked to the interests and experiences of a relatively small number of individuals, who made use of the particular opportunities availed to them, to respond to, resist and challenge the government of President Moi. This is not to say that there was not a widespread desire to challenge the country’s autocratic government and to expand the space for political and economic participation. All I am suggesting is that the empirical evidence points to the fact that the civil society response to government and the push for expanded democratic space through the writing of a new constitution emerged from a very particular location and from a very particular group of people. When Dr. Mutunga talks of constitution making from the middle (the title of his book on the history of the early years of the reform movement), the suggestion is that the constitutional reform movement emerged out of the middle class. This is very much in keeping with the view that civil society sits at a middle ground in a vertical topography of power relations between an up-there state and a down-there people. (Ferguson 2006) This middle ground is occupied by individuals who can intercede – because of their education, social backgrounds, and professional pedigree – at the level of government, on behalf of the general population.

 

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It is telling that civil society was focused on re-writing the constitution as opposed to other reforms that might expand the democratic space. This might suggest, as many activists contend, that reform required a complete re-imagining of the social contract between the governors and the governed to ensure that the interests of regular people, and not just of the political and economic elite, were preserved and advanced. Or it might suggest that there is an interest in expanding the role to be played by an intellectual and professional class. Why? To begin to answer this question, we must look at two very different, but linked, ideas of who makes up the middle class. One, as explained above, and the focus of this chapter, is tied to its specific role as the middle ground between the state – and the elite who are in control of the state – and the general population. This idea of what the middle class are, is linked to their position as professionals and as thinkers (academics and public or private intellectuals). This is the idea of the middle class that is at the heart of Mutunga’s book, that runs through many of the books written by various other Kenyan civil society activists and public intellectuals, and that is key to the understanding and production of civil society in Kenya and in Africa. This middle class is necessary to the production of the ideal state-society relationship. And therefore, the production of the reformed state requires an expanded role for the professionals, intellectuals, academics and experts who are necessary, and ideally placed, to check the government. Two, is the idea that the middle class is marked by the desire, and the ability, to live a life that is marked by achieving certain specific middle class comforts and holding specific middle class values. What these comforts and values are is partly context dependent and linked to the lifestyles of the people around you and partly mediated by the consumption of images and ideas from outside the local context that point at what kind of life it might be possible to live. Ethnographies of the middle class in Kenya (Spronk 2012) have pointed to the fact that middle class identity is very much linked to the ability to perform modernity (in contradistinction to the “traditional” activities and beliefs that hold sway over rural and other non-modern local populations) and to have progressive values when it comes to the question of governance, rights, gender relations, and intimacy. Performing modernity also means engaging in the kinds of leisure

 

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activities, and public and private displays of purchasing power, that points to pedigree and refinement, as well as the ability to act contrary to that pedigree when necessary. The middle class is not a group with common interests or that occupies a common location or common standing in relation to the State. Rather, different groups of individuals with common or linked interests, make use of the idea of the middle class to make a variety of claims against each other and against the state with the intention of and/or resulting in the accumulation of social, political, and economic capital within Kenyan society, and often even further afield. What follows here is an excavation of the processes through which a small group of professionals and intellectuals, collected together as a Kenyan civil society, but linked more closely and more importantly through the shared locations, strategies, and beliefs that have allowed them to create and maintain intimate relationships, make use of constitutional review to expand the opportunities available to them to live modern, progressive, middle-class lives within a Kenyan social context. The strategies pursued by these activists have focused on law as a tool through which government can be restructured in order to expand political and democratic space. Law is also used as a way to force the “political elite” that is in charge of government, to pay attention and respond to the demands, ideas, and needs of these activists. While the work of reform might be motivated by the attempt to bring about an equality of opportunity and outcomes for the people of Kenya, this chapter argues that at its core, it is a self-interested strategy that emerges out of the personal and social histories of the reformers and the intimate interactions and relationships that shaped these histories. This is not to say that these activists construct reform in a cynical attempt to have their interests met. In fact, on the level of intention, for the most part, this is the exact opposite of how reform is structured. Rather, what I am arguing is that, the process of reform activates specific socio-material processes that necessarily reward and reinforce the beliefs, choices, practices, and lifestyles of these reform activists. As a result, reform acts as a process through which these activists come to occupy special and elevated positions in the political, social, and economic hierarchies that reform creates by attempting to re-organize the socio-material world in its interests. This allows these activists to draw incomes and occupy social positions that are commensurate with the

 

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value that is placed on these beliefs, choices, practices, and lifestyles within this reconstructed socio-material world and the success with which they are understood to have navigated this world. Kenya’s reform movement is narrated as if it were a broad-based alliance of different social, economic, and political interests and groupings that allied together in the interests of democratic reform. My research reveals, however, that the leaders of this movement understood it as much more limited in size, membership, and scope. The interests that were important were those of a small group of intellectuals and professionals who had largely come of age politically in the first decade-and-a-half of Moi rule and in opposition to the specific ways in which the Moi government sought to organize political, social, and economic space and how this impacted both the individual opportunities available to these intellectuals and professionals, and the opportunities available to those with whom they had intimate ties and affective connections. What follows below, is a brief description of the history of the reform movement, and the principles around which it was organized, as narrated to me by two of its members, Davinder Lamba and Gibson Kamau Kuria. Creating a Movement I sense weariness in Mr. Lamba when we sit down in the conference room at the Mazingira Institute to talk about the constitution making process. It is both easy to notice and easy to miss. The weariness is evident starting from the moment he covers his eyes as I start to explain my research to him before he stops me and launches into a description of the events, ideas and personalities that have marked the reform process for him. It is still evident as he moves on to providing me with names of current and former allies of his and the movement, some of whom he accuses directly and indirectly of at some point or other betraying its ideals, who can provide me with information. Occasionally though, that weariness gives way as the passion that has clearly guided his participation in the movement for over twenty years, flares up in his eyes and his voice. This is especially true when he describes the early years of the process and the battles – both physical and intellectual – that marked it.

 

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At the end of our meeting he makes sure to show me a bag that he carried with him throughout his years in the reform movement. As he holds and displays the bag, treating it not with reverence but with an understated yet obvious attachment, you get a sense of what his time in the movement meant to him. Battle-scarred, weather worn, and covered in stickers, it represents a time and place in which the demand for a new constitution, for a new way of governing, and for a new government captured the feeling of many just like him that a new order was not only possible but imminent. The soft leather briefcase that he lovingly pats as he presents it for view, seems to carry his passion, the weariness born of it, and that moment in which change felt so possible. I get a similar sense in Gibson Kamau Kuria’s office – of an idea, and an emotion, frozen in a moment and carried forward through time. In many ways Mr. Kuria and Mr. Lamba remind me of each other. It is clear that they are both completely committed to their work, and despite the generous incomes I am sure both generate through their respective jobs – Mr. Kuria is a well-known lawyer and Mr. Lamba runs an NGO and is a governance consultant – and through their extensive contacts in the field of government – Mr. Kuria served as Assisting Counsel at the Goldenberg Commission of Inquiry while his ex-partner Kiraitu Murungi was Minister of Justice and Constitutional Affairs and Davinder Lamba was a paid consultant to Kenya’s Truth, Justice and Reconciliation Commission – neither they, nor their workspaces are marked by any kind of ostentation. Mr. Lamba’s offices are in a converted single story home in an area that was once primarily residential and made up almost exclusively on single-family homes built on quarter-acre and half-acre plots. It sits at the edge of an old shopping district that has now increasingly been overtaken by apartment complexes, office parks, and an everexpanding retail footprint. Not quite an anachronism, the house represents a way of living that has begun to fall away even for the middle and upper middle classes. The building has an addition in which the conference room is located that is more modern in appearance than the other buildings in the compound, but the entire space smacks of a time that seems to be coming to an end yet stubbornly, and with good reason, refuses to concede that fact. My interview with Mr. Kuria takes place at his law offices. These are the same offices he occupied in the 1980s, and as he described the people that have sat with him in

 

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his office – many of them anti-government activists and reformers, the events and meetings that took place there, the stationing of security officials in the corridor outside by a worried regime, it was clear that the space was both a sanctuary and an homage to a time when the urgency to challenge and change the government, and the very real risks that came with it, played a central role in his life. Just like Mr. Lamba’s bag and other artifacts from that time that were preserved carefully in his office, Mr. Kuria’s office remained an artifact of a particular time in Kenya’s history and its survival in the present. Mr. Kuria’s offices are in downtown Nairobi (or what is commonly referred to as the city centre), in an office building that sits beside a nightclub that has been an institution in Nairobi night life for decades but was facing eviction while I was conducting my fieldwork, down the street from the Central Police Station and on a street that at night transformed into Nairobi’s primary red-light district. . Inside the building, you find dark, narrow corridors, solid wood doors, and nameplates affixed to what are invariably closed doors. The building itself is old, not in disrepair but definitely of a different era when seen next to the newer high-rise buildings that dotted the central business district, and downright old-fashioned if compared to the office complexes that had sprung up in other areas of the city and that are occupied by the various civil society organizations, NGOs, government commissions, and private consultancies that employ or are run by many of my other informants. The corridors in here crowd you, the elevators cough and strain rather than glide, there are no cheery colors or attractive young women behind the reception desk, no glossy magazines, and televisions. The two kinds of office space feel different and prompt different kinds of behavior and performance. The interior of the office suite also seems like a nod to a different time. This is a very particular place of business – it feels like it belongs to a different set of possibilities and priorities and interactions between people, than the offices that I visit later. Yet this is not to say that the place is not of this time, rather it is to say that it offers a very different idea of what this time is, how it looks, who is active in it, and how. In one way, the office looks a little old and a little drab, but only in comparison to the offices in the ever-newer business complexes coming up in what were once residential areas and/or shopping districts. The furniture is not new, or from a matching set, and does not seem particularly well suited to the dimensions of the room. However, his space makes sense

 

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when you meet him and talk to him about his career in law. The offices feel comfortable, worn-in, experienced, and the décor of the room is part of the ambience and energy generated by the place as a whole. It has an ease and casualness that allows one to feel at home even though in a place of business. The large plaque outside the entrance to Mr. Kuria’s office suite still bears the name of his former partner, and the law practice is still named Kamau Kuria and Kiraitu Advocates, an anachronism, even if technically correct, given the fact that his partner has been involved in active politics and had not worked as a lawyer for almost a decade at the time of our interview. The law firm though, was widely known in the eighties and nineties for the work it did in constitutional litigation, and for representing dissidents and other political opponents of the Moi government. The firm was at the heart of the push for the opening up of political space in the country, and the decision to focus on law and the rewriting of the constitution as a means to that end. What Mr. Lamba and Mr. Kuria relate to me is a story of anti-government activism and the demand for liberal reforms around which this activism was organized. Both were members of the “civil society” that came together around a constitutionmaking process that was initiated as a way of both removing President Moi and the ruling party KANU from power, and of facilitating the restructuring of the state to ensure that no individual or group would again be able to wield government authority in the way that Moi and KANU did. The “reform movement” as both Mr. Lamba and Mr. Kuria explain it, was the coalition of civil society activists, opposition politicians, and other reformminded individuals and institutions that came together to demand reform from the Moi government. This reform movement had its hey day in the early to mid 1990s – a period of time in which it helped set in motion a process that eventually led to the opening up of political space, the removal of KANU from power, and eventually to the promulgation of a new constitution in August 2010. This process, however, was not as linear as my description above suggests. What both Mr. Lamba and Mr. Kuria highlight in their descriptions of reform, is the idea that the work of reform often suffered because of the competing motivations of the individuals and groups that were a part of the reform movement. For both, it was “civil society” that provided the intellectual and moral foundation on which the “reform

 

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movement” and the work of reform was built. Insulating reform from the political process, and in particular from the electoral process, was understood to be critical to its chances of success. Partly this was because formal political processes, like elections, were largely understood as how the successive KANU regimes of Jomo Kenyatta and Daniel arap Moi had consolidated power, and eliminated opposition to their rule. The main issue that this civil society faced was that, emerging primarily out of a professional middle class in Nairobi, they lacked a popular political base. Opposition politicians, who could mobilize significant popular support in many regions of the country, were crucial to the popularization of the idea that it was necessary to reform the country’s constitution. Civil society attempted, through the organization of the various institutions created to push for a new constitution, to control the political ambitions of the politicians in the reform movement, and to get these politicians to subvert their interest in acquiring elected positions to a greater interest in creating a completely reformed system. As can be imagined, given that the focus on constitution-making and the promotion of liberal rights emerged from civil society and not from the politicians who had their own ideas about what the country needed and how to get it there, this was difficult to do. The competition between “civil society” and “politicians” to control the political space opened up by reform has structured its practice since its inception. This competition has been complicated by the porous nature of this divide, as civil society actors have ended up in elected positions or otherwise been absorbed into government, and different politicians become darlings or enemies of civil society depending on how they engage with the mission, rhetoric, and strategies of the reform movement established by civil society. There has also been significant fall-out between members of civil society depending on differences of opinion, clashes of personality, competition for funds, and expressed or tacit support for different political actors and political movements. For example, as Mr. Lamba provided me with names of people I could contact to do my research, he often hinted at the existence of strained relationships and betrayals, of ideals and sometimes it seemed of a more personal nature, and sometimes suggested that I not tell a particular individual that I had been sent by him. It is important to note here that the people that both Mr. Lamba and Mr. Kuria kept referencing during our interviews as the leaders and principal agitators on both sides

 

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– the opposition politicians and the civil society actors – were actually a fairly small and circumscribed group. While this can be understood to be a direct consequence of the fact that both Mr. Lamba and Mr. Kuria are focused on those individuals that provided leadership and structure to the movement, I would also like to suggest that it might be even more productive to think of the “reform movement” as involving primarily one small group of people, who, by claiming leadership and ownership of the movement, determined the roles that others could occupy in the process of reform writ large. The reform movement therefore might not be so much a movement in the sense suggested by the term “movement” which gives certain impressions of scale and of an egalitarian and open structure. The description by both men of the “reform movement” being removed in 1997 from its leadership position in the constitution-making process and of this removal hampering the reform process, points to my conclusion. That “reform movement” is also used by both men to describe the structure built to accommodate the sometimes contradictory motivations and intentions of civil society activists and politicians under the umbrella of reform also points to the conclusion that the “reform movement” can be thought of as: a negotiation of the terms of engagement between the state and its critics; a competition for the right and ability to claim ownership and leadership of this interaction; and the stage on which a clash between the beliefs, ideologies, and personalities of a relatively small and closed-off community of individuals is fought. Mr. Kuria and Mr. Lamba offer up reinforcing descriptions of the reform movement and the push for a new constitution. The differences between their narratives often have to do with differences in their personal and professional locations at different stages of the reform process. They both focus on the role of the law, and of legal strategies, in setting the stage for the reform movement, and as the tool for, and the site of, the competition between “civil society” and the “political class.” They also both focus on the period between the 1992 and 1997 general elections as the key period in the production of an idea of reform that was built around the push for the creation of a new constitution for Kenya focused on liberal rights, democratic ideals, and the sovereignty of “the people.” It is in this period that the relationship between “civil society” and “politicians” is organized in such a way that the liberal rights activists in civil society set

 

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the agenda for reform. It is not until the period of time in which I conducted my fieldwork – from September 2009 through March 2011 – that these particular activists, and the framework they created for reform, regain some measure of control of this process. This happens when “implementing” the constitution becomes the new watchword in the attempt by the liberal rights activists in civil society to insulate the process of constituting the state from politicians and from the electoral process. In our conversation, Mr. Lamba describes constitution making as “a process in time that is coming to an end.” He saw the process as occurring in a series of phases, each of which had a different set of actors occupying central and peripheral roles. He suggested that one of the keys to understanding the movement was to figure out “the initiating point in time.” Was this initiating point the independence constitution? Was it the move in 1982 to make Kenya a de jure one party state? Was it the actions of lawyers like Mr. Kuria in the mid-1980s to challenge the regime in court? Was it the fall of communism? Mr. Kuria starts his interview by describing his participation in reform as being “radicalized” and explaining why it happens. As a lecturer in law at the University of Nairobi from 1974 he realized that promotions in academia were not based on merit and that a career as a professor was not available and so he chose to start a law practice in 1981. His intention had been to “practice law in a liberal democracy” but Kenya’s regime became “illiberal” with the 1982 constitutional amendment that made Kenya a one party state by law. Soon after Mr. Kuria and his law partner got a case where they were asked to challenge illegal detentions and from there took on other human rights cases. Mr. Kuria and his partner never won any of these cases but his law firm became a focus of hope for democratic forces. They discovered that courts were available as an instrument for contesting executive power. Because Kenya had a Bill of Rights, they challenged the regime to live by its own constitutional standards. For Mr. Kuria, the independence constitution was written, “to establish liberal democracy,” and in the intervening period (1963 to 1989) there had been a “movement towards authoritarianism.” The case for rewriting the constitution was being made-out because of the government’s insistence that it was lawful to detain people and to suppress freedom of expression through sedition trials. In 1987 Mr. Kuria was detained for nine and a half

 

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months, which drew attention because Mr. Kuria was a lawyer and not a political activist. In 1988 the constitution was amended again to take away independence of judges and security of tenure for public servants, and in elections that year voting was conducted through queuing and not secret ballot. The image of owners of shorter queues being declared winners of electoral contests had a strong effect on ordinary people who saw blatant cheating. The fall of communism in 1989 meant the collapse of the philosophical basis for one-party rule and in 1990 he started calling for the rewriting of the constitution. For Mr. Kuria, the push to rewrite the constitution was a response to the failure of the KANU regime to live up to its obligation as shepherd of a liberal democracy. The response he offered to this failure was a lawyer’s – one focused on forcing the state to live up to its constitutional standards. He narration seemed to indicate that the decision to call for the constitution to be rewritten was arrived at as the final response to a series of increasingly illiberal actions by the KANU regime. But it was also premised on the fall of communism and the uncertainty about how the world was to be organized geographically, socially, and politically that appeared with this fall. Mr. Kuria described to me a meeting he had with Reverend Njoya, one of the leading figures in Kenya’s reform movement and a well-known pro-democracy agitator,30 which highlights the relationship between legal practice and the push for liberal democratic reform. Njoya initially came to Mr. Kuria for legal representation after his decision to use the pulpit to make a case for the return to democracy caused problems with his church. In this particular meeting, Mr. Kuria suggested the topic for a January 1, 1990 sermon where Njoya said that since communist countries were falling there needed to be a return to a market economy and political pluralism. This created momentum and even though the initial view of these early reformers was that they should advocate a rewriting of the constitution, it was still too radical a demand and instead there was a call for repeal of Section 2A. According to Mr. Kuria, Raila Odinga came to the offices he                                                                                                                 30 In a separate interview Reverend Njoya explained to me that on October 5, 1985, he became the first person to ask for a people-driven constitution with “the people as sovereign.” He also describes how he took the Constitutional Review Commission of Kenya to court to ensure that no constitution could become law without first being approved by the people in a national referendum: Njoya and Others vs. Attorney-General and Others (2004) AHRLR 157 (KeHC 2004).  

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shared with Mr. Murungi to consult, and soon after intelligence officers were placed outside his offices as well as the offices of Paul Muite and John Khaminwa, two other lawyers who had challenged the regime in the courts. A political rally was called for on July 7, 1990 to make a case for repeal. The regime panicked and on July 4 arrested and detained pro-democracy activists. Mr. Lamba’s narrative of the process starts with the amendment of the constitution to remove Section 2A and return the country to multi-partyism. He tied this to the collapse of the Soviet Bloc in 1989 and the demands for political liberalization that swept through Kenya in its wake. In this initial phase the key actors for him were the politicians who formed FORD – “Oginga Odinga, Paul Muite, Kenneth Matiba etc.” This phase, which does not get much mention in his story, ended with the 1992 elections. Following the election, differences emerged between political actors who were focused on election and civil society actors who wanted a new social contract that would have the consent of the people. This approach was highlighted by the “Kenya We Want” convention in which a call was made to create a new constitution through a national convention – a “people-driven” project. Despite what Mr. Lamba says were clear differences in the interests of the two groups, civil society worked with opposition political leaders including through a Professionals Committee for Constitutional Change, which was intended to bring the two groups together. Meanwhile the International Commission of Jurists – Kenya Chapter, the Kenya Human Rights Commission, and the Law Society of Kenya produced a model draft constitution to help jumpstart the constitution-making process. In this phase, the work of civil society actors becomes more prominent, first with the formation in 1996 of the National Convention Planning Committee (NCPC) and the National Convention Executive Council (NCEC). It is at this time that the “reform movement” was established and a National Convention Assembly (NCA) scheduled for March 1997, an election year. The challenge as Mr. Lamba saw it, was to unite the political actors in the opposition, which by this time was highly fragmented. This was accomplished by creating a model for leadership with a panel of co-conveners, to be drawn from civil society, to lead the movement and reduce the chances of conflict between the politicians. There would be members of the panel representing different

 

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interest groups, including youth, women, NGOs, the faith sector, and workers. If the coconveners wished to contest the election they would resign – a provision intended to “deal with the political class” and “make them non-threatening.” And there was to be a spokesperson elected by the assembly. According to Mr. Lamba, the principle worked and provided glue to the movement. Most importantly “the people at the centre of the process are now the reform movement with leadership from civil society constituents and with a spokesperson as leader” and not the politicians. The reform agenda was “presented and endorsed” in Limuru by “representatives from all over the country” and the National Convention Executive Council (NCEC) was set-up with a secretariat, staff, and committees, and was funded by mostly donor money – a mix of foreign governments, agencies, and NGOs. The movement organized mass action throughout the country, and as the “government began to shake” the idea of the Inter-Parties Parliamentary Group (IPPG) was floated with the aim of extracting political actors and dividing the movement. The NCEC was told they could act as “technical people but not negotiation participants.” The result was that the reform movement split with opposition leaders, with elections fast approaching, choosing to negotiate “minimum reforms,” while civil society feeling betrayed launched a “No Reform, No Elections” platform with several civil society actors going on a tour of Canada and the United States to push the platform. Mr. Kuria sees his work as a member of the reform movement as an “exercise in using law to bring about revolution.” To understand what he means by revolution, we have to go back to his contention that “Kenya’s independence was about establishing a liberal democracy,” and that in order for him to “establish a career [as a lawyer] in a liberal democracy, [he] needed, therefore, to restore liberal democracy.” Revolution was about restoring liberal democracy. For Mr. Kuria there are many components to restoring democracy and there needed to be intellectual as well as political leadership. He argues that the nationalists who led the struggle for independence in Kenya had no philosophical grounding, noting that Ochieng Aneko [one of the Kapenguria 6, who were tried and jailed by the colonial government at the beginning of the State of Emergency in 1952] thought press freedom should be restricted, and that Kenyatta, himself a political detainee, thought that there

 

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should be an emergency law for detention in peacetime. For Mr. Kuria, this meant that while we had good nationalists, these nationalists were not good nation-founders. But there were “clear-minded democrats in Kenya”, men like Raila Odinga, George Anyona, and Koigi wa Wamwere, all of whom he represented in court, political dissidents who he felt straddled political thought and political practice and “whose lives bear witness to this even though there are no books or articles written about them.” Mr. Kuria pointed out that while Kenya’s constitution was based on AngloAmerican political thought, in contrast to the American constitution, the question of how far a constitution can be amended had not been thought out for Kenya, and the result were amendments between 1963 and 1968 that changed liberal democracy to authoritarianism. He wondered aloud “How can a people who rejected authoritarianism countenance amendments that revert to it?” before turning to Locke to make his argument that “people have a right to revolution.” Unfortunately, scholars did not provide intellectual leadership in promotion of democracy; this was left instead to lawyers, clergy, and politicians, as well as newspapers and other publications. Clergy fought for democracy from the pulpit and lawyers, influenced by western traditions, in courts, while politicians held public meetings. Eventually there was entry of a business class – men like Kenneth Matiba and Charles Rubia – into the reform arena. Individuals from traditional civil society organizations [not the “civil society” that was eventually organized as the reform movement in order to push a reform agenda structured around the demand for a new constitution] were also involved but mainly from conservative groups like church and business organizations where individuals like Reverend Njoya of the Presbyterian Church of East Africa (PCEA), Bishop Gitari of the Anglican Church and Bishop Dinge of the Catholic Church were trailblazers that forced these institutions to move away from a policy of disengagement that had morphed into a tacit support of government. In the nineties, the leaders of the reform movement were principally lawyers but organizations became more involved. Lawyers and clergy made the most imaginative use of their organizations to articulate the need for a new constitution. Politicians worried that this intellectual leadership would become political leadership and there was reluctance to give government positions to intellectual leaders even though political

 

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leaders had no intellectual vision. In his words, “the 1990s was about conceptualizing what needed to be done.” After civil society organized a strike for August 8, 1997 that Mr. Kuria states was 90% effective, the government conceded the need for constitutional review. According to him, the IPPG stole the constitutional project from its owners – marking an agreement between KANU and the opposition that civil society should not be involved in the process. After the strike, politicians wanted to control the agenda, and chose to remove the “real experts” from the process and bring in their own. He cites as a more recent example of this the fact that “there were no constitutional experts in the CoE [the Committee of Experts on Constitutional Review who started their work in late 2009 and produced the draft that eventually became the new constitution of Kenya].” Given the make-up of the CoE, this statement only makes sense if we think of “experts” as those members of the reform movement who initiated and guided the constitution-making process in Kenya. Pheroze Nowrojee, another well-known reform activist and lawyer who was at the time of my fieldwork the spokesperson for the NCEC, echoed Mr. Kuria’s sentiment when he began our interview by pointing out that there was plenty I didn’t know and couldn’t understand about the differences between the situation in Kenya and that in the US where I was based when it came to constitution-making and the various processes that surrounded it. Now, the main reason that I was even conducting this interview was because I acknowledged that I lacked the kind of particular and contextualizing information that was crucial to understanding reform and constitution making in Kenya. Yet, I was still struck by the fact that Mr. Nowrojee led off with that particular statement. In retrospect though, it is clear that part of what I was being dissuaded from doing was claiming some kind of expert knowledge of the situation that failed to take into account the particularity of the Kenyan process and the role of civil society activists like Mr. Nowrojee, Mr. Lamba, and Mr. Kuria in it. This question of who is and can be an “expert” also provides a way of reading a joke Mr. Lamba made at my expense when he was introducing me to his staff after explaining my research to them. Having already noted to me that he could do the work that he thought I needed to do in a couple of days while it would take me months, he

 

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made sure to sarcastically mention to his staff that I had lived outside the country for almost the entire period of constitutional reform yet had returned as it neared its conclusion to write about it. We all laughed, some, as you might imagine, less happily than others. Yet I understand his point, in many ways my research, and the very fact that I could conduct it, threatened to further obscure the role the reform movement had played in transforming the country politically, and to diminish the contributions of those in the movement who had spent time and energy, and risked their livelihoods and often their lives, in resisting the government and catalyzing change. More than that, what were for me just names, places, and dates that I could attempt (and probably fail) to connect in order to tell the story of a movement, were for him a network of people, places, ideas, events, and relationships through which a movement had come together and been nurtured. The concept of reform for Mr. Lamba and for others who had taken part in the movement was not simply an abstract ideal. Rather, its invocation brought together a particular constellation of people, events, concepts, and relationships that could never be divorced from the process that led to the promulgation of a new constitution for Kenya in August 2010. Part of the IPPG reforms was the passing of an act of parliament to ensure constitutional review.31 Mr. Lamba calls the Act “draconian” but does not elaborate on what he means by that, instead focusing on the fact that while the opposition politicians claimed they fought for the act in an attempt to bind the government to the review process, it was really just all about the elections and giving themselves an ability to participate in the general elections on what they hoped was a level playing field. It is hard to avoid Mr. Lamba’s inference here that the opposition politicians were invested far more in their personal ambitions and focused on what they could gain through the IPPG than in what was best for Kenyan society as a whole – which was the constitution-making process that had been initiated by civil society. The opposition loses the 1997 election and the NCEC did not have the same strength after that election. NCEC started struggle to repeal the Act insisting on the need for a “people-driven constitution” but was told to send their views to Attorney General. A meeting was held on the constitution at Bomas of Kenya in 1998, made-up of people who had submitted views to government, who Mr.                                                                                                                 31 The Constitution of Kenya Review Act, 1997  

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Lamba described as a “very diverse set of actors, opportunists, etc.” The “reform movement” was “no longer leading the constitutional process” and found itself, instead “falling on the same plane as everyone else.” Mr. Kuria echoes Mr. Lamba, stating that the constitutional review process from 1997 onwards had “removed the owners” of the constitution making process, and moved away from the idea of a “people-driven” constitution. While civil society had insisted on a constituent assembly to draft the constitution, arguing that this was the only way of allowing Kenyans to exercise their popular sovereignty, the passing of the Constitution of Kenya Review Act, 1997, which transformed the constitution-making process into an official, government-mandated and controlled process of “constitutional review” indicated to Mr. Kuria that the idea of a constituent assembly was officially off the table. However, according to Mr. Kuria the review process still needed political and constitutional theory and practice, but while the politicians didn’t mind theory from outside the country, local theory [from reform activists] was not allowed. Civil society, however, still contributed even after being removed from the process. One of the ways they did so was the initiation of a parallel process to that of the government’s, the Ufungamano Initiative. Mr. Lamba describes the Ufungamano Process as one that brought faith groups, politicians, and civil society together with an eye to amending the act and making it acceptable. It is through this process that according to Mr. Lamba, the “reform movement” became a part, albeit on the periphery, of the official government sanctioned review process. This after concerted efforts made by Yash Pal Ghai, Chairman of the Constitution of Kenya Review Commission (CKRC) to merge the CKRC and Ufungamano processes.32 However, the NCEC, under whose banner the reform movement was still organized, did not participate officially at the Bomas constitutional conference organized by the CKRC in 2003, because movements were excluded and only registered groups (e.g. church groups) were allowed to participate. Mr. Lamba, therefore, is interested in focusing in on how the reform movement and the actors involved in it get to participate again in the final round of the constitutional process [which followed the post-election violence of 2008 and ended up with the                                                                                                                 32 The CKRC was the main organ, along with Parliament, tasked by the Constitution of Kenya Review Act with writing a new constitution for the country.  

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promulgation of the new constitution in 2012]. He says that the members of the reform movement are brought into the process of designing the law and civil society is brought in as a reference group. Since our interview, however, it is clear that the reform movement has re-emerged in a different location – at the moral centre of the implementation process. Ultimately for Mr. Kuria, regardless of the position that civil society occupied in the formal, government-led, constitutional review process, the success of the process was only made possible because the institutions that emerged in this particular period were freeloading on the work lawyers, clergy, and the rest of civil society had done to set the stage for constitution making. For him, the biggest achievement of civil society was convincing the Kenyan public that they needed a new constitutional order. Chantal Mouffe proposes “to distinguish between two forms of antagonism, antagonism proper – which takes place between enemies, that is, persons who have no common symbolic space – and what [she calls] ‘agonism’, which is a different mode of manifestation of antagonism because it involves a relation not between enemies but between ‘adversaries’, adversaries being defined in a paradoxical way as ‘friendly enemies’, that is, persons who are friends because they share a common symbolic space but also enemies because they want to organize this common symbolic space in a different way.” (2005: 13) She does so because it is her contention “that it is only in the context of a perspective according to which ‘difference’ is construed as the condition of possibility of being that a radical democratic project informed by pluralism can be adequately formulated.” (2005: 19) I borrow Mouffe’s concept of “friendly enemies” in order to provide a framework through which the competition between “civil society” and elected “politicians” in Kenya can be understood. I, however, want to use this concept as a way of thinking about the kinds of affective and intimate interactions and relationships are important to the constitution of these two groups, as well as shared by them. Civil society activists and politicians in Kenya are friendly enemies not just because they share a symbolic space and are interested in organizing this symbolic space in different ways, but also because they inhabit the same particular social worlds and social locations through which this symbolic space is objectified and made available for meaning-making.

 

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While it has been widely-acknowledged in civil society circles, most notably by Willy Mutunga, (1999) that constitution-making was a particularly middle-class project emerging out of a very specific, largely Nairobi-based, group of intellectuals, scholars, lawyers, and other professionals, this has not stopped the perpetuation of the notion that constitution-making represents not just the interest of “the people” of Kenya, but the specific way in which this “people” chose to have their interests recognized, advanced, and protected. Mr. Kuria’s last point about civil society’s biggest achievement being convincing the Kenyan public that they needed a new constitutional order, suggests instead that rather than being a reflection of some national desire, constitutional reform was a prescription offered up by “civil society” to alleviate the symptoms of a sickness that they identified and diagnosed. The drive for a new constitution, therefore, did not necessarily come out of the needs, desires, and practices of the Kenyan public. Rather, the Kenyan public can be seen as a construction around which a particular group of individuals, whose location, experiences, life-choices, life-histories and lifestyles provided an opportunity to form intimate and affective bonds with each other, created a professional, progressive, middle-class identity. The push for a new constitution was a strategy employed to narrate, perform and experience this identity, with the state serving as its ultimate guarantor. A Middle Class Project In Constitution-Making From The Middle: Civil Society and Transition Politics in Kenya, 1992 – 1997 (1999), Willy Mutunga, doyen, by dint of a combination of experience, reputation and affection, of Kenya’s Constitution-Making and Reform Movements, former Executive Director of the Kenya Human Rights Commission, and current Chief Justice of Kenya, presents his reader with an analysis of the constitutionmaking project that helps link three distinct ideas. First, he acknowledges that “the constitution-making project that the Citizen’s Coalition for Constitutional Change (4Cs) [had] been engaged in [was] a middle class project, situated in the ‘bourgeois’ sector of civil society, [and relying] heavily on liberal and neo-liberal concepts of civil society.” (1999: 19) In fact, “invoking positive approaches of the liberal and neo-liberal theories

 

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has definitely been the most pronounced aspects [sic] of the story that has been told.” (1999: 239) Second, Mutunga suggests that this “project, however, has had a radical component that aims at inheriting the Mau Mau Movement … [by] making the constitution-making project a mass movement with community roots all over the country. … [For this reason,] the agitation for “bourgeois rights” is seen by the radical component of the project as a positive crusade that can lay a basis for the achievement of basic needs for all Kenyans, an achievement that is a radical project.” (1999: 19) Finally, Mutunga suggests, “this intellectual leadership must be reflected in politics and in the mobilization of the people for a just and democratic order.” (1999: 242) Expounding on the framework for this political intervention, Mutunga claims that the “Kenyan middle class seeks to forge a clear and viable political alternative that the rulers of the New World Order can embrace. The middle class in the Kenyan sectors of civil society is also convinced that a political alternative in Kenya, principally, should come from the various sectors of civil society.” (1999: 22) So, Mutunga, in describing the work of the 4Cs and the reform movement, basically maps out a middle class political project that has a constitution-making component, with a radical component contained within it, that is made possible through the struggle for bourgeois rights within a liberal theoretical framework. I lay all this out for a number of reasons, none of which is to suggest that I have captured either the essence or the complexity of the work that the 4Cs engaged in or of Mutunga’s political and theoretical intervention. Rather, I am interested in the extent to which the conversations I had with various members of the reform movement and participants in the constitution-making project, both those who were actively involved in the period covered by Mutunga’s book and those who have taken on the reform mantle since, consistently involved some version of this framework being repeated to me. The truth of these ideas, and the necessity of various social and political practices linked to them – in particular those surrounding the production, and performance of a cosmopolitan and progressive middle class identity emerging from and invested in liberal political and economic ideals – appeared to have been accepted un-problematically by most of my informants. This presents a particular type of anthropological problem. Not

 

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only is it necessary to interrogate the processes through which these ideas come to exist as taken-for-granted facts, but also, given the fact that these ideas emerge, very selfconsciously, out of liberal theory and the processes through which this theory is produced, activated, and utilized, it means interrogating these latter processes as well. So, not only do we have to ask who the middle-class is to whom Mutunga is referring, but we also have to investigate how the processes that produce this middle class, as a category of knowledge and as the origin of the particular political project that constitution-making acts to facilitate, come together to create state and society as research and political objects that are amenable to inquiry, intervention, and manipulation by this middle class. It is not enough, therefore, to just inquire as to what constitutes these categories and objects, it is necessary to think of the process of their constitution as having both a social basis and emerging as part of a particular project with particular parameters and particular aims. In fact, it is necessary, therefore, to think of this middle class not just as the source of this political project but as its ultimate act of intervention. So, who is the middle-class to whom Mutunga is referring that serves as both the origin and ultimately, the intent and the effect of the political project that constitutionmaking is an integral component of? In spite of the frequent invocation of Marxist language about the bourgeoisie, the proletariat, and “the rule of the comprador class,” which is seen as “politically dangerous and based on a very narrow popular base … [as well as] dominated by a backward and fascist cabal that is unpatriotic, arrogant, insensitive and politically narrow-minded,” (Mutunga 1999: 22) the middle-class that is the object and the subject of the political interventions made by the reform movement and constitution-making project, seems to be an animal of a totally different kind. For one, even though the reform movement understands itself as situated in the ‘bourgeois’ sector of civil society, and representative of interests of a “Kenyan middle class [that] wants a new political environment that guarantees its livelihood and survival … [and] is scared of any disorder and instability” (Mutunga 1999: 22) that threatens its material interests, it still insists that it can not only accommodate, but also facilitate a more radical ideology aimed “at inheriting the Mau Mau Movement … making the constitution-making project a mass movement with community roots all over the country [and the] radical restructuring of the status quo. What is it about the process of

 

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constitution-making, in particular the process of creating a “people-centered” constitution, that makes what at first glance appears to be an obvious contradiction between the goals of the middle class, and the “radical” goals of the masses, including the complete restructuring of a status quo that the middle class are invested in maintaining, seem not only plausible, but probable, and even more than that, certain, absent the selfserving activities of a “backward and fascist cabal that is unpatriotic, arrogant, insensitive and politically narrow-minded”? The beginnings of an answer to this question can be found in a claim that Mutunga makes right at the start of his excavation and restatement of the work of the reform movement when he states: “History records that it has been the culture of Kenyans to resist domination, oppression and exploitation.” (1999: 1) Three concepts are linked in this statement that continuously emerged – in interviews, in public discourse, and in the academic literature – almost always in relationship to each other, providing a context through which to investigate what work these concepts were intended to do, on whose behalf, and with what ultimate effects. “Kenya” is revealed in this statement to be an object that exists in the ethnographic present, but in a particular relationship both to history in general and to its particular history. History here has an independent subjectivity – it can make a record of Kenyan culture – but history is also a dependent object; it comes into being in a particular relationship with Kenya, a relationship that is filtered through the fact of resistance. Kenya, history, and resistance constitute each other, and it is through this relationship that the particular middle class that is the subject, object, and ultimate effect of the reform movement’s political project emerges. This, however, takes the intervention of another concept – that of theory – through which the other three concepts, and their interaction with each other, are made accessible to political interventions such as constitution making. It is theory – and by this I mean the ability to establish the existence of an independent object of inquiry that through this act of creation is immediately made available to knowledge and manipulation by those who create knowledge (and in so doing create themselves) – that allows the middle class to establish a position from which they can claim an ownership stake in the processes of production.

 

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As an ethnographic object, the Kenyan middle class should be seen as what James Ferguson termed a “precarious achievement” (Ferguson 2006: 112) of a theoretical process, a process that is best understood as a political project that makes itself visible as a social formation. The attempt to make a constitution from the “middle” is an attempt to constitute a social formation, both theoretically and empirically, from and through which political action can be imagined, attempted, and effected. Roger Rouse, in his analysis of class relations in the contemporary United States suggests that increasing use of the term “class” in reference to “the phenomenal forms through which class is commonly expressed: occupation, income, patterns of expenditure and, more broadly, “lifestyle” … provide general models for conceptualizing both the changing nature of the class structure and the kinds of interaction and alliance that should take place within it” (Rouse 1995: 386) as well as anxieties around the processes tied to these changes. For Rouse, the professional-managerial class, in the age of transnationalism, has been conditioned by “the growing emphasis on professional services and the coordination of global production processes” (1995: 370) in a way that has undermined “the terms of the social compact.” (1995: 370) A cosmopolitan and “diverse” professional-managerial class has been created by “recruiting, researchers, managers and academics from a global pool of talent,” (1995: 384) undermining, or at least appearing to undermine, the kinds of class politics that were conceptualized and put into practice within the nation-state system. Of particular interest for my research then are the professionals and “mental workers” who make-up what Barbara and John Ehrenreich describe as a professionalmanagerial class. The Ehrenreichs “argue that [this] “middle class” category of workers … – the technical workers, managerial workers, “culture producers, etc. – must be understood as comprising a distinct class in monopoly capitalist society … [that] exists in an obviously antagonistic relationship to … the “working class” … [and] is a formation specific to the monopoly stage of capitalism.” (Ehrenreich and Ehrenreich 1977: 9-10) In a response to the Ehrenreichs, Martha Gimenez (1977) argues that the idea that these workers make-up a distinct class is misleading because it brings together “theoretical insights corresponding to two levels of social reality: the level of the mode of production and the level of social formations.” She goes on to argue that at “the level of

 

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the mode of production, classes are relations among people mediated through their relation to the means of production, … [while] at the level of capitalist social formations … the class structure has greater complexity … [partly due to] the heterogeneity given to the capitalist and working classes by the social and technical division of labor.” At issue here is the definition of “class” and the relationship between the mode of production and the social formations that attend it. The Ehrenreichs see class as “characterized by a common relation to the economic foundations of society – the means of production and the socially organized patterns of distribution,” (Ehrenreich and Ehrenreich 1977: 11) relations which are “actual relations between groups of people, not formal relations between people and objects.” (1977: 11) This focus on actual relation between people is tied to a second definitional characteristic, the idea that “members of a class share a common life style, educational background, kinship networks, consumptive patterns, work habits, beliefs.” (1977: 11) While, Gimenez challenges the fact that the Ehrenreichs emphasize “the power of the PMC over the working class rather than the PMC’s subordination to the capitalist class”, an emphasis that “follows from their empiricist approach which leads them to overestimate the realities of social stratification and underestimate the value of the Marxist analysis of the processes determining the forms of social stratification,” it is precisely this empirical focus that is of most interest to the anthropologist. Claims about power and subordination are precisely the things that need to be subjected to empirical investigation, and not for the sake of empiricism qua empiricism but because of the necessary relationship between empiricism, analysis and the development of theory. The Ehrenreichs themselves “strongly emphasize that class is an analytic abstraction, a way of putting some order into an otherwise bewildering array of individual and group characteristics and interrelationships.” (Ehrenreich and Ehrenreich 1977: 11-12) It is for them, also, and precisely a way of describing the relationship that exists between the capitalist mode of production and the social formations that emerge with, and are constitutive of it. Rouse’s interest in describing the role of the cosmopolitan professionalmanagerial class in the age of transnationalism is conditioned by a desire to identify “the kinds of domination and oppression that [people] face … [and to] develop effective

 

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challenges to these kinds of power [once] one understands the ways in which they operate.” (Rouse 1995: 398) In particular, he is focused on helping radical critics develop alternative stories “about the changing nature of the world and … prescriptions about how to deal with the changes … [so that] the fluidities of domination and exploitation can be more easily grasped and people differently located in relation to such privilege and power can more readily appreciate the overlapping nature of their interests and their capacity for cooperation.” (1995: 398-399) My interest in the cosmopolitan professionalmanagerial class, however, comes from a desire to turn this radical project and the theory that informs it, into an object of anthropological inquiry. In order to understand this process of its construction, it is necessary to identify the particular social and cultural practices that create and reflect the context in which this middle-class construct of “Kenya” appears and is made legible and legitimate. Finally, my claim here is that it is necessary to think of these social and cultural practices, and their context, as elements of a political project: that is as elements of a competition for the social and economic capital necessary to lay a claim to the productive processes and to manipulate them for specific purposes and towards specific ends. For the Kenyan middle-class, again, this begins with history, and with the attempt to create a history of Kenya that can serve as the basis for a middle-class knowledgemaking and political project. This history is often one of resistance by “the people” of Kenya to attempts to dominate and oppress them. What gives this history particular cachet is that it is connected to a larger history, that of Africa and its resistance to, emergence from, and continued struggle with colonial oppression. Kenya is “African” and that implies a certain being-in-the-world-ness that provides a jumping-off point for a political project. Africa has to be known and the production of this knowledge, even as it traces, and perhaps most accurately, precisely because it traces, a knowledge-making project that can be properly termed “colonial,” needs to find an authentic “Africa” that can be used to legitimate and help create a local, middle class knowledge-making and political project. Mutunga prefaces his discussion of the constitution-making project by saying that “African scholars … may have to look more deeply at Africa’s own history and draw creatively from its own heritage if a genuine intellectual revolution is take place in a

 

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paradigmatic sense. … [As] Africa continues to experience institutional and constitutional collapse, there are increasing pressures on African scholars to build on some of [the] initiatives [of the Afrocentric school] as part and parcel of the global struggle against Western intellectual hegemony.” (1999: xv) Mutunga’s point is that new intellectual paradigms – that is new ways of knowing and understanding Africa at both the theoretical and the empirical level – or maybe more accurately what he calls a “merger of paradigms” is necessary to the actualization of the political project to which the constitution-making project belongs. As he states, “What is being argued here is simply that a synthesis or a merger of the strengths of various paradigms can form a basis of articulating a theoretical framework which can address the problems of national survival.” (1999: xviii-xix) To be fair, rather than claiming that Mutunga is arguing that Africa is constant object that simply needs to be theorized differently and by a different set of “local” scholars who would have a different, and perhaps, more nuanced, more accurate, more generous, and more empathetic idea of what Africa is and how to think and talk about it. Mutunga could be taken as arguing against the idea of seeing Africa as anything other than the precarious achievement of a knowledge-making process that can be upended and that should be the subject of inquiry. And his call for a “merger of paradigms” reveals an understanding that not only is “Africa” this tenuous theoretical category and empirical quantity, but that it a category and a quantity with its own history, one that cannot simply be cast aside or replaced. What is clear from Mutunga’s book, however, is the centrality of the “rights” concept to the constitution-making project. It is these “bourgeois rights” that act as the link between the bourgeois component of civil society and their emphasis on liberal and neoliberal theory, and its radical component, that emerges out of “the people” and is focused on meeting their basic needs. The discourse on rights, therefore frames the middle-class constitution-making project and, in a more general sense, frames the Kenya that is created through and as the social and material practices that allow this middle-class to be made legible and legitimate through a particular knowledge-making process and the political project that this process is attached to.

 

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In notes he provided accompanying an interview I conducted with him in 2010, before he was named Chief Justice of Kenya, Mutunga, while noting the structuring role that the debate between revolution and reform continues to play in defining and framing the political response to domination, both in Kenya and around the world, emphasizes that “it is within this context that constitution-making and human rights, particularly in the so-called Third World, needs to be located.” Indeed, “it is in this context that the human rights and social justice paradigms (and [the] constitution-making paradigm have become relevant given the polarization occasioned by the events of 1989 and 2008,” where first the socialist/communist and then the liberal/neo-liberal paradigms came up for challenge as “paradigms of development.” For Mutunga, “human rights and social justice paradigms offer an intellectual, ideological and political environment to take up the ideological discussions of old without the polarization that marked those debates. If the paradigms can do simply that (and this has to be interrogated as well) then the 21st Century gives us the opportunity to discuss the development paradigm that will rescue the world from war, poverty, disease and crime.” An “African” Nation-State “The problems of Africa are in my heart.” It was with that statement that Tom Kagwe, who had been involved in the reform movement, in community organizing, and in the constitution-making process in various capacities for more than a decade, and who was now a staff member at the Kenya Human Rights Commission, one of the country’s oldest and best known governance civil society organizations, opened our interview on the Kenyan constitution-making project. With the statement he tied the constitutionmaking project to a concept of Africa that emerges in relationship to pathology. “The problems of Africa,” however, also implies that “solutions” are possible to these problems. The relationship between “problems” and “solutions” is, and has always been mediated, in and as this African context, by the State. Mr. Kagwe goes on to suggest that in judging [what was at the time of our interview still] the draft constitution, it was necessary to investigate whether it “one, [encompasses] broad views of Kenyans who have spoken since we started this war? Has

 

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it maintained gains made along the way? … And, two, [if it] is capable of moving us towards Consociational Democracy – nobody gets nothing, nobody gets everything, and therefore everyone gets something.” He answers yes on both counts but goes further, saying that perhaps, “we won’t have a liberal democracy as such – maybe start an Afrociational Democracy, where we agree that this is African context, [with] its own ethnic groups that have been fighting for centuries, [which are] now fighting because of politics.” Kagwe’s suggestion of creating an “Afrociational Democracy fits with Mutunga’s call for a “merger of paradigms” and for African intellectuals to draw creatively from African heritage in coming up with theoretical paradigms that can be used to “articulate a theoretical framework which can address the problems of national survival.” Both Mutunga and Kagwe rely on the idea of Africa to make their arguments both about the kind of politics that attends the democratic project in Kenya and about the kind of knowledge that can be produced as Kenyan. It is the relationship between what is “Kenyan” and what is “African” that provides a space in which the democratic project can be imagined and through which knowledge about it can be produced. This connection between knowledge making and the democratic project is echoed by Paddy Onyango, another long-time reform activist and Executive Director of the 4Cs, who, in making an argument for the use of civic education to create value-centered political leaders, claims that the “problem of Africa has been leadership.” Apollo, a young community organizer based in Nakuru and the Civic Education Coordinator in the area for the Committee of Experts on Constitutional Reform (CoE) when remarking about the lack of creativity that is a by-product of an education system designed with the interests of a colonial power in mind, bemoans that “our African-ness is lost. Our philosophies are lost. We’re never good enough.” This link between education and politics and its emergence in this space that is created between what is “African” and what is “Kenyan” is reiterated by Atsango Chesoni, former Vice-Chair of the Committee of Experts, when describing how she came to participate in the pro-democracy struggle and in the reform movement. She explains in an interview that in school she studied African and African American studies and as a consequence studied several liberation movements. At a very young age she was around

 

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people from liberation movements. When living in England, she linked up with people who were Kenyan dissidents. She was interested in being part of the change at home, and in the Pan-African movement. What is revealed by these statements is not just that the concept of “Africa” is important to the knowledge-making and political projects of reform activists in Kenya, but also that this concept works in very particular ways to continuously activate these projects. The Africa that is produced here is a place that appears as a coherent and stable object precisely because, and only is as far as, it is constituted as an ephemeral concept that can be used in multiple contexts for various and varying purposes. It is this particular quality of “Africa,” the fact that it is stable only as long as it remains transient and impossible to pin down, that is key to understanding the middle class political project and the social formation through which it manifests. This is a question of the relationship between history, theory, and affect. As Mr. Kagwe’s statement makes clear, it is not just that “Africa” has “problems,” but rather the fact that “the problems of Africa are in his heart” that activates the search for solutions through the problematic of the State and in this particular case, the constitution-making process. Africa has a history and claims about this history are an arena for both intellectual and political competition. Mutunga’s develops his argument that African intellectuals need to “articulate a theoretical framework which can address the problems of national survival” “as part of the global struggle against Western intellectual hegemony” by identifying three particular strategies through which this can take place. These are a “strategy of indigenisation, defined … as the increasing utilisation of the indigenous knowledge base of intellectual guidance to addressing problems of the twentieth and the twenty-first centuries and beyond. [A] strategy … of domestication … [which] involves making “imported” paradigms more relevant to the local context by a systematic process of cultural integration. … [And a] strategy … of diversification … [which] is essentially an exercise in diversifying those on whom Africa is dependent in terms of ways of perception and conceptualisation.” (xvii, emphases in the original) Anthropology has played a significant role in developing these “imported” paradigms and in fact in developing both an “African” context and an “African” concept, including, most notably, through those anthropologists of the “structural functionalist”

 

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school such as Meyer Fortes, A. R. Radcliffe Brown and E. E. Evans Pritchard. While structural functionalism has been critiqued for its ahistorical nature, it is this particular quality that helped produce “Africa” as a coherent and situated object that opened up an arena for conflict about what Africa actually is, means, and can be used to do. Francis Nyamnjoh, in arguing for greater and more nuanced reflexivity – that is our “ability to determine, surface and factor in the extent to which our dispositions, social backgrounds and social positions influence, in often veiled and subtle ways, the perspectives we hold on how different or similar to us those we study” (Nyamnjoh 2012: 66) – claims that “inspired by the Malinowskian model about making an objective field science of our obviously subjective endeavours, [anthropologists] have mapped or parceled Africa out into zones and often defined and confined those zones racially, geographically and culturally.” (2012: 66) While Njamnjoh’s central argument is about the role to be played by African anthropologists in “comprehending the continent,” (2012: 68) and to challenge the notion that “anything is knowable to anyone who comes knocking with questions,” (2012: 68) he make these arguments from within the confines of anthropological practice, choosing to point out that “if belonging to Africa is a contested and ambiguous relationship, belonging to the tribe of anthropology is not any different.” (2012: 71) Anthropology, therefore, is a key location, not only to challenge, as Nyamnjoh does, the kinds of knowledge that are and can be produced about “Africa,” but also to investigate what it is that the concept of “Africa” helps bring into being and for what purposes. This is as true when challenging Western intellectual thought as it is when complicating the ways in which African intellectuals, of the anthropological variety or otherwise, make use of “Africa” to advance their own particular social positions and political ideologies. The question of what it is “African” intellectuals produce when they talk of Africa, both in terms of the knowledge produced and of how cultural “dispositions, social backgrounds and social positions” participate and/or emerge through that process, requires an interrogation of how that knowledge is produced, in response to what cues, and in the service of which particular projects. If we are to take seriously Nyamnjoh’s entreaty “to be flexible and accommodating to the possibility of Africa surprising us in the most unlikely ways by

 

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appearing where we least expect it, or being invisible where we most expect to find it, … [to] not define and confine, a priori, Africans and their cultural identities … [and] to pay more than lip service to the flexibility, negotiability and processual possibilities of identities in and of Africa” (2012: 82) then we must use ethnographic research and anthropological knowledge to investigate how “Africa” has been allowed to appear and been made legible, and in what contexts.

 

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CHAPTER FOUR: CREATING THE PEOPLE Introduction In this chapter I reveal how a Kenyan “civil society” has made use of the idea of “human rights”, as well as of national civic education exercises, to make a claim to state power that rests on locating “the people” and either having them present their desires and beliefs in a human rights idiom or, having established that human rights are a universal good, speaking in the language of rights on behalf of “the people” who now appear as holders of those rights. I argue that interventions into the field of the “state”, whether carried out on behalf of human rights or nationalism or some other global, abstract concept, never serve to de-center state power but merely to regenerate it. This is because the inevitable focus has to be on the processes through which state power is created and competed for. By tracking the nationwide civic education process and the process put in place by the Constitution of Kenya Review Commission (CKRC) to collect public views around the country in anticipation of a constitutional conference through which a new constitution was to be drafted, I show how this attempt to locate “the people” and to structure government around their sovereign authority, I show how the competition between civil society activists on one hand and elected politicians on the other is organized around the process through which “the people” are accessed and made to speak. Even though the argument from both is that their strategies and practices are about representing the local and particular needs and desires of “the people”, the evidence I present suggests, instead, that what “politicians” and “reformers” are fighting over ultimately is whose abstractions best represent the general and the universal. By conducting an examination of several events either directly linked to or surrounding the national civic education program that accompanied the launch of the Proposed Constitution of Kenya and preceded the national referendum on the same, I show how civic education process was less focused on its stated mission of starting a public conversation around the constitution and educating the public so they know what they were voting about, and instead was yet another front in the battle to define Kenyan

 

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society from a particular class position. Ultimately the great majority of resources intended for the civic education effort was directed towards the efforts to get the document passed, and the civic education exercises themselves seemed to primarily serve as a defense of the constitution and of the expertise of those who wrote it and a validation of the language of reform and of its strategy. I then focus on the CKRC process to reveal that it is abstract and universal values like freedom, democracy, and human rights, rather than the particularities of social life, which are the starting point for the processes and reform and democratization. The process through which the CKRC collected views worked to institutionalize a political practice that was built around identifying “the people” through legal and administrative means. More than that, however, it sought to structure this legal and administrative practice around an idea of the “law” that identified human rights activists, and the discourse of reform, as the legitimate source of the claim to represent “the people.” Performing the Constitution I wait patiently as the line I am standing in crawls towards the entrance to the grounds of the Kenyatta International Conference Centre (KICC). This particular gate sits on City Hall Way, right across the street from City Hall and the Holy Family Basilica. Nairobi’s Central Business District is not very large, and all the government buildings are clustered together, the Parliament buildings are on one side of the KICC compound, with the main court buildings on the other. Harambee House, which is occupied by the Office of the President, is right next-door, and so are the Ministry of Foreign Affairs, and across Harambee Avenue, the Treasury Building and the Central Bank. There were more people there than I had anticipated, the event after all was really only to launch the national Civic Education program organized by the Committee of Experts on Constitutional Review (CoE) in preparation for the national referendum on the proposed constitution. But as I finally approached the gates I realized that the event was larger than I had thought and even as early as I thought I was, it might be tough getting a seat in the huge conference hall in which the event was being held. I walked to

 

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the police officers at the gate, had my bag inspected as is the case when one enters any government building, and then joined all the other people streaming from booth to booth started making my way to the hall through the constellation of information stations that marked our path. Like everyone else, I sought out each and every one of various documents and publications on offer at those booths and from the army of volunteers who milled amongst us in bright green shirts. It was clear that each and every one of us wanted to make sure we have every pamphlet, every flyer, and every word on a page that was on offer. I keep telling myself that the reason that I am collecting these documents, and collecting them all…does that booth have something different…how did that guy get that document…are they giving something else out at that entrance…is that something new…are there enough copies to make sure I get one…is for my research and that I will actually painstaking over the information in each of them. I have my doubts though. I suspect that for most of us here, we like the security the documents provide, a sense of place and of belonging. We also don’t want to miss out on anything that might be crucial or important. The documents also provide and legitimate a nascent sense of purpose. The glossy covers feel good in my hand. They tell me that I’m doing something today; something important; something that feels like research. I find a seat and slide into it. The hall is huge and already full, and I arrived relatively early so I know I have a while to wait before things get kicked-off. I should read… I sit up in my seat looking around. The VIPs are coming-in from somewhere. I think at the far-end of the hall. For the umpteenth time in the three hours I have been sitting here waiting I think, I should have watched this on TV. I actually spend most of my time looking at the large screen to the far right of the stage, it’s the only time I can really see anything. A friend sends a text message to tell me who is here. There are some ministers, Members of Parliament, and other government officials. I can’t see anything, and on television they have close-ups with accompanying commentary! I stop reading the texts. I really should have realized it would be on TV, although it probably took my being here to understand that this was a made for TV event. All that follows is sound

 

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bites and performances. Not quite a political rally but a political event meant for mass consumption. But also remarkably poorly executed. Not in terms of the overall quality of the production – it does seem like some time and effort went into making the event run relatively smoothly. But it feels really flat. These are clearly not politicians; they have no idea how to move a crowd. The gravity of what is being discussed – a new constitution to remake our wonderful country – is expected to do all the work. This is Moses come down from the mountain with the Ten Commandments. If we were worthy we would understand the importance of what was being offered to us. We would understand the importance of the moment. But we are clearly unworthy – many of us in the hall are actually fast asleep (and really it is the perfect place for a nap) – and we need to be told why what is being offered to us is so important. Hence the civic education program; we were brought to the well, now we need to be taught how to drink. The performances before the main event – songs, skits, and plays – appear meant to do the actual work of both setting the mood and providing the information, albeit in the overly simplistic and earnest terms. Then the members of the Committee of Experts are invited to speak, each of them charged with presenting a chapter of the constitution. The elation in their voices seems disturbingly at odds with the overall mood of the meeting. By this time, at least a third of the seats are empty. People waited hours for the programming to start just so they could be busy enough to have to be somewhere else. People start leaving almost immediately the thing starts. I briefly contemplate moving to a better seat, but more literature is being handed out and I don’t want to miss a chance at mine… I think they’re finally handing out the proposed constitution and I have a feeling the rows ahead might already have received their copies. We are warned that someone outside is circulating an old draft, which has some words removed that alter the meaning of a section of the document. We are warned to be on the lookout, and note the difference of the dates on the document. I’m ready to leave. I see someone handing out some new literature and I figure I can just grab it as I walk out. The meeting is over anyway, and there aren’t that many people left in the hall, just the VIPs at the very front laughing with each other and the volunteers walking around looking purposeful.

 

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A Civil Society Program The reform movement claims the right to challenge, both morally and politically, the legitimacy of a state that does not, in its eyes, protect or advance human rights and the rule of law, the stance it takes, as evidenced both in the Constitution of Kenya, and in public and private musings and proclamations of members of the reform movement, itself brooks no challenge. Civil society and the reform movement have used the constitution making process, and the ideals of human rights and the rule of law that underpin it, to carve out a moral high-ground from where they claim to represent the legitimate interests of “the people” and be the legitimate heirs of a government power to intervene in and manage the development of society. Much of the work on the growth and potential of civil society organizations in Africa has happened in the post-1989 democratization and liberalization era, where “civil society,” emerged as a way of structuring the competition for state power. The differences between the pre-1989 and post-1989 order were “simultaneously completely opposed to one another and almost identical.” (Ferguson 2006: 97) The post1989 push for democratization under what James Ferguson has described as the “state and society approach” saw civil society “as a dynamic, emerging, bustling assemblage of progressive civic organizations that could bring about democracy and development if only the state would get out of the way” (2006: 96), with “structural adjustment … needed to liberate market forces to work their development magic.” (2006: 97) This is opposed to the pre-1989 “nation-building paradigm” which sees “development …[as]… the natural reward for successful national integration.” (2006:95) However, as Ferguson notes, the state and society approach and the nation building approach both make use of a vertical topography that has state power at the “top” and the local at the “bottom” with only the relative reification of top and bottom inverted. In the Introduction to Civil Society and the Political Imagination in Africa, Comaroff and Comaroff argue, that “in Africa as in other places, “civil society” evokes a polythetic clutch of signs. An all-purpose placeholder, it captures otherwise inchoate – as yet unnamed and unnameable – popular aspirations, moral concerns, sites and spaces of practice; likewise it bespeaks a scholarly effort to recalibrate worn-out methodological

 

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tools, and to find a positive politics amid conceptual confusion.” (Comaroff and Comaroff 1999: 3) The importance of civil society here seems to lie in its ability, as a conceptual category, to escape the limits of category – “the Idea of civil society has proven impossibly difficult to pin down.” (1999: 5) In fact “civil society becomes especially “good to think,” and to signify with, at moments when conventional connections between the political and the social, state and public, are perceived to be unraveling.” (1999: 12) The processes of state formation take us to the precipice of what seems to be an inevitable collapse of the logic of the state, and civil society appears as a way to gain some kind of footing in the inevitable chaos that will follow. Except that the chaos always seems to lead to the re-inscription of the logic of the state and its attendant economic, political, and social manifestations. What are the processes through which this re-inscription happens? Ferguson suggests that the common understanding of civil society that has it “appear as the middle latitude, the zone of contact between the “up there” state and the “on the ground” people, snug in their communities”, (Ferguson 2006: 93) and the historical shift from thinking about the state in terms of nation-building to thinking about it in terms of state-society relations, does not de-center state power in any significant way. This is because it does not take any of the categories as an ethnographic problem. Taking the state as an object of ethnographic inquiry has to involve not just an understanding of the processes through which the State apparatus abuts on, intrudes in, and remakes the lives of the individuals who are understood to be its subjects, or even an investigation into the processes through which a group of people – the “political elite” – make use of that apparatus to enrich themselves and reproduce their own power. Rather, the state itself has to be seen as a collection of individual and group actions, ideas, motivations, and strategies, which, together, come to be understood as the State. Treating the state as an ethnographic problem involves challenging the idea that the state, in any shape and under the thrall of any particular ideology or individual, has the ability to re-shape society in any pre-determined way or to meet any pre-determined goal or any particular idea of what the good society is. Rather it is necessary to take the state seriously as what it suggests, through empirical evidence, that it is – a process through which the idea of the State is rehearsed and performed for, and sold to, an

 

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attentive public; and ultimately, as it nears collapse in the face of its own contradictions and inadequacies, is refreshed, regenerated and reproduced. The Place of Human Rights To provide evidence of this point, it is necessary to turn to the process of civic education instituted and conducted by civil society, and to see it alongside the process through which the CKRC collected the public views that went into the writing of the constitution. It is the nature and fact of both these processes that is used to grant legitimacy to the notion that the constitution represents the sovereign will of “the people” of Kenya. Given that the constitution-making project was a “a middle class project, situated in the ‘bourgeois’ sector of civil society, [and relied] heavily on liberal and neoliberal concepts of civil society,” (Mutunga 1999: 19) no necessary connection exists between the discourse on liberal rights and the contention that a project built around the promotion of rights would benefit society writ large. The reason for focusing on the promotion of liberal rights is perhaps best summed up in the following description of the history of the Kenya Human Rights Commission (KHRC), taken from its website. KHRC is famous as an incubator of civil society resistance to the KANU government, and was one of the three organizations33 that together produced a first draft constitution. This statement offers up not just a justification for the focus on rights in the pursuit of reform, but provides an accurate and succinct summation of the socio-historical narrative that has been disseminated through the reform project: Kenya started off as a liberal democratic state on attaining independence in 1963. However, efforts to entrench this tradition were crashed [sic] in the mid 1960s through emasculation of multi-party politics. Kenya thus operated as a de facto one-party state with the Kenya African National Union (KANU) as the only political party. In 1982, it was made a de jure one party state until democratic forces reversed the situation in 1992. During this time, parliament was a rubber stamp of the executive, sycophancy was institutionalised, the judiciary was at the beck and call of the executive, radical intellectuals were incarcerated and exiled and the language of liberation was anathema.

                                                                                                                33 The other two were the Law Society of Kenya (LSK) and the Kenya Section of the International Commission of Jurists  

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It is against this background that in 1991 five Kenyans living in exile in the United States of America (USA) and Canada34 formed KHRC and chose the human rights language because it was easy for the middle class and donors to accept. Because of the overwhelming oppression prevalent in the country, and limited capacity, they decided to focus first on civil and political rights although they did not believe in the artificial dichotomisation of human rights. KHRC was registered in Washington DC in 1991 after which one of the founders was sent to Kenya where he was housed at Kuria, Ringera and Murungi Advocates. Later, KHRC was hosted by Kituo cha Sheria … The first grant was given by the Ford Foundation.35

There are a number of things worth taking away from this statement. The first thing to note is how issues are presented as being black-and-white and information offered in very stark and uncompromising terms. There is very little nuance to be found in the idea that liberal democracy was “crushed” through the “emasculation of multiparty politics”, or that “During this time, parliament was a rubber stamp of the executive, sycophancy was institutionalised, the judiciary was at the beck and call of the executive, radical intellectuals were incarcerated and exiled and the language of liberation was anathema.” The description offered here actually very much traces the tone of, and uses a lot of the same language found in, Makau Mutua’s book Kenya’s Quest for Democracy: Taming Leviathan (2008) and his Op-Eds for the Sunday Nation, so it would not be surprising to learn that he authored this statement as well. However, what is important to note here is the idea that political circumstances in which reform became necessary are well known and not open to questioning. The second thing that is made clear in this project is that a link exists between human rights, the middle class, and the donor community. While the connection to the donors seems obvious – the need for funding – it is less obvious why the founders of the KHRC needed to appeal to the middle class, especially given that the ultimate focus of the reform process and the constitution-making project was to create a “people-centered” constitution driven, it might be assumed, not by the needs of the middle class. I will spend some time in the next chapter talking more about what it means for the reform process that it was structured to appeal to the middle class, but for now I just want to point out that reform was interested in appealing to two groups who could be grouped                                                                                                                 34 Makau Mutua, Maina Kiai, Willy Mutunga, Kiraitu Murungi, and Peter Kareithi 35 See “Our History” section on the KHRC website. http://www.khrc.or.ke/kenya-humanrights-commission/history.html (accessed on August 17, 2013)  

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together through the prioritization of human rights language – the international community and a Kenyan middle class. The third thing to note is that this focus on human rights was originally seen as strategic, something Dr. Mutunga also mentions in his book (1999), chronicling the early stages of the constitution-making process and civil society’s role in it. However, despite the fact that this focus on “bourgeois rights” (1999: 19) was intended to serve a functional purpose, it almost immediately came to be equated with the idea of reform itself, and with the opposition to KANU government. Mutunga is quick to point out that the “Kenyan middle class wants a new political environment that guarantees its livelihood and survival [and that its] emphasis on peace and unity reflects the protection of its material interests.” (1999: 21) Yet, the link between the focus on liberal rights and the protection of middle class material interests gets lost when human rights advocacy becomes established not just as a governance practice but as the process through which individual subjectification is made possible and a Kenyan society created. In the same statement in which we are informed that human rights language was chosen as the vehicle for opposition to an autocratic and “oppressive” regime because it was acceptable to a middle class and to donors, we are also informed of how the KHRC works to actively disseminate this human rights language as a way of building the capacity of citizens to represent themselves and their particular needs. The KHRC describes itself as moving from a focus in 1992 to 1997 “on monitoring, documenting and publicizing human rights violations [and] linking human rights struggles with the need for reforms in political leadership and institutions” to beginning, between 1998 and 2003, to develop “capabilities of those affected by human rights problems to advocate for their rights [by investing] in community based Human Rights Education (HRE).” The Lessons learnt in this phase led to our decision to make additional investment in community-based programming. Reflections on the previous plan strongly concluded that there was promise for the realisation of a Kenya without human rights violations if we put more effort and emphasis in stimulating community capacity to institute change from below. We recognised that change could not be brought about by detached advocates of human rights but by the needy people themselves. We thus needed a new approach based on people’s agency and a relationship of solidarity and equality to transform structures of domination and disempowerment. …

 

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In the 2003-2007 Strategic Plan, we focused on strategies and actions aimed at enhancing community-driven human rights advocacy, through building of the capacities of citizens to deal with their immediate human rights concerns as well as engage in strategic actions to transform structures responsible for human rights violations. Human rights-centred governance was the overriding theme of this strategic plan, under the banner of rooting human rights in communities. In 2008-2012, we continued to consolidate our experiences and successes to expand the impact of our work and play an active role in procuring citizen-led reforms towards a more just, democratic and human rights-respecting Kenyan society.

In this telling, human rights has moved from being simply a way of reacting to and resisting an oppressive government, it has become the way government is to be constructed and evaluated, and more importantly, how Kenyan society is to be constructed. The easy slippage between the strategic use of “bourgeois rights” to challenge an oppressive government, occasioned by specific historical and political circumstances, and the idea that these rights should define what Kenyan society is, also elides the fact that middle class interests are not only linked to these rights, but that the rights themselves work to promote and protect, first and foremost those middle class interests. Gibson Kamau Kuria’s observation36 that “the biggest achievement of civil society was convincing the Kenyan public that they needed a new constitutional order” is restated by the KHRC, but this time with a focus on human rights discourse itself. In summary, KHRC has entered the public consciousness and legitimised the human rights discourse in Kenya. It rolled back despotism, pioneered economic and social rights in the country and produced individuals that have moved on to champion human rights in other arenas. For instance, a majority of the first commissioners at the Kenya National Commission on Human Rights (KNCHR) were from KHRC. The Truth, Justice and Reconciliation Commission (TJRC) established in the wake of the post-election violence of 2008 was a brain child of KHRC. The current Chief Justice, Dr. Willy Mutunga, is a founder and former director of KHRC. And the current UN Special Rapporteur on Xenophobia, Dr. Mutuma Ruteere, is a product of KHRC.

In addition to noting that human rights language is now widely dispersed in government circles, this statement also emphasizes the fact that individuals associated with the KHRC, many of whom worked together in the reform movement in the early years of the constitution-making process, have benefitted materially and socially from their involvement in reform. They have been rewarded with positions in government and in                                                                                                                 36 A lawyer and civil society activist in whose offices the KHRC was originally housed as it established itself in Kenya, and whose central role in the reform movement I discuss in an earlier chapter.  

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international organizations, and have acquired the kinds of status in these circles that “guarantees [their] livelihood and survival.” (Mutunga 1999: 21) Civic education has been used by civil society in much the same way that the KHRC describes its “community based Human Rights Education” program; that is, primarily as a way of disseminating human rights and liberal democratic discourses, and linking them, through the project of reform, to the structuring of government institutions and practices, and to the production of individual subjects as members of a Kenyan society. What follows here is an ethnographically informed exploration of the civic education process instituted by the Committee of Experts on Constitutional Review in 2010 to popularize the “Proposed Constitution of Kenya” (as the last draft produced by the CoE in preparation for the referendum was titled). While the CoE was as independent body established by the Constitution of Kenya Review Act as one of four organs37 whose mandate it was to complete the constitutional review process, it relied heavily on previous constitutional drafts (including the Bomas Draft), the views collected by the CKRC, experts drawn from civil society (although not from the reform movement), and on the groundwork laid by the constitution-making and civic education processes that had come out of civil society. I will, therefore, provide context for my description by placing the CoE civic education process alongside the civil society civic education process (primarily that conducted by CRECO) and the views collection process conducted by the CKRC prior to the constitutional conference in 2003 that produced the Bomas Draft. Educating the People The launch of the national civic education program on May 11, 2010, was conducted in a very public (and televised) manner, and marked by much pomp and circumstance. This launch, however, was in stark contrast to the actual rollout of the civic education program around the country. I had hoped to attend several civic education exercises carried out in Nairobi, in addition to interviewing the educators and coordinators hired by the CoE to conduct them, but while there was a structure in place                                                                                                                 37 The others being the Parliamentary Select Committee on Constitutional Review (PSC), the National Assembly, and the people of Kenya through a referendum  

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for the national civic education program, with fifteen regional coordinators and 210 Constituency Civic Educators (CCEs) hired to conduct the civic education, it quickly became clear that the process was not going to be as smooth as promised. Even though the national civic education program was to be completed within a month from the date of its launch, immediately after the launch on May 11, 2010, the CCEs retreated to Kasarani in Nairobi for “training.” I made attempts, both prior to and after the public launch on May 11, to contact CCEs and find out the location of public forums or other civic education events I might attend, but even where I established contact and opened up lines of communication, it seemed as though these educators were still waiting for a goahead to conduct their programs. The Committee of Experts on Constitutional Review was established under the Constitution of Kenya Review Act, 2008. In order to forestall any attempts at derailing the process, as had happened numerous times before, the Act gave the CoE twelve months from the date of its appointment to complete its work. Within this period, a very specific timeline was laid out giving the total amount of time the CoE had to complete each phase of a process that would culminate in a referendum on the Proposed Constitution of Kenya. Given the date of its appointment, and the thirty-day timeframe set aside in the Act for this particular phase of the process, the CoE’s national civic education program was to run from May 6, 2010 to June 6, 2010. So, by the time of the public launch, we were already five days into the statutory time frame set aside for civic education. Then only days after this publicized launch, while the training of CCEs was still going on, the process run into trouble when it was revealed that the Treasury had refused to release money to fund the process saying that new money for the process had not been budgeted for. The Treasury claimed that the CoE had submitted a budget and all approved monies, including for civic education, had been released to the CoE. Suddenly the “training”, and the delay in conducting it, took on a new light, as it became clear that those in charge of conducting civic education probably had not been allocated money to conduct their programs. This was subsequently confirmed to me by one of the constituency coordinators, Elizabeth, who run a small grassroots organization, the Mathare Women’s Improvement Association

 

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(MWIA), dedicated to women’s empowerment and women’s right and to promoting legal and human rights in one of Nairobi’s most-densely populated urban areas. Elizabeth has been involved in the organization for 25 years, first turning to them as a victim of sex-abuse and then coming to run the organization, which she has done for the last thirteen years. MWIA does reconciliation and mediation work in the community and networks with other local organizations to provide services to the community. They also provide workshops and seminars, and conduct public forums, and have been invited to do so for a variety of groups in a variety of locations, including women’s groups, churches, and schools. The organization runs four programs, dedicated to economic empowerment, legal and human rights, health rights, and to youth and children. As part of the legal rights program, the organization has been conducting civic education on good governance for several years and had previously been selected, after a call for proposals, to conduct civic education in anticipation of the previous referendum on a new constitution held in 2005. She noted that MWIA even used to have a lawyer come in once a week to meet with and advise members of the local community, but now that they do not have the necessary funds to do that kind of work, they direct them to the larger civil society organizations and legal resource clinics. While she does not say as much, it seems clear to me that the growth in the number of these better funded and better organized CSOs is part of the reason that funds do not reach smaller grassroots organizations like her own. The office that MWIA works out of is in stark contrast to the offices of the other civil society and non-governmental offices I conducted interviews at. Those offices are often found in the modern office complexes that have sprung up in the last fifteen years right outside the city-centre in places like Upper Hill, or in residential areas and shopping districts like Westlands, Kileleshwa, Kilimani, and Hurlingham, which were formerly occupied by Nairobi’s elite and upper-middle class and have now been re-zoned for development, or they are found in the converted single family homes that these complexes are replacing. MWIA’s offices though are found on the second-floor of a narrow walk-up, with a heavy blue metal door on the ground floor, next to a window whose metal shutters in the same blue stand open revealing a small general store, in what could be any one of thousands of similar buildings that line the streets in much of the rest of Nairobi. The office itself is

 

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bare and dark; one small room with a table, covered with a bright table cloth and pushed against a shelf on one side of the room, and a desk, with a chair on each side, where the two of us sit as we conduct our interview, on the other. Elizabeth talks to me about the problems of the community as she sees them, almost all of which come down to a lack of government services. This is what she hopes the constitution will bring, better provision of services, and she puts a lot of stock in the new county government structure which she thinks might be able to facilitate this. Even when she talks in the language of rights, she constantly returns to what the government does not provide, and she uses rights language as a way of making claims on those services. Elizabeth and I meet for our interview in the wake of the national civic education program conducted by the CoE. I attended one of the events she organized, held at a local church and given to members of the church’s youth group, and led by a facilitator, Adams Kimani, who had been willing to provide his services for free. I accompanied Mr. Kimani to yet another event at a church, this time held outside of Nairobi, in Kikuyu, where the civic education was provided during a break in the activities planned for an all day committee meeting for leaders of different parishes of that particular church, in that region. These were the only two events I was able to attend because they were the only two that I had any information on. The latter of the two events was not a CoE event and the former was only loosely organized through them. On the day we met, June 16, 2010, Elizabeth showed me a letter she had received the previous day at a meeting called by the regional coordinator for Nairobi for all the CCEs from the region. The letter was letting them know that the statutory period for civic education had ended on June 6 and their services were thereby terminated, “and as you know, we have done nothing, nothing, nothing.” Elizabeth informed me that the CoE contracted the CCEs in April, with each given a 3-month contract. They were supposed to get funds to facilitate public forums and workshops, but other than being paid their salaries, they never received any funds. They were simply told to go into the field and hold meetings and that was it. The CoE did nothing to facilitate their work. At the national training at Kasarani, held a week into the statutory period for civic education, each CCE was told to create a work-plan first and a budget. Every coordinator did a

 

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budget, and they worked day and night in Kasarani to create one. The amount to budget for kept changing. At first, they were told to do it for KShs150,000. Then they were called back to Kasarani and told they don’t have money; that the Treasury has refused to give the CoE the necessary funds. Because of this the programs they planned never happened. They were given t-shirts and caps and other materials but no funds. It took the intervention of then Prime Minister Raila Odinga to secure the necessary funds, as he announced the release of 553 million Kenya Shillings that had been earmarked for other government projects. Days later, on May 31, (and 20 days after the KICC ceremony launching the process) the CoE claimed the money had yet to be released by the Treasury, while the Treasury countered saying the CoE all the money. Questions were also raised about the donor funding – reported to be over 350 million shillings – that had been availed for the process. In addition, the CoE was expected only to educate the public on the provisions found within the constitution, and not to campaign for its passage. Its impartiality was being questioned by some Members of Parliament, as was the release of funds to serve what seemed to be, essentially, a campaign purpose. All of this was conducted against a backdrop of two campaigns being rolled out – the YES campaign led by the President, Prime Minister, and civil society, and the NO campaign led by Wiliam Ruto, a former ally of the Prime Minister who had fallen out with him over the ICC issue. When they met with the regional coordinator for Nairobi the day before our meeting, Elizabeth thought they were being called in because it had been announced that the Treasury had released funds and that they were finally going to start civic education. In reality though, they were being officially terminated. She also heard from the regional coordinator that the decision had been made to spend the funds on advertisements and radio and television programs and not on the programs that had been put together by the CCEs. This was in keeping with everything I heard through the media where, for example when discussing the Treasury’s claim that they had given money directly to the government printer to print five million copies of the constitution for circulation, Dr. Ekuru Aukot, Director of the CoE, first claimed that they CoE had only received fifty thousand copies, and then added that the printing of materials and the radio and television programs the CoE had planned were part of the civic education budget. The CoE never

 

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publically mentioned the CCEs after it was first announced they were in training, and never publically before that. Actually, if I hadn’t been doing research on the topic, civic education would have remained to me, like many others, an abstract concept. Of course, given what happened with the CoE’s plan to conduct a targeted civic education on the ground, it can readily be argued that it was an abstract term for most. Elizabeth says the civic education program, as planned, was not effective. She feels that the CoE “took us for a ride” and blames them, and not the Ministry of Finance, for the problems that faced the program. “As the finance minister said, the money for civic education had been in the prior year’s budget and only the CoE knows where that money went.” She believes corruption played a part, but a very particular type of corruption. She thinks that the CoE already knew whom they wanted to engage with to conduct civic education – specific NGOs and CBOs that they were affiliated with. And indeed this was who took up the civic education mantle in the period after our conversation – large, well-known civil society organizations and NGOs, and individuals affiliated with them. There were suggestions made that the CCEs should file a complaint with the Kenya Anti-Corruption Commission (KACC) seeing how no help was given to them, and when the Treasury finally released money for civic education, the CCEs had their services terminated. The CCEs seemed to believe that the money was not meant for civic education but for the “Yes” campaign all along. Now, I am not arguing that Elizabeth was right or wrong in her assessment of what was going on with the funds for civic education, I just want to note that she felt that this money was meant to go to specific individuals and organizations rather than to people like the CCEs, who for the most part worked in local communities at much less of a remove than the “experts” who belonged to larger CSOs. I also had the opportunity to interview a CCE from the Rift Valley, Apollo, and to later attend an event that he and other youth leaders in his town had organized, and it was clear from our conversation and from the discussions at the event, that members of grassroots organizations who worked very closely with communities that they were directly attached to, felt that the lacked the social networks that would give them access to the kinds of funds they needed to do their work and actually help their communities, funds that were directed at larger and better organized CSOs. More than that, they felt that while these networks were largely closed

 

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off to them, the large CSOs relied on these grassroots organizations to do their work, or at the very least, to grant legitimacy to it. These new activists were eager to do their own work. As Apollo argued, “It is necessary to allow a new civil society to emerge [and to] allow them to push agenda for their time.” This inability to access funds, and the belief that this lack of access was due in large part to the leaders of these larger civil society organizations failing to make way for younger civil society leaders and their organizations, was repeated to me several times. And while the situation is much more complicated than that, it does reveal something about how civil society is organized to do in Kenya and whom it is organized for. After all, my own ability to conduct interviews with these grassroots organizers, and the number of interviews I ended up having with them, had a lot to do with my own class privilege, and the fact that I expected them to open up to me in a way that they couldn’t of me. This privilege lends itself to the production of an “expertise” that is a commodity precisely because it can be de-linked from the processes of social production that make it possible. Elizabeth had been quick to note in our conversation the ways in which civic education could be effectively conducted in her area: she saw no point in holding workshops because of the small number of people they reached, and instead favoured public forums held in open and accessible areas with the aid of a public address system, rather than in a hall, and where people were given a chance, and encouraged to ask questions. Yet, despite a feint towards making use of the kind of local and grounded knowledge she possessed, the CoE revealed in word and in deed, that this was indeed at most a feint – written into its structure but otherwise ignored for the kinds of expertise that came out of a middle class civil society. The kinds of civic education that occurred following the publication of the Proposed Constitution of Kenya were structured just like the public launch. There was a crowd of people being fed information that they were supposed to accept at face value as being good for them. The skits, the music, the presentation by the members of the CoE, just like the advertisements, radio and TV programs, and the various experts who went around the country, or appeared as talking heads on any number of news shows, ensured that the transfer of information was a one-way street. In the same interview in which Dr. Eukot suggested that the Treasury had failed to live up to its agreement to deliver funds

 

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for civic education to the CoE, he challenged former President Moi, who was part of the “No” campaign and took the CoE to task for what he claimed was partisanship, “when he’s holding his political rallies, to please read to Kenyans the aspects of the constitution he’s opposed to, and allow Kenyans to pose questions to him.”38 It can be argued that the ultimate structure of the civic education process that the CoE engaged in, even though this might not have been its intent, did not allow Kenyans that opportunity either. It is actually this discrepancy between intent and action, rather than the simple fact of whether or not people were allowed to ask questions of politicians or experts, which interests me. If the CoE intended to provide grassroots civic education, why was the process of training the CCEs and the asking them to submit budgets and work plans left until after the launch of civic education and at least a week into the statutory period set aside for civic education? And why, even though this statutory period had expired, were funds made available by donors and otherwise made available for other civil society organizations to conduct civic education not directed towards those individuals who had already been identified to conduct civic education because of their knowledge of, relationship to, and positions in particular locations? This is not about whether funds were released in a timely manner by the Treasury or not. This is a question about what kind of knowledge was valued, and deemed to be necessary, and I believe for good reason (I am not actually challenging the choice to have those involved in facilitating the constitutional reform process lead civic education), to the completion of civic education in preparation for the referendum. To answer this question, it is necessary to look at the civic education events that I did manage to attend that June. A Question of Authority In addition to the official launch, I attended three other civic education events, none of them public. Two, as I mentioned earlier, were run by Adams Kimani, who told me he had a long association with the reform process and agreed to conduct the exercises                                                                                                                 38 Citizen TV news broadcast. May 30, 2010. http://article.wn.com/view/2010/05/24/CoE_commences_civic_education_on_proposed_ Kenyan_constitutio/#/video  

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for free given his knowledge of the document and of the review process that informed it. The third was held at my sister’s house and was attended by members of the CoE as well as civil society activists who had been involved in the reform movement in the early to mid 1990s. The first event I attended, was a presentation made to the youth group at Mathare United African Anglican Church. The event itself was held in a building on the church compound in a room that either was or had been set-up to look like a classroom. There was a teacher’s table at front with a blackboard behind it, and members of the youth group sat in rows facing the front of the room. Informational material on the constitution was sitting at the front of the class, next to the teacher’s table, and was handed out to youth group members and placed back at the front of the room for latecomers to pick up as they came in. The event started with a presentation by the educator and was conducted like a class, with questions sometimes asked to elicit information that will push presentation forward. After the presentation, the floor was opened up for questions, which mainly focused on what the press and the NO campaign had by then identified as contentious issues – Kadhis’ Courts,39 abortion, land, and citizenship. Adams is clearly very conversant with the minutiae of the constitution reform process and comes armed with copies of several different draft constitutions. He starts with a discussion of the history of the constitution-making process and the issues that made the writing of a new constitution necessary, which include the centralization of power and tribalism. He then runs us through the process through which the CoE was created by the Constitution of Kenya Review Act, 2008, following the post-election violence and under the terms of Agenda Four of the National Accord aimed at dealing with the long-term issues that were the underlying causes of the post-election violence of 2008. The specific work the CoE was charged with accomplishing, which was to harmonize the various drafts and public views, and to identify contentious issues so they could be dealt with politically. The Parliamentary Select Committee (PSC) was tasked                                                                                                                 39 These courts are a holdover from Kenya’s independence constitution and have jurisdiction over matters of Muslim personal law between Muslims. The enshrinement of the courts in the new constitution was not one of the issues that had been identified by the CoE as a contentious issue, but was  

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with dealing with the contentious issues once a revised harmonized draft40 had been produced, after which the Proposed Constitution of Kenya would be published in preparation for the referendum. Adams here takes a not to subtle dig at the politicians when he says that rather than simply deal with contentious issues during their retreat in Naivasha, the PSC created its own draft and a report to go with it. Finally Adams runs through specific issues that Kenyans face and the chapters that deal with them. The question and answer question that follows the presentation is interesting, first because one of the first questions has to do with why government should have the right to intrude on private land. The question is met very positively by the audience and seems to mark a generational gap around the government’s role in public life. There seems to be a strong feeling that government authority needs to be limited. I find this generational gap in my interviews as well, both with grassroots organizers and with professionals employed in large, established civil society organizations and NGOs. The activists who trace their work in reform to the Moi era and before are eager to limit government’s political power, especially where that power is held by the Executive or the National Assembly, there is a strong social-democratic impulse to have government provide services to the population. The younger activists, many of who have come of age as political actors in the Kibaki era, however, are skeptical about government involvement even in the provision of services. Their interests seem to be in limiting the role of government across the board. For them it seems to be less a question of who is in charge of government and how that government might be structured to prevent abuses and to ensure proper provision of services, and more a question of how to get government out of the way more generally. For example, Apollo, a grassroots organizer in Nakuru and CCE for one of the constituencies in the area, suggested that we needed to move away from politics based on ideology, especially since everyone is moving towards a market economy. He argued that the government should make it possible for the “have-nots” to compete; to allow them to enter mainstream and do for themselves; not to cripple them [by providing for                                                                                                                 40 The CoE first published a Harmonized Draft followed by a thirty-day period in which the public was supposed to provide comments that would be incorporated into a Revised Harmonized Draft which would be handed to the PSC so they could deal with the contentions issues around the structure of the Executive, the Legislature and Devolution,  

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them] but to allow them to contribute. Munene a young lawyer, who was asked by Githu Muigai41 to join us for our interview and worked alongside Professor Muigai at his firm, remarked later that he felt that government’s role should be strictly managerial and should aim to “create an environment that enables private enterprise and the creation of public wealth.” However, that was not the aim of the new constitution, which he said was guided by a “redistributionist philosophy” and had given the government too much leeway to make interventions despite the fact that the “experiment with a powerful interventionist state has not turned out well.” It is worth noting also that some members of the reform movement, such as Willy Mutunga, who in our interview talked about an ideological crisis caused by the failures of neoliberalism, especially in light of the global recession caused by the crisis in banking, and the retreat of communism and socialism after the fall of the Berlin Wall, have themselves noted the needs for new theoretical paradigms to guide the reform project. James Orengo, a well-known social democrat, said that he believes “there should be less and less government.” In the same breath, however, he argued that it is “because we are in a divided society where the downtrodden and the poor are in the vast majority, we can’t do without state intervention.” Not that these two beliefs are in contradiction for him as “the state must play a role in offering opportunities, [in] establishing a caring society, [and in ensuring] that there is democracy, rule of law, and good governance in public affairs,” not a state that “controls our lives [but protects] rights and personal security.” Mutunga, for his part, feels that “the human rights and social justice paradigms (and constitution-making paradigm) have become relevant given the polarization occasioned by the events of 1989 and 2008 … [and] offer an intellectual, ideological and political environment to take up the ideological discussions of old without the polarization that marked those debates.” For both of these men – leaders of the reform movement –, therefore, having taken note of the shift in the theoretical landscape on which the reform project was built, and of the possibilities opened up by that shift to re-imagine the state-building process,                                                                                                                 41 Current Attorney General of Kenya (2013) and a former commissioner in the Constitution of Kenya Review Commission; at the time of the interview he was still in private practice as well as an Associate Professor at the University of Nairobi School of Law  

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the response is to re-inscribe the language of reform and to suggest that it offers the best way to approach the state-building project. And it is not just the members of the reform movement who feel this way. Even as Apollo and Munene suggest that the interventionist state is an anachronism, they make use of the language of reform, and the historical narrative that emerged around the constitution-making process, to make their claims about, and to stake a claim to, Kenya’s political and socioeconomic processes. Returning to the Civic Education event at the church in Mathare, the students persist in following a line of questioning that challenges government interventions in public life and the expansion of government bureaucracy that goes with that. One young man, focusing in on plans to expand the legislature, wonders aloud what the point of adding a Senate is if we already feel the work of the National Assembly is unsatisfactory? He continues to suggest that it is the size of government that guarantees the people end up on the losing end, but Adams reassures him that the constitution is meant to allow us to take back our right and ability to determine what government does. The new institutions are meant to act as check on government power. There are specific questions about the Kadhis courts and about the article dealing with abortion. Specifically the question is about why there was a change in the language that appeared in the old drafts from requiring a medical practitioner to conduct abortion to now requiring only trained health professional; doesn’t that allow anyone with any medical training to conduct an abortion? This is the precise issue and language around which the clergy started rallying against the draft constitution, saying even a mortician could conduct an abortion; this question traces exactly what the clergy has been saying and almost seems like a plant from officials at the Mathare church, an idea reaffirmed when the questioner gets up and leaves immediately after asking it, without even waiting for a response. After Adams response claiming that this issue is only being used as a propaganda tool as churches supported the original language allowing abortion under a very small select set of circumstances and that changes were only made to include situations where trained MDs are not available, the meeting draws to a close. The second civic education presentation I attend is a few days later at a church in Kikuyu, a peri-urban area right outside Nairobi. I reach the location by taking a matatu from the city centre to Kikuyu town and then another matatu into what is mostly

 

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farmland. This is not a civic education specific exercise, and while Adams, who is from the area, again gives the presentation, it is not facilitated by Elizabeth and is not connected to the CoE. It is held on a Saturday during a devotional meeting of parishioners and church officials from different parishes. The setting is not a classroom but is otherwise quite similar to the previous event. There is a table at the front where the people running the meeting are seated and the rest of us sit in rows facing them. The majority of the meeting is conducted in Kikuyu even though there are attempts made to use Kiswahili and a little English. I understand some Kikuyu and make notes (in English) based on what I can understand. When Adams is invited to speak he starts off with the importance of a constitution as the foundation of the republic and starts explaining why it is important for people to understand what is in the document. He suggests that the main reasons for a constitution are to create peace, stability, and unity, to safeguard territorial integrity, to provide democracy, and to provide growth and development. He then goes on to explain how the amendments to the Lancaster Constitution (the Independence Constitution) concentrate power in one individual and how this then leads to favoritism, tribalism, and the skewed allocation of resources. He notes that the struggle for a new constitution has been going on for the last twenty years, but also, in reality from the beginning of the republic, and that the push for expansion of democratic space through multi-partyism was not enough. He talks about the 2008 post-election violence, the number of deal and displaced, how communication and transport were disrupted, the economic downturn that followed, and lays the blame squarely at the feet of the Electoral Commission of Kenya whose members were appointed by the President, a clearly faulty system given that he was an interested party in the election. Adams talks about Agenda 4 and how it was intended to deal with long terms issues that were at the root of the violence, such as unemployment, land, and the constitution. To handle this particular issue, the Constitution of Kenya Review Act, 2008 was passed creating the organs of constitutional review and the timeline for the completion of the process. At this point, Adams is basically giving the same spiel he gave to the youth group about the CoE, the Harmonized and revised Harmonized drafts, and the attempt by the PSC to go beyond their mandate and deal not with the contentious issues but to open-up

 

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the whole draft for review. He does spend a little more time, however, noting that despite the attempts by the PSC at Naivasha to change the Revised Harmonized Draft, Parliament was given a very specific window to amend the constitution. This could only be done after the CoE had produced the Proposed Constitution of Kenya, taking note only of the agreements reached by the PSC around the contentious issues, and submitted it to the National Assembly to be passed. Any amendment to the Proposed Constitution at that stage would have to pass with a two-thirds majority. Numerous amendments were tabled during the official debate in the National Assembly but whenever it came time for a vote, after a public and televised debate, most of the Members of Parliament (aligned to competing parties in the Grand Coalition government and to different factions within those parties) walked out preventing the quorum necessary to conduct a vote. The National Assembly passed the Proposed Constitution, which was then to be submitted to a national referendum. If it passed, the President had 14 days to promulgate it. Adams then gives a much more thoroughgoing breakdown of the various chapters of the constitution and then deals directly with the primary concerns being raised in public, and in particular by the politicians and church officials aligned with the No campaign. The question and answer session that follows is structured around the issues Adams has just identified as public concerns – the rights of security officers to demonstrate and picket, the Kadhis’ Courts, etc. The questions seem to reflect an earnest need for direction, which is what Elizabeth suggested civic education would have been able to do by providing public forums for people to ask questions about the constitution, and more than that about the rumours circulating about the constitution. People here are trying to understand the debates on constitution and are looking for leadership around these debates. There appears to be an expectation that the people tasked with writing the constitution will create a working document, what this group want is just to understand what is being created. Finally, after making my way back from Kikuyu, I make my way across Nairobi to a civic education event being hosted by my sister at her home in Runda, an upscale suburban community next to which sits the United States embassy and the world headquarters of the United Nations Environment Programme (UNEP). My sister, Betty Kaari Murungi, is a lawyer and a well-known, well-connected, and well-respected

 

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member of Kenya’s civil society.42 The meeting is held ostensibly to educate members of her extended family who do not know anything about the document or are misinformed about it, and is meant to be the first of a series of similar events held for different groups, and attended by members of the CoE, and by civil society activists who have been involved in the reform movement. The attendees here are largely middle and upper-middle class. Each presenter deals with a different area of the constitution before inviting questions. Dr. Chaloka Beyani,43 one of the foreign members of the CoE gave a presentation on land and the attempt made to establish a framework through which land questions could be dealt with, and on devolution. James Orengo,44 at the time Minister of Lands in the Grand Coalition government, having just arrived speaks next. He apologizes for his late arrival, having come from his Ugenya45 constituency where he is most weekends attending to political duties. He is the highest profile speaker at the event but as always, he is extremely low-key, and rather than give a political speech, talks briefly about specific land issues. He mentions the questions around how to deal with large landowners, especially foreign ones, many of whom own large tracts in freehold or with 999-year leases, given that land is such a big issue in Kenya and given that there is a strong interest in protecting property rights. Davinder Lamba talks about the work done to reach this constitutional moment and about how he is involved in efforts to bring the Asian community together to discuss the proposed constitution. Tom Kagwe of the                                                                                                                 42 She is Chair of Akiba Uhaki, the Human Rights and Social Justice Fund, Vice-Chair of the Kenya Human Rights Commission, founder and former Executive Director of Urgent Action Fund, Africa, and at the time had only recently resigned, first as vice-chair, and then as a commissioner, of the Kenya’s Truth, Justice and Reconciliation Commission (TJRC) after asking the chairman of the commission, Bethuel Kiplagat to step down because of reports linking him to some of the events that the TJRC was set to investigate. 43 Senior Lecturer in International Law and a member of the Centre for the Study of Human Rights at the London School of Economics 44 He is at the time of this writing Senator for Siaya County and the immediate former Member of Parliament for Ugenya constituency; a politician who has been heavily involved in resistance to the KANU government, first as a backbencher and then as a member of the political opposition, and a favorite of both civil society and the public (especially in Nairobi) for his principled stand on reform and for his participation in the mass action leading up to the repeal of section 2A of Kenya’s constitution. He is also Betty’s husband. 45 In the western part of the country  

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Human Rights Commission gives a presentation about the Bill of Rights and Karuti Kanyinga speaks about Public Finance. The questions that follow each of these presentations ranged from the highly specific such as those focused on how and where voting would occur during the general elections, to the more abstract about issues like leadership. Elizabeth’s claim that what people needed was guidance on the document, and how the civic education process failed them, becomes even more poignant when seen through this particular civic education exercise. What is most interesting about the question and answer session is how extensive it is, and that the questions are often of a fairly mundane nature, and this from a population that one might expect to be far more informed about the document. There seems to be a desire to acquire an understanding of what the document has created, for what purposes, and how it could be made use of in everyday life. In addition, across the three civic education events I attended, there was a consistent reproduction of the language of reform. It was the language of politics in Kenya. What all of this suggests to me, is that while it is possible to argue very strongly that the language of reform has been fairly widely dispersed in Kenya, the claim that the constitution represents the views of the Kenyan public is, on the evidence, a much harder argument to advance. The idea of course is that the desires of the public were carefully collected and then filtered, by experts, into a final constitutional form. This was a carefully calibrated process that also took into account the prevailing political environment, and was structured around a theoretical understanding of the socioeconomic and politico-legal conditions that exist in Kenya and their historical provenance. However, an analysis of the constitution-making process reveals that while the idea of “the people” was constantly invoked the legitimize the process of constitution-making, the actual focus of the constitutional reform process was not people as we find them in their everyday lives, but people as an object constitutive of the nation, and with that, the state. Actually, that’s not completely accurate, the people whose everyday lives were the focus of constitution making were the civil society activists, politicians, and experts who were central to the process. It is these people whose lives, their needs, desires, beliefs, and relationships, structured the constitution-making process and the constitutional

 

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document that resulted from it. It is their focus on the “nation” that made it the object of reform. Constitutional Frameworks In the acknowledgement section of the Final Report of the Committee of Experts on Constitutional Review, the CoE pays tribute to the “zeal of Kenyans for selfdetermination, … to the many Kenyans who lost their lives, limb, means of livelihood and property in the struggle for a new Constitution … [and] to all Kenyans who participated in the enactment of the new Constitution.” (Committee of Experts 2010: 5) In the “Foreword” to the same document, right at the end, the CoE carefully articulates the relationship between Kenyans and the new document when it wrote, Apart from some outright dishonesty, the vibrant debate, discourse and even the controversies were healthy. They demonstrated that Kenyans wanted to own their document and were vigilant and informed in the articulation of their rights and expounding their vision of the Kenya they wanted. Law is after all the product of the realization that man is inherently selfish and disorderly if left to his own devises. Law seeks to create order in society so that competing human interests do not lead to mutual annihilation which destroys the society itself. Throughout human history the struggle of mankind has been informed by the need to ensure that good triumphs over evil. In the enactment of their Constitution Kenyans have made their positive contribution to that struggle and earned a deserved page in history. (2010: 12)

Kenyans are members of a society constituted by “law,” were invested as a collective in articulating their rights and expounding their vision of this society, and by enacting the constitution, emerged into history. The rest of the foreword, however, is not about “the people”; it is about the Committee itself, its make-up, the ideals and beliefs that were important to its members in their individual and their professional capacities as they conducted their work. It is about the committee’s struggles and interactions with the various other individuals and groups who actually had a say in how the constitution would look – politicians, clergy, judges and magistrates, landowners, and entrepreneurs. Finally, it is also about the law, and how the law structured the work of the CoE. There is one brief mention of “the people” that is not in their capacity as Kenyans, when the CoE notes that it

 

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will however never forget the unedifying and pitiable images of some of the poor and the landless Kenyans vigorously opposing [the provisions on land in the Constitution relating to illegally acquired property and setting a maximum acreage on land holdings] based on distorted information peddled by some prominent opponents of the Proposed Constitution of Kenya. This spectacle clearly portrayed the kind of stranglehold which the powerful have over the weak and how this relationship is exploited and abused. (2010: 9)

These “poor, landless Kenyans”, appear only as a rhetorical device to make a point about how the constitution sought to protect their interests, a point about the opponents of the committee’s work, and a point about class relations in Kenya. There is otherwise no mention of what they were opposing and why, or of their particular relationship to the unnamed opponents of the document. Of course, the forward is a place for rhetorical flourishes and for generalizations. However, the rest of the document is structured in the same way. The particular focus of the different chapters tends to be on the committee and on the specific groups in interacted with as it produced and shepherded the document. It is also about the law, both the supreme law as codified in the constitution, and the various enabling laws and theories of law and politics that gave the CoE its particular mandate and guided its work. It is the law, as both an abstract concept and a practical concern, that represents Kenya in this process, and it is in the language of the law, and through its processes and practices, therefore, that their concerns must be articulated. Let me turn briefly to the Constitution of Kenya Review Commission to make my point. I focus on the CKRC process for two reasons. First as the CoE states in its final report, the CKRC is known for the work it did to collect the views of the public on what they wanted from their government and from a new constitution. The CoE saw its job as building on the work of the CKRC has relied extensively on that commission’s findings and reports. As the CoE states, “The CKRC process was widely consultative with over two years dedicated to nothing but consultations. Indeed, the CKRC was the most travelled commission in the history of Kenya, having visited all the existing 210 constituencies.” (Committee of Experts: 30) Second, the CKRC process occurred at the same time as the National Civic Education Program (NCEP I) designed and implemented under the auspices of the Constitution and Reform Education Consortium (CRECO) to prepare Kenyans to give their views to the CKRC.

 

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I spent some time in the basement of Delta House in Westlands where the CoE was based. After an introduction from my neighbor got me a meeting with Dr. Aukot, Director of the Committee of Experts, I was given permission to access the extensive collection of CKRC documents, which the CoE had relied on in creating the Harmonized Draft, that were archived there. I was not permitted, however, to make copies, and I spent many an afternoon over a period of several weeks painstakingly copying information from the Constituency reports that I dutifully analyzed as I attempted to figure out what information might ultimately be valuable to me. A chance encounter with the librarian at the offices of the Citizens Coalition for Constitutional Culture (4Cs – up until the promulgation of the new constitution, known as the Citizens Coalition for Constitutional Change), an organization that most members of the reform movement had worked with and through in the early years of the constitution-making project, however, got me soft copies of a treasure trove of CKRC documents, as PDFs and Word documents, and out of the CoE basement. The CKRC and the Production of “The People” I will highlight two different findings in what follows. For one, I pay attention to the reports produced after the visits made by the CKRC to the various constituencies and point out how the commission structured those reports and what it chose to highlight. Second, I will take a moment to look at how the CKRC sought to preserve its independence vis-à-vis parliament and how it invoked both the law as an abstract concept and specific laws to make its claims. In his book Prisoners of Freedom: Human Rights and the African Poor, Harry Englund “suggests a parallel between the nationalist project in Africa, often seen as the “first wave of liberation,” and the transitions to democracy underway since the 1980s.” (2006: 5) In Kenya, where the push for democratization and government reform where known as the fight for the country’s “second liberation,” as in most of sub-Saharan Africa, it was the failure of the nationalist project to bring about the kinds of “development” that would bring the masses out of poverty, that allowed the rights paradigm to gain purchase as the source of an alternative “bourgeois” political project.

 

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Englund argues that “a narrow definition of human rights as freedoms captured the attention of politicians, donors, journalists, and activists alike [while] its limited relevance to understanding the situation of the impoverished majority made democracy the preoccupation of the privileged few,” (2006: 6) leading him to challenge the “exclusive focus on national elites” (2006: 7) in defining “what freedom, human rights and democracy might mean in a [local] context.” My own research in Kenya, specifically on the process of constitution-making, closely mapped onto Englund’s analysis of the situation in Malawi, especially his finding that “the starting point [for the democratization process] is not the actual concerns and aspirations of the people, their particular situations in life and experiences of abuse, but freedom, democracy, and human rights as universal and abstract values” (2006: 9) and the “associating [of] democracy and development with particular indices and institution, many of which bear little relevance to the impoverished majority.” (2006: 9) I will, of course, be challenged on this finding, given the extensive views gathering process that Constitution of Kenya Review Commission carried out around the country in order to acquire an understanding of the kind of government that Kenyans wanted. It is my argument, however, that, in terms of collecting views, this process was necessarily limited by its particular mandate – creating a new constitution – ensuring that the kinds of information which were deemed relevant to the process were those that could be effectively translated into the kind of politico-legal document that a constitution is. In fact the process of collecting views was preceded by an exhaustive civic education process conducted by civil society activists and CKRC officials that sought to educate Kenyans as to what a constitution was, how a constitution-making process would work, and what kinds of information would be relevant to the process. On reading the constituency reports produced by the CKRC, it is actually possible to tell which groups representing which interests had conducted civic education in an area, so closely did the views given reflect the beliefs and interests of different sectors of civil society and other social and political interest groups. The collection of views was done under the ambit of a national commission – the CKRC – made up of cosmopolitan professionals, most of who were, for the most part, disconnected from the life experiences of the people from whom they were collecting

 

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views. By this, I don’t mean that the members of the CKRC, or of the specific Constituency Constitutional Committees that conducted these exercises, had no direct knowledge or experience of the conditions that they were collecting views on, although this may have been true for a minority. Rather, I am pointing out that the social networks that they belonged to as members of the CKRC – a commission based in Nairobi and anchored in the social and political economy of an urban and professional middle class – structured the knowledge-making practices out of which the constitutional document emerged. These practices were built around “universal and abstract values” and anchored in a concept of nationhood that emerged out of Nairobi and that reflected middle-class, cosmopolitan, and professional values. Rather than being an indictment of the process or the people involved, I am interested in revealing the extent to which even the core empirical data on which the new constitution was created as being representative of the interests of the population, was already determined by the aims of the document, the process through which that information could be collected, and the places from which that data was collected. The views were deemed to have been collected locally because of the physical location in which the commission met while collecting these views, but in actual fact the physical location was secondary to the social location through which this process occurred. The constituency reports were divided into several sections, with the views collected from the public appearing under the banner “Concerns and Recommendations.” These “recommendations were collated around 43 areas of concern, from the Preamble to National Integrity/Identity.”46 The concerns raised specifically addressed issues like “Citizenship,” “Constitutional Supremacy,” “Defense and National Security,” “The Executive,” “The Legislature,” “The Judiciary,” “Structures and Systems of Government,” a whole array of “Rights,” “Economic/Social Justice,” and “Natural Justice/Rule of Law.” This suggests either that the members of the public who presented these views were primarily focused on a set of concerns that were directly translatable into constitutional categories as well as liberal legal and theoretical precepts; that those who presented their views self-selected for their ability to speak in this liberal politico                                                                                                                 46 As explained under “Concerns and Recommendations” in the CKRC Constituency Reports  

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legal language; that the civic education processes provided a specific kind of training about what kinds of concerns were of interest to the committee collecting views or that allowed members of the public to articulate their concerns in this liberal language; that this liberal politico-legal language already so permeated the fields of governance, politics and socioeconomics that this was the primary way concerns emerging out of or focused on these fields could be articulated; or that the particular mode of analysis employed by the CKRC distilled the views collected into this liberal politico-legal language that seamlessly linked with a liberal constitution-making process. Without suggesting which of these explanations was more likely, or to what extent they might have overlapped, reinforced or contradicted each other, I simply want to point out that the structure of the process of collecting views – from how these meetings were conducted, to the civic education process that preceded them, and the kinds of information that were ultimately, through organization and analysis, made legible within the constitution-making project – already structured the views that would be collected and what purposes they would serve. Most poignantly, a majority of the Constituency reports included a section titled “Sectoral Policy” where the particular local interests and needs of the population were presented. These particular recommendations often suggested that the constitution be used to require highly specific actions that were linked to the local context and, presumably, not within the traditional ambit of a constitutional document. These included demands for lower taxes on farm inputs, and that coffee and tea payments be made on time;47 the prohibition on the use of drugs and too much alcohol, and that government should train farmers on proper farming methods;48 or providing a market for Somali camels, and that admission to government schools be based strictly on merit.49 The collation of these concerns and recommendations under “Sectoral Policy” actually framed them as distinct from the other types of concerns presented and categorized, and as excess to the liberal politico-legal categories around which a constitutional document could be built and structured. The constitution, even when                                                                                                                 47 In Gatanga Constituency 48 In Rangwe Constituency 49 In Dujis Constituency  

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dealing with ostensibly local issues, was focused on “universal and abstract values.” It can be effectively argued that the issues that were collected under “Sectoral Policy” represented issues that could only be effectively addressed in a constitution, and by the state, after being abstracted; at which point rules, regulations, and laws could be created that would help address them. I am not arguing against this, in fact this is precisely my point. I am arguing, following Englund, that the reliance of the liberal constitution-making project on abstract and universal values like “rights,” “democracy,” and “freedom” “actually contributes to maintaining inequalities” (2006: 8) by having these abstract values serve as “a means of governance,” (2006: 9) which is filtered through an elite discourse de-linked from the life experiences of the majority, and which emerges out of a middle class social formation, and the practices and strategies that constitute it. Englund’s research “is partly inspired by an interest in scholarship as a form of political action” (2006: 24) and informed by the notion that the “initial task is not even to produce a critique, because the question of how things are as they are needs to be addressed before attempting a response to the critical issue of why.” (2006: 12) For this reason, his study “is about cultural dispositions, analyzed in a specific historical context, that appear to hijack the transformative potential of freedom, democracy, and human rights.” (2006: 24) Implicit in this statement is the idea that freedom, democracy, and human rights have “transformative potential” and that it is this “transformation” that is at the heart of the kind of “political action” at which scholarship is or can be aimed. This raises a separate question for me: what are the conditions of possibility for an idea of politics that is linked to transformation? What ideas about politics, knowledgeproduction, and the relationship between the two are taken for granted by the concept of a politics-of-transformation and a politics-for-transformation? What is the social context in which these concepts are produced, and what are the social practices that allow these concepts to not only be (re) produced but to become the common-sense of politics? To what extent does tying democracy, freedom, and human rights to the politics of transformation not only contribute to the maintaining of inequalities, but the production of the very system in which inequalities are made legible as such – a process that creates

 

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equalities and inequalities both theoretically and empirically, from and through which political action can be imagined, attempted, and effected. While my interest is also in scholarship as a form of political action, it is not about politics as a way of interceding with the state or intervening in how power is manifested and directed. Rather, I am interested in how a specific knowledge-making process, of which scholarship is an integral part, is used to manifest, make visible and legible, and effect a middle class political project that coheres around a set of specific cultural dispositions, social strategies, and social practices, that create the middle class as the source and ultimate effect of this political project. I will say more about this in the next chapter. For now, I want to turn to how the CKRC made use of the law and of legal processes in order to suggest that it is the law that is the locus and source of the dispositions, strategies, and practices around which a middle class political project is constituted. First, I want to note that Professor Ghai addresses the concerns I raise above in an interview I conduct with him where he talks about what the CKRC saw as its role in the constitution-making process. Saying that since “There was a question of how best to engage people, the CKRC decided to give people an understanding of history and to give them an understanding of the issues involved in constitutional reform and of the process itself. This was useful in encouraging debate around an agenda that had emerged but not to restrict debate or input on the issues.” Once this is done, and the views of the public captured and collected in the context of this debate, “is where experts come in.” What are the implications of different systems? For example, complaints of a lack of access to healthcare and clinics, or questions about adequate transport and access to roads, or quarrels between neighbors connected to uncertainty of boundaries and equal access to resources, are all constitutional matters. But how are they constitutional matters? It was necessary to create frameworks that lead to equity and provide access, etc. The hope is that certain kinds of institutional arrangements will deliver certain public goods. “These frameworks are ways of codifying people’s desires – for example issues were reorganized and dealt with by different chapters, or procedures and hearings were put in place to allow people to make themselves heard, and justiciable rights were made a part of the constitution.”

 

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The questions Professor Ghai asks, and the role he sees experts playing, sees the constitution and “constitutional matters” as the primary concern of the constitutionmaking process. While this might seem necessary and obvious, it does conflate “people’s desires” with the provision of “public goods” through “institutional arrangements.” The people and their desires only emerge in the context of the “frameworks” that “codify” these desires. The process of collecting public views around the country is narrated here as if a pre-existing “people” are being sought out, given an opportunity to be heard, and their desires and needs filtered through a framework that might allow these needs to be met through constitutional language and constitutional arrangements. However, it is clear instead that “the people” only emerge through the symbolic process that allows their desires to be translated by frameworks put in place by experts. The CKRC’s constituency reports, as argued above, were concerned with the production and reproduction of a certain way of knowing and talking about Kenya. The importance of the constituency to the collection and the reporting of views is itself a manifestation of this way of knowing and making Kenya. I do not highlight this to suggest that there could have been a better or more accurate way of collecting and presenting the public’s views, but rather to point out that the process of views was itself both interested – it had a particular focus in mind and a particular idea of what knowledge it was trying to produce and how – and also structured by a particular way of thinking about what Kenya is. These constituency reports were by no means a transparent effort to collect public views but were, in addition, a process through which a certain idea of Kenya was reproduced. There was a structure to how the views of the public could be presented, how they were collected, and how they were analyzed. This process required a certain official language, invoked certain official practices tied to government and to law, and demanded the intervention of a certain technical expertise that allowed the interests, needs, and views of the public to be translated into constitutional language. In essence, the views collected ended up serving as the content that allowed a particular politico-legal form to reproduce itself. The constituency reports were divided up as followed. The first section, District Context, situated each constituency as belonging to one of a number of districts situated in one of the country’s eight provinces. Demographic information for each district was

 

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provided and broken down by gender and by age (over and under 18) and followed by a “Socio-Economic Profile” that provided information about population density, school enrolment, disease profile, life expectancy, household income, poverty levels, and overall economic wealth/resources. The socio-economic profile also included information on which political party won seats and in which constituency and with what level of support in the 1997 elections. The second section is the Constituency Profile. This section contains a brief “Socio-Economic Profile” which provides information on economic activities carried out by the local population, such as which crops they produce. The sections that follow on “Electioneering and Political Information”, and providing General Election results, provide information on: which political parties and which individuals won that particular seat in the three prior elections (1992, 1997 and 2002); with what number and percentage of the total votes cast; who they beat; as well as on the total number of registered voters, voter turnout, and number of valid and rejected ballots. Finally, there is sometimes a short section on the main problems found in the constituency, such as poverty, bad infrastructure, water shortages etc. It is the third section, “Constitution Making/Review Process,” which was standard in every report, in which I am most interested. It starts with an explanation of the role and importance of the Constituency Constitutional Forum (CCF), on its composition and establishment, on its functions, on the date it was to commence its work, and on its mandate and terms of reference. Allow me to quote the introductory piece on the philosophy behind the CCF: The Constituency Constitutional Forum (CCF) plays a very significant role in the review of the constitution. It is designated as one of the organs ‘ through which the review process shall be conducted’ - (sec. 4(1) of the Constitution of Kenya Review Act, Cap.3A). The importance attached to the CCF arises from the recognition of the need to involve the people fully in the review of the constitution. Only through such participation of the public will the new constitution reflect the preferences, hopes and aspirations of the people. It would also increase people’s knowledge of constitutional issues, and facilitate their familiarity with the provisions of the new constitution. Additionally, the process enhances the legitimacy of the constitution among Kenyans and their sense of

 

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ownership over it. In these ways the proper implementation and safeguarding of the constitution will be facilitated.50

The rest of the section on the CCF reads similarly. It places the work of the CCF in the context of the relevant Acts of Parliament that established the CKRC and oversees the constitutional review process, and quotes repeatedly from them and from the various reports of the parliamentary committees that provided guidance and opinions as to how that process would be carried out. One purpose of this elaborate explanation was to show how the different stakeholders attempted to structure how the process worked and to maintain control over it. The CKRC had a “limited role in the establishment of the CCFs”51, which were created by the Select Committee of the National Assembly (an assembly still dominated by the ruling party KANU). The Select Committee “removed the regulatory powers of the Commission over the forum, its role being confined to the ‘facilitation’ of the forum.”52 Finally, the Select Committee “envisaged the constituency forum as an ‘open forum with no specific structures’, which should be flexible and easy to manage’. Its opinion was that the ‘existing leadership comprising Members of Parliament, councilors, community based organizations, religious groups and individuals should be able to present views and opinions directly from the grassroots’ (The Report of the Parliamentary Select Committee Reviewing the Constitution of Kenya Review Act, 1997, April 2000).”53 In response to its new role, the CKRC “prepared and gazetted54 Guidelines for the operationalization of the constituency constitutional forums. The Guidelines stipulated that all the residents of the constituency would constitute the CCF…[since it was] one of the principle ways in which the views of the public were to be obtained.”55 A                                                                                                                 50 Reproduced from the Constituency Report on Baringo North Constituency, but can be found on the Constituency Reports produced by the CKRC on every constituency in Kenya 51 Ibid. 52 Ibid. 53 Ibid. 54 The Kenya Gazette is an official publication of the government that contains all new legislation, notices that have to be published by law, and other announcements meant for the general public 55 From the Baringo North Constituency Report  

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Constituency Constitutional Committee (CCC) was set-up to facilitate the CCF’s activities. The area MP and the chair of the County Council were made ex-officio members of the CCC, but membership was otherwise to be “as broad and representative of the constituency as possible [with a recommendation] that at least a third of the committee should be women. At stake for the CKRC here was not just the legitimacy of the process of gathering public views from the grassroots, but also the legitimacy of the CKRC as an institution of governance. The Select Committee worked to trivialize the importance and role of the CKRC by, first, attempting to wrest operational control over the CCF from the CKRC in spite of the centrality of these forums to the constitutional review process as envisaged by the CKRC and the original 1997 Act of Parliament that created it. The Select Committee also attempted to take away the CKRC’s ability to define what the CCF was, suggesting that it need not have any specific structures in order to function. Clearly, given the fact that the Select Committee was constituted according to parliamentary rules and procedures and given the extent to which both the Standing Committee and the CKRC relied on the language of the Act to situate themselves in a particular politico-legal order, it was clear that this was an attempt by the Standing Committee to both lessen the standing of the review process and to create a clear line of hierarchy between itself and the CKRC in the constitutional review process. The CKRC’s response – through the publication of guidelines to coordinate the activities of the CCF – clearly showed that while it disagreed with and would resist the attempts by the Standing Committee to sideline it, that disagreement did not extend to the formalities or structure through which these attempts were made. The CKRC used the same formal processes and the same language as the Standing Committee to stake its claim to the review process. There was never any question that the process should be guided by certain rules, regulations, and standards, or that those rules and standards would determine who would get to speak and on whose behalf, or even that the views that were to be collected would have to go though a technical-legal process of interpretation before they could be properly be considered public views on what kind of government Kenya wanted. Rather, this was a competition for control of that process and

 

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the legitimizing cover it provided to the constitutional review process and to the idea of governance itself. The views of the people that are collected through electoral processes, and that are tied to the competition to claim the mantle of authority or leadership of, or of loyalty from, specific groups of people situated at the various local levels where this competition occurs, are not granted the same importance as those collected through mechanisms established or approved by the reform movement. In fact, to the extent that these views contradict those held by reform activists and other experts, they are often dismissed as indicators of a lack of intelligence, education, training or knowledge in these individuals, or a lack of understanding of where their true interests lie and who actually works to advance or defend those interests. In this particular situation, electoral politics, despite its importance to the democratic project, nevertheless appears antithetical to the aims of the reform project and the strategies of the reform movement despite the fact that these aims are strategies are legitimated through by invoking “the people” as the true seat of all legitimate authority in the liberal democratic nation-state. The process through which the CKRC collected views worked to institutionalize a political practice that was built around identifying “the people” through legal and administrative practice. More than that, however, it sought to structure this legal and administrative practice around an idea of the “law” that identified human rights activists, and the discourse of reform, as the source of a legitimate claim to represent “the people.” The process that is ultimately crucial to the constitution-making project is the linking of “the people” to “Kenya.” While reform constitutes itself against the nationalist project of KANU and the first President Kenyatta, the truth is that not only was the process of linking “the people” to “Kenya” crucial to the nationalist project, it was crucial in the same way. It provided a local middle-class with international connections and universalist aspirations, a way of gaining some measure of control of government institutions linked to a world-system of nation-states, and the historical conditions of its production. Kenyans are presented to us in the language and narrative of reform as a very particular group. Kenyans come into existence only to the extent that individuals and communities abandon their parochial attitudes and provincial practices in favour of

 

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modern, liberal, and progressive ones, or at the very least have the former subsumed under the latter. Kenyans are members of a Kenyan nation. They are not members of tribes but of a society that transcends such ethnic affiliations. Culture is an especially important concept in Kenya’s new constitution as it allows difference to be embraced while simultaneously being neutered. The Preamble to the Constitution reads, “We, the people of Kenya … PROUD of our ethnic, cultural and religious diversity, and determined to live in peace and unity as one indivisible, sovereign nation” (Constitution of Kenya 2010: 12), making the claim that diversity is something to be proud of, but immediately closing off the potential for that diversity to do anything other than allow us to recognize “the aspirations of all Kenyans for a government based on the essential values of human rights, equality, freedom, democracy, social justice and the rule of law”. (2010: 12, emphasis mine) Kenyans are members of a society that embraces the law because of its role in ensuring liberty and equality by ensuring the protection of individual rights and the promotion of democracy. These are essential and universal values.

 

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CHAPTER FIVE: JURIDICAL DIVINATIONS Introduction What is the relationship between law and politics in the reform state? In this chapter, I take a closer look at the role imagined for the Judiciary in Kenya’s new constitutional order and place this role in historical perspective. I argue that the Judiciary has emerged as the focus of reform efforts to make and protect political advances because of the particular history of judicial and quasi-judicial forums in Kenya’s political landscape, and because law and the courts, emerged, in the early years of reform activism as a particular site of political battle. Rather than being the places where an autocratic government consolidated its power, courts and judicial proceedings emerged as the places where successive administration were forced to make public displays of their authority, and in making that authority both public and material, to open it up for challenge. I focus my attention on the Annual Jurists Conference hosted by the Kenya Section of the International Commission of Jurists and the Konrad Adenauer Foundation, and held in the wake of the new constitution becoming law, in order to show how, in the reform state, it is the Judiciary as an ideal that becomes important in the struggle for control of the state. This leads to a conflict between the Judiciary as something embedded in a particular social and political context and reflective of it, and the Judiciary as the locus of attempts to protect and promote abstract universal ideals, a conflict that has been played out in the two cases, related to the post-election violence of 2008, that are in front of the International Criminal Court. These cases are in front of the ICC precisely because they deal with matters of universal importance – the defendants are charged with crimes against humanity – that are constructed as matters that can, and in the particular case of Kenya, should, be dealt with by a judicial authority that exists beyond the ambit of the state and how that state is shaped by domestic concerns. I turn my attention to the post-election violence, the negotiated settlement that ended it, and the ICC intervention that continues to ride in its wake, to make the argument that it is the visibility of these processes, and the very public nature of the acknowledgement of the transnational nature of reform activism, which provided the

 

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reform movement and the activists behind it with increased status and allowed them to lay claim to control of the classificatory scheme through which Kenyan society is organized. The Judiciary emerges, in many ways, as the real point of the reform process. I argue here that the Judiciary is important not just because it is the location where decisions about how society should look and work in the reform state can be made, but more importantly, because it is the place where the authority of the reform state is made visible, where the importance of reform and the status of reform activists is confirmed, and where challenges to that authority and that status can be contained. The constitution needs to be “implemented” primarily to ensure that “politicians” do not derail the process of reconstituting the Kenyan state around the new “social contract” between “the people” and their government, a process that the reform movement seeks to remain in control of. Judicial Reform and the New Constitution The Annual Jurists Conference organized by the Kenya Section of the International Commission of Jurists (ICJ Kenya) and the Konrad Adenauer Foundation took place at Mombasa Continental Hotel from November 30 to December 3, 2010. I attended the conference in my role as the Editor of Volume 9 of their Annual Judiciary Watch Report, whose theme was “The Judiciary and Constitutional change in Africa: transitional mechanisms and the post conflict reform debate.” I was perhaps more excited than most to be there. It had been a long time between trips to this coastal city – Kenya’s biggest behind Nairobi – and the experience of staying at a well-appointed beach hotel surrounded by attentive staff was rare enough to be novel. I looked forward to doing some writing on or by the beach, and enjoying the sleeping that the writing was more than likely to degenerate into the moment the warm ocean breeze started playing on my face and water lapping gently at my feet. To that end, the position I assumed, supine on a wooden beach chair with my notebook on my chest, rather than seated at a table staring at its pages, seemed just about right. When I wasn’t sleeping somewhere, or eating, I sat in a chair in one of the conference rooms at the hotel listening to presentations, questions, and conversations,

 

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dutifully taking notes, and smiling earnestly as I made small talk with the other conference participants. Seated next to me was the President’s constitutional advisor, Professor Kivutha Kibwana56, a former member of Kenya’s parliament, former minister, and one of the civil society stalwarts of the government reform and constitution-making processes. I had been trying to get in touch with him to arrange an interview for months, and while this was better than accosting the former Chairman of the Constitution of Kenya Review Commission in a bathroom at the intermission of a play to do the same, which I did, it became apparent to me that I had been looking for my informants in all the wrong places. Professor Kibwana is a very humble and pleasant man, and we chatted easily about my research and very briefly about his work, and exchanged contacts so I could interview once we got back to Nairobi. Of course, when we did get back to Nairobi, he once again promptly disappeared behind the uniformed administration police that regulated access to the inner sanctum of Kenya’s political elite, and the often unanswered texts, calls and e-mails that marked the subtle, and not-so-subtle, separation between access to waiting rooms, which I had and learned to sit comfortably in, and access to access, which I only very rarely did. Over two days in Mombasa though, seated next to each other in an air-conditioned conference room, we could both momentarily share in the idea of a connection that reality would not, in the end, afford us. The issue framing the formal portions of the conference was the potential role to be played by a reformed Judiciary in the new constitutional dispensation. Underlying this was a discussion about the vetting of judges and magistrates that formed the cornerstone of the attempts, through the new constitution, to reform the Judiciary. It was clear from the discussions at the conference, and from a reading of the constitution and a parsing of the public comments made by the architects of the document, that the integrity and leadership of judicial officers and the government’s legal officers, was seen as the key to the successful implementation of the constitution.

                                                                                                                56 Professor Kibwana was also formerly Dean of the Faculty of Law at University of Nairobi, and like a not insignificant portion of the early leaders of the reform movement, received an LLM at Harvard Law School. Professor Kibwana was elected Governor (a new position created by the new constitution of Kenya) of Makueni County in March 2013.  

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However, while there was extensive discussion about the procedures to follow while vetting judges and magistrates, and to what purpose, there was rarely ever any discussion of individual judicial officers. In fact, the only time individual members of the Judiciary became part of the formal discussions, was when they were being congratulate or venerated, or on the occasions when particular judges or magistrates took to the floor, often with anger and consternation marking their faces and their voices, alarmed by what they viewed as yet another witch-hunt directed at them. Relationships were clearly important, and much of the conference was about investing in and nurturing them. So, while a straw-man “corrupt” judicial officer was constantly erected and beaten-down during the formal sessions, there seemed to be no real connection between the judicial officers in attendance at the conference and those who needed to be either purged or retrained in order to reform the judiciary. Instead, the judicial officers in attendance not only acquitted themselves well – coming across as well-intentioned, hard-working, and thoughtful about their role and position – but complicated and nuanced the publically-held view of the bad-acting judicial officer who worked against the public interest for private gain. Of course, it could be argued that the attendees of the conference were outliers, the cream of an otherwise unremarkable and compromised judicial class, but it can just as easily be imagined that a meeting of the Kenya Magistrates and Judges Association (the main professional organization representing judges and magistrates in Kenya) would likely reveal just as complicated a view of the work of judicial officers, the motivations behind that work, and the challenges faced. What was of most interest to me as I participated in the conference, was the fact that it allowed us all to theorize and pontificate about an ideal judiciary and the ideal judicial officer without ever having to actively, in our statements, confront the real judicial officer. And when we were confronted by their presence, either by questions, comments from the floor, or most often in the social settings that made-up the majority of the conference, our ideals gave way to the pragmatics and nuance of relationships and relationship-building. The need to acknowledge each other immediately complicates, and more than that defines and structures the way the ideal can be transformed into the real.

 

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It seems that the idea of a bad-acting judicial officer is necessary as a way of giving form to a collective indignation at the state of government, while the idea of an ideally constituted and functioning Judiciary, is necessary to give form to the collective hope we place in both government, and especially, the ability of the new constitution to restructure and reform it. The old authoritarian KANU regime and the autocratic Presidency provided real figures to rally and organize against, and the reform work of civil society seems – especially when it comes to strategy – to be focused on these figures. But what if these real figures were also just straw men; figures that needed to be beaten down in the interests of reforming government, but not necessarily the only direct impediment to that reform? What if Presidents Kenyatta and Moi, and the kleptocratic KANU governments they presided over, work best as a way of giving content to the liberal democratic ideal? And what if this ideal’s primary purpose is to create a separation between the idea of government and the pragmatic realities of governance? My time at the Annual Jurists Conference suggested that rather than narrowing the gap between the liberal democratic ideal and the realities of governance, the opening up of the political and legal space occasioned by reform and the new constitution, has actually led to an expansion of that gap. It is harder to nail down whom bad actors are than ever before, and to have those bad actors be consistently thought of as such across an increasingly diverse and constantly expanding public space organized around different and often divergent interests and identities. There has also been such a fluid movement of leadership between government and civil society that networks that were once, in practice, opposed to each other, remain only nominally so. The formal distinction between good and bad government, and good and bad actors, remains important to the work of government reform, and the completion of the constitution making process with the promulgation of a new constitution in August 2010, was only made possible by the violence that allowed this line to be forcefully re-inscribed in the Kenyan sociopolitical landscape.

 

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Origins How did the constitution come to occupy the moral position it currently occupies in Kenya, and why does it hold so much salience in political discourse? The first set of clues to guide us can be found in the Agreement and the subsequent National Accord. A description of the two documents is in order. I will start with the Agreement. The document is divided into two parts, the Preamble and a second section that lists the terms of the agreement between the two principles and that mirrors the Description of the Act section in the National Accord. The Preamble lays out the immediate and historical roots of the crisis that preceded it. It begins by noting that the crisis “has brought to the surface deep-seated and long-standing divisions within Kenyan society” in order to emphasize the importance of addressing divisions that “threaten the very existence of Kenya as a unified country.” The solution offered in the Preamble is couched as a political one focusing on the country’s leaders. This political solution is described as the necessary event, given the prevailing political stalemate – “there must be real powersharing” – that will “move the country forward and begin the healing and reconciliation process.” A coalition government is planned “to create an environment conducive to … a partnership … [that can] build mutual trust and confidence …[by enabling] Kenya's political leaders to look beyond partisan considerations with a view to promoting the greater interests of the nation as a whole.” The agreement is supposed to provide the coalition government with “the means to implement a coherent and far-reaching reform agenda, to address the fundamental root causes of recurrent conflict, and to create a better, more secure, more prosperous Kenya for all.” One early emphasis of the constitutional reform movement was the creation of a transitional coalition or unity government whose job it would be to set the stage for real government reform and for its entrenchment via the creation of a people-driven constitution. A significant number of the people involved in the signing of the National Accord, including the two principles, Mwai Kibaki and Raila Odinga, had been a part of the opposition and/or reform movements and I suggest that it is no accident that a coalition government was the vehicle chosen to end the political stalemate that the country found itself in. The language of the Preamble to the National Accord also

 

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reflects the language that was used by the reform movement in the almost two decades prior to the signing of the National Accord, calling on the formation of a unity government whose focus would be on national rather than partisan political interests. We should also note here that the National Accord followed on the five-year term of the NARC (National Rainbow Coalition Party) that had swept to power in December 2002 on promises of creating a new constitution within 100 days of coming to power. The NARC government was essentially a coalition government that brought together a disparate collection of groups and individuals opposed to the outgoing President and his designated successor, and were greeted with a tremendous amount of public goodwill. The NARC government was initially termed the “civil society government” because of the large number of civil society activists and career opposition politicians that became a part of government and was expected to bring about significant reform. It ultimately disappointed many of those who remained in civil society as old patronage networks appeared to emerge unscathed, and the failure of the two sides that made up NARC – the National Alliance Party of Kenya and the Liberal Democratic Party – to equitably share political power, eventually led to a reconfiguration of the two sides as the Party of National Unity and the Orange Democratic Movement and to their squaring off in the 2007 elections. My point is that, coalition parties and coalition government came into vogue only after the reform movement brought the idea into national consciousness and after members of that movement moved into positions of political power. The second part of both the Agreement and the National Accord call first for the establishment of an Office of the “Prime Minister of the Government of Kenya, with authority to coordinate and supervise the execution of the functions and affairs of the Government of Kenya.” The “Prime Minister will be an elected member of the National Assembly and the parliamentary leader of the largest party in the National Assembly, or of a coalition, if the largest party does not command a majority.” Both these provisions are nods to the Orange Democratic Movement and its Leader, and then presumptive Prime Minister, Raila Odinga. In addition to the creation of the post of Prime Minister, “Each member of the coalition shall nominate one person from the National Assembly to be appointed a Deputy Prime Minister,” while “The Cabinet will consist of the President, the Vice-

 

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President, the Prime Minister, the two Deputy Prime Ministers and the other Ministers. The removal of any Minister of the coalition will be subject to consultation and concurrence in writing by the leaders.” These two provisions are meant to ensure the rewarding of the different political personalities aligned on either side of the political divide as well as prevent a repeat of the last agreement between these two leaders, the oft-discussed Memorandum of Understanding (MoU) that created the National Rainbow Coalition. The MoU was intended to create an almost identical government structure, but lacking legal standing, was easily discarded by President Kibaki after he took office. In order to ensure the preservation of this structure for the duration of the current Parliament, that is until the next general elections, the Act also provides that: (1) “The Prime Minister and Deputy Prime Ministers can only be removed if the National Assembly passes a motion of no confidence with a majority vote”; (2) “The composition of the coalition government will at all times take into account the principle of portfolio balance and will reflect their relative parliamentary strength”; (3) “The coalition will be dissolved if the Tenth Parliament is dissolved; or if the parties agree in writing; or if one coalition partner withdraws from the coalition”; and most importantly given the symbolic and productive power of the Constitution in Kenya, (4) “The National Accord and Reconciliation Act shall be entrenched in the Constitution.” It is clear that Raila Odinga and his allies had learned from their mistakes, and together with a far more vigilant civil society – which had according to many of its members relaxed when the NARC government took over power from KANU – the National Accord aimed to entrench in the current constitution the procedures and structures that would ensure that steps were taken towards the creation of a new constitution and to a focus on the long-term issues that provided the fertile ground for the sprouting of political violence. Both the Agreement and the National Accord, as does the new Constitution, direct considerable energy at highlighting the need for more accountable, competent, effective, and responsible leadership. While my interviews with the reform activists and members of the government commissions point to the fact that that the focus on integrity and the accountability of leadership was very much derived from the public itself, it is apparent also that a push for new leadership in government was very much always at the heart of

 

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the push for constitutional reform and in fact help structure its agenda. It of course makes sense to argue that leadership is of outsize importance when it comes to the structuring of government, but it also appears true that the attempts by civil society to upend the patronage networks that prevented their own upward mobility, and upward mobility in general, were focused on and motivated by their attempts to assume leadership over the governance project. Again, this is not meant as an indictment of civil society or the reform agenda. One of the criticisms leveled against the political leadership in the country is that it has failed to allow for the development of new leadership and has meant that several generations of potential leaders have been left, chomping at the bit, to wait for the opportunity to bring their views and lessons to bear on the governing of the country. Still, this particularity of the Kenyan experience (a particularity that is however repeated in several African nations) does not mean that leadership as imagined by civil society has an independent value disconnected from the socioeconomic and political processes that determine how the national society is produced. I am suggesting that the push to highlight leadership is part of the process of producing knowledge that will nevertheless re-embed the hierarchies and inequalities that this new leadership is supposed to be able to confront. Leadership has continued to gain discursive importance over other factors that clearly also impact on the political and socioeconomic condition in Kenya, such as its relative position in global capitalist production, the continued influence of non-Kenyan actors and foreign government and non-governmental interests, and the influence of kin and peer networks on political and economic life. The leadership question appears to have become something of a placeholder for other factors that impact the political and socioeconomic conditions found in the country. In a very hopeful gesture, the Agreement suggests that: “With this agreement, we are stepping forwarding together, as political leaders, to overcome the current crisis and to set the country on a new path. As partners in a coalition government, we commit ourselves to work together in good faith as true partners, through constant consultation and willingness to compromise.” This vision of leadership directly contradicts what was known about the relationship between the two sides. The unwillingness of both to cede

 

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power to the other, not an attempt to govern together for the good of the country, was the true motivation behind the signing of the agreement. The coalition government was never a government of equals. There was a senior partner that had no interest in ceding any power to the junior partner. However, as one well-placed informant, Karuti Kanyinga,57 opined in an interview, this discordant relationship, created a structure that facilitated the reform agenda. Since the senior partner was politically disinclined to share power, the junior partner was morally inclined to support reform. This was a political calculation. Since both sides contained individuals who had served in the old Moi regime – and not just as foot-soldiers – and benefited greatly from it, it appears certain that had the sides been switched, the results would have looked the same and the political calculations would have been the same. The point is that the current structure of government has allowed the reform agenda to maintain a constitutive role in the production of government. The monitoring of the coalition government has given both sides reasons to embrace the language of reform in an attempt to talk to each other across the political divide, as well as to seize the moral high ground and the political momentum and public sympathy that comes with it. However, as Kanyinga conceded, the ascendancy of the reform agenda has come with its own patronage networks, with certain connected or well-known civil society activists and reformers centrally placed to benefit from and contribute to the production of a new national society, and others still, and disappointingly, excluded from these processes. Reform has been institutionalized as government practice; a process that has involved getting the law and a reformed Judiciary to be widely accepted as neutral, transcendent, observers of Kenyan society. Below, I look at the precise location from which, and processes through which, this particular idea about law and the Judiciary emerges, and focus on the particular practices through which these ideas are activated. It is the social and political circumstances that surrounded the 2007 general elections – and I am talking here about the disputed presidential election, the postelection violence that followed the announcement of the results of that election, the                                                                                                                 57 Senior Research Fellow, Institute for Development Studies, University of Nairobi, and a Director at South Consulting, Kenya, which is in charge of the Kenya National Dialogue and Reconciliation (under whose auspices the National Accord was negotiated and signed) Monitoring Project.  

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internationally-mediated settlement that ended that violence and created the “Grand Coalition” government, and the International Criminal Court process that was launched to bring those most responsible for the violence to justice – that allowed the “reform movement” to be re-inserted into the process of constitution-making in a way that returned the abstractions of liberal democratic theory to the centre of political practice. However, liberal democratic theory now served a different political purpose than it did at the initiation of the reform process almost two decades prior. Liberal abstractions were no longer simply used to force power to the surface so that it may be challenged; instead they were used as a claim to power. The shift is subtle and it revolves around the making explicit of the transnational nature of reform activism – from the financial support given by international NGOs and “donor” governments to civil society organizations, to the connections and relationships maintained by civil society activists, especially those professionals who were members of the earliest iteration of the “reform movement,” which underlie the liberal democratic beliefs and practices that structure the reform project. In “Africa in the World: A History of Extraversion,” the preface to the second English edition of his book The State in Africa: The Politics of the Belly, Jean-François Bayart makes the claim that the “extraversion hypothesis allows us to identify in the postcolonial State south a the Sahara a new form of a particular civilization … [characterized by] oral culture, a rather weak development of productive forces, extensive agriculture and pastoral activity without use of private-title land tenure, a rather limited degree of cultural and social polarization, and limited degree of economic accumulation and political centralization, both of which have been based largely on the control of the economic benefits flowing from dependence on the exterior environment rather than on the intensive exploitation of those living under a particular system of political domination.” (2009: xxix-xxx) Arguing against dependency theory, which tended to see the dynamic of dependence as a structure, implying immobility, rather than as a historical process, Bayart echoes the arguments of Bruce Berman (1992) who explains that “the combination of dependency theory and structuralism saw colonialism from a distance, through the reverse end of a telescope, treating Africans as a relatively undifferentiated

 

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mass who were exploited, impoverished and impotent victims; dominated classes rather than agents of their own history.” (1992: 180) Bayart’s argument allows us to begin to understand the very particular process through which “economic accumulation and political centralization” in Kenya is structured around the “economic benefits” structured around its relationship to an external (and increasingly global) community. The political settlement that ended the post-election violence in early 2008 worked, primarily, to intensify the public visibility of this relationship of dependence and, in particular, how it worked to benefit a select few. Bayart’s assertion that it “is … clear that the colonization of Africa was to a considerable extent a result of the aspiration of financiers, notably in Britain, to integrate the continent into capital markets, to guarantee the security of foreign investment, and to include Africa within the ambit of international commercial flows,” (Bayart 2009: xi) points us not just to the economic flows that mark what Wallerstein refers to as a “capitalist world system” (Wallerstein 2006: 48) but also to social structures that allow value to be objectified and then distributed Bayart’s reminder that “catechists, schoolteachers, doctors, nurses, administrative personnel, clerks of colonial companies, all were the real worker-bees of the colonial hive, as later they were to be of the nationalist movement” (Bayart 2009: l) is especially important to note with the above in mind. “As salary earners, they were instrumental in creating the foundations of the class which is currently dominant in Africa and in setting in motion the process of primitive accumulation from which that class was to benefit.” (2009: l) In Kenya specifically, the educated, professional middle class, as distinguished not just by their occupations but by the fact and process of education itself, became not just political leaders but also the “experts” who would guide the governmental field. The international community, represented by Kofi Annan, former Secretary General of the United Nations and Chairman of the African Union Panel of Eminent African Personalities that negotiated the agreement that ended Kenya’s post-election violence and created the Grand Coalition government, and Luis Moreno Ocampo, the former Prosecutor of the International Criminal Court who chose to investigate the situation in Kenya and ultimately to charge six Kenyans, five of them prominent personalities, with crimes against humanity, was inserted into Kenya’s domestic political

 

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affairs in a way that reinforced the importance of an abstract universalism that is tied to the nation-state system. Universal human rights – a liberal-progressive common sense linked to the concept of an international community represented by organizations like the United Nations and the International Criminal Court – could become constitutive of the Kenyan nation-state once the international community became so visibly linked to domestic politics. It is the public intervention of the international community in Kenyan politics, and in particular the signing of the agreement between Raila Odinga and Mwai Kibaki that created a coalition government, which allowed liberal democratic theory, and with it the particular social landscape produced around reform activism in the 1990s, to become institutionalized as government practice. It is in this particular political climate that the abstractions of liberal theory seemed to acquire the kind of power that allowed them to actually reshape government. It is the interaction made possible in the aftermath of the 2008 post-election violence between a globally-oriented civil society with extensive transnational connections, the idea that liberal democratic theory could provide not only the raison d’être of the state but its actual content in terms of government practice, and the social hierarchies, interactions, and relationships that emerged in the early period of reform and constitution-making (roughly 1992–1997) that I refer to as the “reform state”. The role of the International Criminal Court in Kenya’s local politics, since 2008, cannot be gainsaid. Even the most cursory or superficial analysis of Kenyan politics in this time frame will show that the indictments handed down against six58 Kenyans for their alleged roles in the post-election violence has helped frame the issues, personalities, and relationships, around which Kenyan politics has been organized in the lead-up to the first general and presidential elections under the new constitution. In the end, two of the indictees59, Uhuru Kenyatta and William Ruto, who were on two different sides in the                                                                                                                 58 Referred to locally as the “Ocampo 6” after then Prosecutor Luis Moreno Ocampo who made the decision to open up an investigation into the situation in Kenya without a request either from the government or a referral from the Security Council, a first for the prosecutor’s office and for the court. 59 There are two separate cases related to the Kenya situation: ICC-01/09-01/11, The Prosecutor vs. William Samoei Ruto and Joshua Arap Sang; and ICC-01/09-02/11, The  

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2007 elections and who stand accused of inciting and supporting ethnic violence that pitted their respective ethnic groups against each other, were elected, respectively, President and Deputy President of Kenya in March 2013. The link that emerges between the ICC cases and the Supreme Court case challenging the election of Uhuru Kenyatta in 2013, an election that had most members of the reform movement firmly on the side of Raila Odinga, reveals how the reform movement sees the Judiciary as the place to push a particular political agenda that is actually a repudiation of politics in general, and of local or domestic politics in particular. This is made possible through the collection of beliefs and practices linked to the promotion of international human rights, which underlie the liberal democratic agenda pushed by reformers. These beliefs and practices activate a concept – a global “humanity” – that is used to make politics the object of law and to make transform law and the Judiciary into locations for moral as opposed to political confrontations. The actions taken by the International Criminal Court, absent of any official request by the Kenya government for the Office of the Prosecutor to investigate the post-election violence, can be taken as representative of the success of efforts made by a globallyoriented civil society to subvert local political processes. The push to have a legal process that imagines and constructs its adjudicatory purpose as being necessarily set apart from the social, economic, and political context that the violence emerged from, suggests a view of law as something that somehow sits both outside and above other socio-material processes. The logic of having an international criminal process deal with what might otherwise be seen as an issue that arises out of domestic social, economic, and political conditions, is tied to the production of a progressive, cosmopolitan identity by a group of civil society and reform activists who have crafted and nurtured international social interactions and intimate relationships.                                                                                                                 Prosecutor vs. Uhuru Muigai Kenyatta. The pre-trial chamber refused to confirm the charges against one co-accused in each case, former government minister, Henry Kosgey, and former Commissioner of the Kenya Police (the then title of the head of the police), Mohammed Hussein Ali, while the new Prosecutor Fatou Bensouda, voluntarily dismissed charged against Mr. Kenyatta’s other co-accused, former Head of the Civil Service, Francis Muthaura, after a key prosecution witnesses admitted to lying.

 

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Judicial Authority In December 2010, the Kenya Section of the International Commission of Jurists (ICJ Kenya) and Konrad Adenauer Stiftung (KAS) held their Annual Jurists Conference at the Mombasa Continental Resort. The theme of the conference was Constitutional Gains: Judicial Reform Implementation and Accountability Debate, with a sub-theme: Reflecting, Monitoring and Embedding, Integrity Concepts within the Judicial Reform and the Constitutional Reform Process. Two issues in particular commanded the attention and energies of conference participants.60 First, coming three months after the country’s new constitution became law, much of the discussion, especially in the various presentations and speeches, revolved around the opportunities offered by the constitution to advance politico-legal and socioeconomic rights through the courts. Second, and this was most evident during plenary discussions, the upcoming vetting of judges and magistrates to gauge their suitability to sit on the courts in the new constitutional dispensation also took centre stage. Many of the judges and magistrates present, worried that they would be made scapegoats for the perceived failures of the Judiciary under previous administrations, and insisted that they had performed their jobs not only with integrity and professionalism, but had done so in spite of on-the-job conditions, including a general and pervasive lack of resources, that would otherwise have mitigated against their ability to dispense justice. The discrepancy between the prepared remarks offered by invited guests, and the content of the discussions that happened once the forum was opened up to general commentary, reveals the gap that exists between the ideas that structured constitutional reform in Kenya and the socio-material conditions this theory was aimed at reorganizing. The reform activists, civil society leaders, legal professionals and politicians who spoke of the potential offered by the constitution to reform government and re-constitute the country’s socioeconomic foundation, did so by putting to one side the question of how these changes fit into a larger socioeconomic landscape. The idea of reforming the                                                                                                                 60 The analysis and description that follows relies on notes I made at the conference as well as on the summary of the conference proceedings published by KAS and ICJ Kenya at http://www.kas.de/wf/doc/kas_21680-1522-2-30.pdf?110209060955  

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Judiciary so that it could fulfill its mandate within the new constitutional dispensation – to safeguard the gains made by the reform process and to promote democratic freedoms and liberal rights – came out of a narrative that suggested that the Judiciary had become a hopelessly corrupt institution that had been almost completely co-opted by a political and economic elite and anti-democratic forces. At the AJC, however, this narrative was confronted by actual jurists who saw this attempt to clean out the Judicial rot as an attack not just on their integrity but on their ability to make a living at their chosen profession. As one commentator put it, “The vetting of judges is of personal and not abstract concern to judges and magistrates and the organizations and societies that represent them. How will they react to constant attack and how will they do their jobs in this political context?” It is the interaction between “abstract” concerns and “personal” ones that guides the exploration that follows in this chapter. It is, however, important to note that other than when the jurists were defending their jobs and the quality of their work, they themselves talked about the Judiciary in largely abstract terms. This was especially clear on the last day of the conference when, after breakout sessions and group work, the participants reconvened to make policy proposals that might guide the work of jurists and of the Judiciary in a new constitutional order. These proposals ranged from the specific – raising Industrial Courts to the level of the High Court, doing away with tribunals, appointing Court Managers to take over administrative duties – to a more general concern with access to justice for the poor. While the breadth of recommendations, and the differences in their focus, was to be expected, what was of particular interest was that the strategies tied to these recommendations all deferred actual action and responsibility. There needed to be more education and training, more information made available, more administrative guidelines, and more legislation. Having said what needed to be done, the actual work of doing it was deferred into the future and responsibility placed on others. As the plenary at the AJC broke into groups, participants were instructed that their discussions, focusing on the constitution, should aim to provide: “strategies for promoting access to justice for the poor, decide on state actions to be taken to ensure that these strategies are realized, set timelines for completion of actions, identify persons responsible for execution, and identify one [location] that you would propose as a focal point for monitoring implementation process.” A number of important ideas are packed

 

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into these directions. First, the link between justice and poverty is highlighted. This link introduces justice as an abstract quality that has the poor as its object. By this I mean that justice emerges in the process through which the “poor” are identified and made accessible to policy interventions. Second, the state is identified as the particular site from which these policy interventions should emerge. Third, “implementation” is introduced as a process through which the State, and the individuals given responsibility for executing the proposals that emerge out of discussions, can be monitored and made accountable. The directions given to the conference participants, as one can easily imagine, were not provided in a vacuum. Many of the presenters and panelists who spoke during the conference were well-known reformers and civil society activists. The process that had culminated in the promulgation of the new constitution in August 2010, had been initiated by a group of pro-democracy activists, scholars, intellectuals, religious leaders, lawyers, and other professionals who, organized as a “civil society”, teamed up with opposition politicians in the late 1980s and early 1990s in opposition to the KANU government of then President Moi. What was essentially a relationship of convenience constructed to help remove Moi and KANU from power, allowed both sides to advance their particular agendas without ever having to reconcile the significant differences in their worldviews. This resulted in a climate of reform in which everyone could claim to be a stakeholder and claim to be working in the interests of reform. Reform was indeed all-inclusive but in a very particular way – it became a grab bag of contradictory and often directly opposed beliefs, practices, and strategies. Justice Mokgoro’s, a former Justice of the Constitutional Court of South Africa, gave two separate presentations at the 2010 AJC. The first, her keynote, was titled Constitutional Courts and Constitutional Making in Post Conflict States: The Case Of South Africa, Thoughts And Reflections, and focused on the process through which the Constitutional Court of South Africa was established, with what mandate, and its role visà-vis both the Interim Constitution of 1993 and the 1996 Constitution. The similarities between the South African case that was being laid out by Justice Mokgoro and how the Kenyan Judiciary was being restructured in the wake of the new Kenyan constitution was

 

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obvious and expected given the extent to which the South African experience served as a model for the changes that civil society activists saw Kenya’s new constitution as being created to facilitate. The idea that Kenya was yet to properly transition out of colonial rule, and that the various Kenyan governments since independence had only served to ensure the continued subjugation of Kenya’s impoverished majority, framed the reform discourse and allowed it to connect itself to the situation in South Africa at the end of apartheid. There were, however, other similarities between the Kenyan and South African cases that are just as instructive. Chief amongst those was Justice Mokgoro description of the Interim Constitution as a political compromise where agreements had to be struck to allow for a democratic transition. This included the setting up of the Truth and Reconciliation Commission and also mechanisms like affirmative action put in place to ensure the participation of people who had not previously been involved in governance institutions. The completion of the constitution-making process in Kenya can also be called a political compromise. Kenya’s new constitution, in keeping with the overall structure of reform I mentioned earlier, is also a grab bag of competing and contradictory interests and ideals that reflect the fact that while a compromise was reached, the document came short of actually providing a political solution to the disagreements between various stakeholders and interested parties about what Kenya is. The way to confront basic disagreements about how Kenyan society should look, and how it should be governed, was to create a document in which all these ideas were included and to defer the question of reaching a political solution into the future. This made it possible for a transition to occur, but a transition to what? Law and Politics Karuti Kanyinga, of the Institute for Development Studies at the University of Nairobi, identified, in an interview I conducted with him, the three groups that made up the reform movement in the 1990s. These were the social democrats who were interested in the provision of social services to the people and were willing to have top-down reform, conservatives who were anti-reform and were interested in maintaining the

 

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current structure of government and activists organized around individual rights and human dignity who were interested in people-driven reform and in creating a new social contract between the people and government. According to Kanyinga, all three groups won in certain places in the constitution. The constitution guaranteed social democrats the devolution of money and authority from central to local government as well as the idea that the government was responsible for provision of services to the people. The anti-reform group was appeased by a strong central government, a President who continued to wield significant power, and a weak Senate [the Senate was created to represent the interests of the county government at the national level]. Finally, the advocates of individual rights ended up with a constitution with a very progressive Bill of Rights, a national referendum on the constitution before it could become law, and the notion that it is the needs and interests of the people that drive constitutional authority. While Kanyinga wondered what would happen during implementation as the three groups started competing with each other again, I am interested in the fact the process of reform and constitution-making seemed to have evolved a structure that ensures that this competition would either only ever happen in an abstract sense or be contained so as to limit the need to actually reach a political solution in the present. In a sense, the structure of reform seemed to be built around the fact of, and ultimately the need for, transition. While there had been discussions in South Africa about whether to purge the Judiciary and the Public Service as part of this democratic transition, the decision was ultimately made to maintain these institutions and to integrate them instead. A Judicial Service Commission was set up in the Interim Constitution to begin the work of diversifying the Judiciary and to do so through an open and transparent process that would engender support for the Judiciary, an institution that lacked legitimacy because of its role upholding apartheid-era laws. Ultimately, according to Justice Mokgoro, this process was successful. But we should hone in on why she saw it as successful. In Justice Mokgoro’s estimation the “Constitutional Court has attained trust as the highest court in the land. The public generally feels that the court deals with their matters without fear or prejudice.” This public trust has been acquired for a variety of reasons and through a variety of processes. For one, the hiring of new judges was conducted

 

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through an open and transparent process where “nominations could be made by any member of the public and one could become a judge based even on academic experience.” The Judicial Service Commission then short-listed candidates and held public interviews in the presence of the media to provide an opportunity for thorough public scrutiny. This Judicial Service Commission, however, with whom the ultimate responsibility for hiring law, was made up almost exclusively of legal professionals. The JSC was constituted by a cross section of lawyers, and judges, with the Chief Justice as chair, judges of provincial courts, advocates (representing the Bar Council) and attorneys (representing the Law Society), academia represented by law teachers society of South Africa, politicians (representatives from both houses of parliament) leading to about 30 people a majority of whom were politicians. Parliament has formed a habit of sending lawyers who are politicians to represent them in JSC.

As can be seen from her comments, it is the fact that the JSC was made up of lawyers, jurists and other legal professionals that provided it with its legitimacy. It is reasonable therefore, to suggest that according to Justice Mokgoro, it was partly the presence of legal professionals, and the qualities imbued in them by virtue of their knowledge of the law, rather than, for example, (and I am using the example she uses) their standing as elected representatives, that allowed the JSC to fulfill its mandate of selecting qualified jurists. It was law and the legal profession that best represented the interests of the public. In fact, even though “there are critics at a political level … politicians will not engage in public spats with the Judiciary and with the Constitutional Court and it is necessary for it to remain like that especially following the lack of trust present in apartheid.” This particular relationship between the Judiciary and the two more ostensibly political branches of government – the Executive and the Legislature – or between “law” and “politics” was reiterated several times over the course of the conference and linked to the success of the reform process. Dr. Musila, a legal scholar and researcher, acting as a discussant after a presentation on the practical feasibility of judicial vetting, provides a reading that quite accurately summarizes the prevailing sentiment about this relationship found in reform and civil society circles, and held, increasingly, by the public. The Judiciary is structurally isolated from electoral politics and from politics itself. Judges must maintain the distinction between the law and politics. The survival of the judicial entity should therefore be based on this. However judges must understand the societies in which they operate as well as the politics of the circumstances in which they are operating and this presents a challenge.

 

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Institutions are constructed through a political process and the judicial process gives legitimacy to those institutions. At what point does the judiciary distinguish itself from the political process? Judges are not political party members. What you need are judges that are committed to the cause. They must recommit themselves to the people and publicly denounce all political party politics. You cannot lose sight of the political processes and its context for every issue that you deal with but you must always do so with the people in mind.

Examining this statement, a few things stand out. One that the Judiciary is understood as necessarily removed from the political process, two that politics is equated with the electoral process and party politics, and three that this separation from politics is seen as a commitment to “the people.” In fact Dr. Musila goes so far as to call for a denouncing of party politics as a way of showing commitment to the people, and later argues, “Criticism of the judiciary by the political class through public utterances that malign and display a lack of confidence in the judicial officer is an enemy of the reform process. Objective criticism is welcome by the judiciary but not the public utterances made by politicians who are public opinion shapers.” There is an interesting shift that occurs between what Justice Mokgoro says, and what Dr. Musila calls for. Justice Mokgoro structures her discussion of the relationship between the Judiciary and politicians around the question of interpreting constitutional provisions. Traditionally the idea of a “separation of powers” between different branches of government is meant to create a system of checks and balances that ensures that power is not concentrated in one person’s or one group’s hands (as has been argued has been the case in Kenya around the office and figure of the President) with each branch of government having particular responsibilities and particular powers linked to those responsibilities. In this context, the courts have a particular responsibility to act to protect the constitution when either the Legislature or the Executive acts in a way that exceeds its constitutional authority and therefore act counter to the ideas about how society should be structured and governed. The courts have other responsibilities as well, relating to criminal and civil matters that need adjudicating. Here again, the courts are expected to perform these duties in keeping with constitutional provisions meant to safeguard individual rights and freedoms. The Judiciary, therefore, is tasked, like the other branches of government, with working within the limits of the constitution and in keeping  

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with the ideas embedded therein about what society is. But it is also tasked, in a special way, with ensuring that the other branches of government do not exceed their constitutional mandates. By being the branch of government whose particular responsibility it is to make sure that the constitution is protected, it acquires a position in the structure of government in a constitutional democracy that is quite unique. It is, essentially, first amongst equals. So, what happens to the Judiciary when, as in the Kenyan case, the shift is made from “interpreting” to “implementing” the constitution? Dr. Musila’s statements suggest that the Judiciary actually doubles down on this special role it occupies in the government structure. That is, the Judiciary actually has to de-link itself from politics in order to perform its role as protector of the constitution. The idea of “interpreting” the constitution suggests that there exists some kind of embedded system of rules that is revealed only in the process of setting boundaries between the different branches of government and in the process of adjudicating between competing parties and competing ideas in a civil or criminal case. The idea of “implementing” the constitution suggests, conversely, that it is not the process of competition inherent in the interaction between the different branches of government and between parties to a civil or criminal matter that reveals the system of rules, but rather that these rules only need to be revealed. The Judiciary in this latter case does not so much need to act as an adjudicator in a competition between opposed interests, as it does like a removed and detached observer that can provide the “right” and “true” answer to whatever is at issue. The Judiciary here is not first amongst equals so much as it is simply first. Reforming the Judiciary The issue of vetting Judges and Magistrates that dominated the AJC conference in December 2010 was tied to the demand that the Judiciary be reformed as part of the process of implementing the constitution. It was only a reformed and independent Judiciary that would be able to advance the project of government reform in light of resistance to this reform from a reactionary political and economic elite that were interested only in preserving their privileges at the expense of the interest and needs of

 

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“the people” and that used the institutions and structures of government to do so. The political branches of government had proved incredibly resistant to reform, and in particular because this political and economic elite were said to have mustered their resources to ensure that they remained in control of these institutions because of their role in directing national resources into patronage networks controlled by this elite. It was necessary, therefore, to reform the Judiciary first, and with a properly reformed and independent Judiciary in place, to go ahead with the project of implementing the constitution, and by this I mean implementing the reform agenda, and in particular, implementing the political agenda of a reform movement built by, and structured around the liberal and progressive beliefs of, a small group of middle class, professional, civil society activists that came of age as political activists during the Moi presidency. The process of reforming the Judiciary started almost as soon as the new constitution was promulgated on August 27 2010. Three of the first four Bills published in Parliament after this date were concerned with the process of implementing the constitution and with the process of reforming the Judiciary.61 This was no accident. The new constitution had as a key element of its transitional provisions, the establishment of a Commission for the Implementation of the Constitution whose function is to “monitor, facilitate and oversee the development of legislation and administrative procedures required to implement [the] Constitution.”62 And the Judiciary, as already noted, was seen as key to facilitating this process of implementation. But why was this the case? After all, the Judiciary had been much maligned by the reform movement and by civil society during the over twenty-year process of struggling for constitutional reform. In 2003, after the “civil society government” of President Kibaki and the National Rainbow Coalition Party (NARC) took over from KANU after defeating Moi’s handpicked successor Uhuru Kenyatta in the general elections of December 2002, the                                                                                                                 61 These were The Commission for the Implementation of the Constitution Bill, 2010, The Vetting of Judges and Magistrates Bill, 2010, and The Judicial Services Bill, 2010. The fourth Bill, and the first one enacted by Parliament was The Appropriation Bill, 2010, which provided for the transfer of money out of the Consolidated Fund to pay for salaries, expenses and capital expenditures at the various Ministries of the Government of Kenya 62 Sixth Schedule (Article 262) 5 (6) (a)  

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Judiciary underwent a much-publicized “radical surgery”. Then, as now, especially given the large number of former civil society activists and reformers in the Kibaki government, judicial reform was understood to be necessary to the process of reform writ large. Twenty-six judges of the High Court and the Court of Appeal retired on allegations of impropriety, a larger number than have currently been found unfit to serve by the Judges and Magistrates Vetting Board. Ahmednasir Abdullahi, a well-known activist, former Chairman of the Law Society of Kenya, and one of the LSK’s representatives on the Judicial Services Commission, offered a take on why this particular attempt to reform the Judiciary was going to be different. He suggested that the radical surgery mitigated the historic malaise that afflicted the Kenyan judiciary but failed to address in a fundamental manner the deep rooted and systemic failures of the judiciary. This was principally because the measures undertaken were principally as a result of temporal political goodwill on the part of the executive and were not the result of well thought out enduring policies or even statutory or constitutional readdress of the shortcomings of the judiciary. Institutionally, the judiciary refused to come to terms or admit how widespread and deeply entrenched the problems it faced were. This failure to appreciate the magnitude of the problems greatly undermined the feeble remedies proposed and implemented by the executive. The final solution to all the problems facing the judiciary was finally administered when the Kenyan people in August 2010 ratified through a national referendum a new constitution that radically reconfigures the judiciary. The judiciary was specifically targeted and the hope was that Kenyans could finally have a judiciary that is free of corruption, efficient, accessible, answerable to their needs and worthy of their trust and respect. The constitution addressed the historic shortcomings of the judiciary as an institution through a number of ways. First, it constitutionally elevated the judiciary to be at par with the executive and the legislature. The constitutional parity of the three arms of government freed the judiciary from the manipulative grips of the executive. The constitution also created institutions like the Judicial Service Commission (JSC) upon whom the affairs of the judiciary were now exclusively entrusted. Most importantly in order to address the issue of corruption and all historic grievances ordinary Kenyans have against members of the judiciary, a vetting Board has been created through constitutional and statutory provisions that will vet the suitability or otherwise of all judges and magistrates that were in the employment of the judiciary before the promulgation of the constitution on 29th August 2010. (Abdullahi 2011)

I have offered a fairly long quote here for a number of reasons. One is to highlight the link that is drawn between a reformed Judiciary and the constitution. The second is to

 

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highlight the link drawn between the judiciary and “the people.” It is the judiciary here that answers to their needs. Third, it is interesting to note that the traditional relationship between the constitution and the Judiciary has been inverted here. The constitution serves the Judiciary and not the other way around. While the constitution creates parity between the three arms of government, which, it is assumed, would lead to the reformation of all three, this parity instead is understood to free the Judiciary from the “manipulative grip of the executive.” Earlier in the same article, Abdullahi speaks directly to this point: The political class and especially the executive arm of government had during the lost decades maintained a frightening grip over the judiciary … The judiciary was also grossly understaffed as a deliberate governmental policy on the part of the executive to emasculate the judiciary as a counterforce or check on executive transgressions against the Kenyan people … These three interrelated features of the Kenyan judiciary overtime contributed to a gradual loss of faith in the judiciary, spurred agitation to radically reform the Kenyan judiciary and in away fundamentally fuelled the broader national clamour for a comprehensive constitutional reform in which the judiciary was target for special considerations. (2011)

It is possible to dismiss the particular relationship that Abdullahi suggests exists between the Judiciary and the constitution, where the Judiciary becomes the real object of the constitutional reform process. This is after all only one man’s assertion, and it appears in an article where he is providing the rationale for the vetting process. However, I think we need to view this statement within the context of reform itself, and perhaps to take seriously the assertion that it was a desire to radically reform the Judiciary that “fundamentally fuelled the broader national clamour for comprehensive constitutional reform.” To do so, however, we need to ask questions both about the “national” in “national clamour” and about the origins of this particular push for constitutional reform. What does “national” mean in practice? What does it do and how is it produced? What were the origins of this “clamour” for comprehensive constitutional reform? Why the constitution? In interviews with civil society activists, it was repeatedly emphasized to me how important the National Civic Education Program (NCEP I) designed and implemented

 

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under the auspices of the Constitution and Reform Education Consortium (CRECO)63 was in disseminating the ideas of the reform movement and the language of reform to the public. In addition, many of the second-wave of civil society activists who joined the movement in the wake of the initial successes of the reform movement, or who were organized politically through the work of the reform movement and participated in street protests and “mass action”, were members of CRECO and participated in NCEP I. This resulted in the detaching of the discourse on reform from its particular social roots. What was a middle-class project that reflected the specific political and socioeconomic reality, in which a particular group of individuals organized themselves into a “civil society” in opposition to the KANU government of President Moi, was transformed into a “reform” project that concerned the nation as a whole. It is also important to note that mass action and political agitation were organized initially, and largely, on the popular support that opposition leaders brought to the movement. Yet the ideas that civil society brought to the table, specifically a focus on liberal rights and constitution-making, were granted legitimacy as “national” desires that people were “clamouring” for, based on the extent and visibility of a popular agitation that was arguably not of their making. Tyranny of the Masses Lacking a popular base of support, civil society could not rely on electoral politics in its efforts to bring its beliefs and interests to bear on the production of Kenyan society unless it was willing to have those beliefs compromised by the politicians on whom it would have to rely if it were to effectively engage in the electoral field. In addition, the concerns civil society was focused on were not local issues in much of the country, or for much of the population. They were local issues amongst a very particular population, located primarily in Nairobi – a middle class population that was invested in the idea of belonging to a modern, progressive, cosmopolitan state, in professional and managerial employment, and in the belief that it was possible to “know” what “Kenya” was and to intervene in it in order to bring about certain outcomes. In particular, that it is possible to                                                                                                                 63 An umbrella organization of democracy and governance-focused civil society organizations founded in 1998  

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remake and reorder Kenyan society in line with liberal democratic ideals and in so doing to transform Kenya into a modern, progressive, and developed nation. Civil society was far more comfortable making use of the law and legal instruments, in promoting abstract concepts like liberal rights and democracy, in making use of programs like civic education, and in “collecting views” from the public, to lay claim to the right to define Kenyan society and to reconstitute the Kenyan state in line with that definition. This was partly because lawyers dominated civil society leadership, but also partly the result of the middle class and professional roots of a civil society based in Nairobi for whom “the nation” served as the locus of political agitation. Electoral politics, therefore, was going to be of limited usefulness to civil society activists, although this happened much to the surprise of these activists, who insist, and sincerely believe, that their actions are in the interests of “the people”. As if often the case when a particular population rejects belief systems that are imposed on them from outside precisely because these belief systems do not reflect local systems of production of reproduction, Kenyan civil society has been quick to say that Kenyans tend to vote against their interests when they vote against progressive candidates or for those candidates identified by civil society as “bad actors”. It is important to note here that, as I argued earlier, local elections have never been the place where the different regimes that have controlled the government of Kenya, were forced to publically show themselves and seek legitimation from a Kenyan public. They are in other words, not the location in which a “national” regime has had to assert itself as such. From colonial times on, elections in Kenya have been used primarily, and far more effectively, as a place where local concerns are debated and competing ideas about how to confront these local problems are selected between. The “national” always has a role in local politics, and a candidate’s legitimacy and ability to deal with the particular issues confronting a particular community is often inferred in the interplay between “local” and “national”. Looking back even at the single-party KANU era, despite the fact that elections appeared to be undemocratic, especially given the fact that certain specific individuals were locked out of the competition for positions because of their political affiliations, the party did not actually attempt to impose leaders on the populace from the centre. Much has been made of the fact that since the return of multi-party democracy

 

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there has been, with every election, significant overturn in Members of Parliament, but this has been true throughout Kenya’s history. The party system may not have provided the kind of democratic system that liberal democratic theorists might hold up as a model, but the competition for electoral positions was almost always decided at the local level, and no more or no less decided by the influence of money and the ability to achieve local prominence by connecting to larger extra-local patronage networks than any other “democratic” system. Elections were used in Kenya primarily as a place for intra-elite competition for “positions, status, and wealth,” (Bienen 1974: 193) while Kenyatta and Moi both chose to run the country using the civil service, including the Provincial Administration inherited from the British. However, while some members of the educated, professional elite chose to participate in this competition on its terms, which included acknowledging the importance of “strong ethnic identification, the maintenance of rural-urban ties among migrants, and weak class consciousness where the relatively underprivileged hope to ascend in the social and economic hierarchy through individual and ethnic movement rather than through class action,” (Bienen 1974: 193) those that didn’t had to find other ways of creating the kinds of identifications and social relationships that would allow for the (re)production of status and the creation of wealth. Cohen and Adhiambo's Burying SM (1992) was an examination of how social networks and social processes, and in particular those networks and processes that are important in creating and performing a professional, educated, middle class identity in Nairobi, play in the production of the categories of knowledge around which “Kenya” is produced as a social and political object. This production of “Kenya” does not happen just anywhere though, it happens through the courts and because of the very public nature of the judicial process in Kenya. In their investigation of the court case in which it was decided that the body of a prominent Luo lawyer should be buried in his ancestral homeland rather than his farm in the Nairobi environs, Cohen and Adhiambo suggest that "the essential challenge is in seeing [the] struggle for the body of Silvano Melea Otieno as itself constitutive, and not…simply reflective or diagnostic of culture and history." (1992: 99)

 

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In an effort to establish who had the legal right to determine where SM Otieno was to be buried – his wife according to statutory law, or his clan according to customary law – kin and peer networks were both put in motion, and made the subject of public inquiry. The aim was to portray SM Otieno as either a modern, urbane, cosmopolitan Kenyan with a modern nuclear family, a national and international rather than provincial and ethnic outlook, with a wife who was not from his tribe, children who had grown up in Nairobi, and limited links to his ancestral home and its culture, or a man who continued to participate in the rites and rituals that were part and parcel of a traditional Luo culture and therefore acknowledged and accepted the social imperatives that came with this identification, Cohen and Adhiambo reveal the extent to which all these categories – Luo, Kenyan, traditional, modern, tribe, and nation – are shifting and contested, and how the courts were used, in essence, to determine their particular content. Their ethnography, importantly, also suggests that the particular process in which categories and ideas acquire political and social value in Kenya remains outside of public view, keeping hidden the structures and networks through which state power is actually produced. As Cohen and Adhiambo describe it, "the practices of the courts, and virtually all the participants in the litigation, constructed a wall between the work of the court and the lattice of power in the Kenya of the 1980s." (1992: 83) Their point is that "the interrelationships, alliances, and common histories of various parties to the case, and of experts and authorities outside it, were excluded from the court, yet were essentially involved with it at every turn." (1992: 83) These alliances and interrelationships included old lawyer networks in Nairobi, as well as the social relationships forged between members of a nascent cosmopolitan, professional class whose middle-class experiences in Nairobi and abroad were often the real object of the court’s, and the public’s, interest. Yet, not only were the professional, kin, peer, patronage, and friendship networks excluded from the material presented before the court, the links between these networks and the power of the state remained hidden from view. The figure of President Moi, even though never directly linked to the case, remained a shadow over the proceedings in a country where the government was by then seen as increasingly authoritarian and where the state apparatus had been used repeatedly in an attempt to discredit and limit

 

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opposition that came from the very group of people whose lifestyles choices were the direct object of the case. My work, in a sense, starts where Cohen and Adhiambo leave off. The reform movement – with its beginnings in the push for the return of multi-party democracy, for increased political space and for the writing of a new constitution – was borne directly out of opposition to the powers and excesses of the Moi government. It also came out of Moi’s antipathy towards the reformers in particular and the urban elite and intellectual and professional classes in general, groups with whom Moi had little patience or common cause, and often no real social links.64 That the universities were a hotbed of much antigovernment activism and that much of the discourse and eventual practice of reform was borne out of the intellectual and social connections fostered within the universities increased the disconnect between the two sides. According to Cohen and Adhiambo, Moi is reputed to have grumbled about the award of an honorary degree by Haverford College in Pennsylvania to John Khaminwa rather that to Richard Kwach, the winning lawyer in the case.65 What I am arguing is that while the reform movement and the constitutional review process came to be understood as a natural response to the practices and excesses                                                                                                                 64 While Andrew Morton’s authorised biography Moi: The Making of an African Statesman (1998) has been derided in some circles for offering too one-sided and sympathetic a view of a man who many consider an autocrat and a dictator, the disconnect that he asserts exists between Moi and the urban, intellectual and professional elite, whatever the reasons for it might be, is a matter of public record. During the reform-era, and as a man who had had to walk a political tightrope to consolidate his position both as Vice-President to Kenyatta and later in the early years of his Presidency, he was especially dismissive of civil society and what he saw as their lack of a local political mandate and the support they received from abroad. Even in retirement, Moi has kept close to his rural Kabarak home and is rarely seen associating with the urban elite in Nairobi. That these feelings go both ways is also well known. He was seen as a political heavyweight but also seen as lacking in the intellectual heft and educational bonafides necessary to manage the country – Kiraitu Murungi, then Justice and Constitutional Affairs Minister under Moi’s successor, Kibaki, famously told him that in retirement that he should go rear his goats as he learns about good governance. 65 Moi later appointed Kwach to a position as a Judge on the Court of Appeal, the highest court in the country at the time, and was one of the Justices who resigned in the wake of the “radical surgery” of the Judiciary, while Khaminwa was one of the lawyers who, as described earlier by Mr. Kuria, was being monitored by intelligence officers because of his work defending political dissidents.  

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of the Moi government, they were really an idiosyncratic response that was marked, first, by the relationships between the tightly-knit group of individuals that formed the vanguard of reform, and second, by the urban and cosmopolitan lifestyles and the personal and social commitments, beliefs, and histories of what was largely a group of educated professionals based in Nairobi. While the discourse of democracy, rights, and good governance was activated by these individuals on behalf of “the people”, and sometimes at great peril of physical and other harm, the personal commitments that guided their efforts were necessarily not to an abstract “people” but to those individuals with whom they formed intimate and affective relationships. This is the “local” community to whom the idea of the “nation” as something inextricably linked to liberal democratic ideals and practices is particularly important and constitutive of society. Where I differ, perhaps, from Cohen and Adhiambo, is in how I view the courts, and in particular whether "the practices of the courts… constructed a wall between the work of the court and the lattice of power in the Kenya of the 1980s." (Cohen and Adhiambo 1992: 83) It seems to me that an analysis of the information and descriptions I have presented suggests, on the contrary, that civil society activists relied on the fact that the courts, and law in general, were widely understood as a site through which power was made visible, and in being made visible opened-up to challenge, in order to construct a project of reform built around liberal rights and constitution making. Judicial Politics There is a long history in Kenya, starting with the colonial government and continuing through the Kenyatta, Moi and Kibaki regimes, of court proceedings and judicial and quasi-judicial commissions of inquiry acting as the precise location in which “the interrelationships, alliances, and common histories of various parties to the case, and of experts and authorities outside it” (Cohen and Adhiambo 1992: 83) are opened up to public scrutiny, whether or not they are the ostensive focus of the proceedings. Before the SM Otieno case, there was the Judicial Commission Appointed to Inquire Into Allegations Involving Charles Mugane Njonjo (former Minister for

 

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Constitutional Affairs and Member of Parliament for Kikuyu Constituency),66 which ended up revealing the vast network of connections, both locally and internationally, that Njonjo held. It has been suggested that in the wake of the 1982 coup, as Moi sought to consolidate his power, he chose to go after Njonjo, who had been his biggest supporter in the battle against the coterie of politicians67 who had started a “Change the Constitution Movement” to prevent Moi as Vice President from ascending to the Presidency on Kenyatta’s death, precisely because Njonjo’s social and political networks rivaled and exceeded his own. The commission was tasked with investigating Njonjo’s personal conduct, which was alleged to have been “prejudicial to the security of the State, the position of the Head of State, the image of the President and the Constitutional government of the Republic of Kenya.” (AfriCOG 2007) It was the public revelation, in a judicial forum, of Njonjo’s private social life – the habits, lifestyle, and connections of the urbane lawyer with a privileged upbringing (he was the son of a colonial-era Kikuyu chief) who favored three-piece pinstripe and had trained as a lawyer in South Africa and England before being named Kenya’s first Attorney General – that allowed his power to first come into view and in becoming visible through a judicial forum be opened up to being defused. After KANU lost power in 2002 and Mwai Kibaki’s NARC government took over, the Judicial Commission of Inquiry into the Goldenberg Affair – a Moi-era scandal that was structured around compensation by the government for gold exports – became appointment television. While the commission’s report focused on the technicalities of the scandal – what happened, how it happened, when it happened, who was involved – the commission proceedings themselves not only revealed to the public the vast web of connections and relationships that allowed the scandal to take place, and how widely, and through which patronage networks its spoils were dispersed, they also allowed the competition between the NARC government, and especially the elements of civil society who were members of that government, and the KANU government to play out in public view. The fallout around the naming of Uhuru Kenyatta by Moi as KANU’s presidential                                                                                                                 66 Njonjo was also the extremely powerful former Attorney General under both Kenyatta and Moi from 1963 to 1979. 67 Njoroge Mungai, Njenga Karume, Paul Ngei, and Mbiyu Koinange amongst them  

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candidate, which led to the formation of NARC and the selection of Mwai Kibaki as the candidate of a unified opposition, was widely reported. However, the anger and dissatisfaction of civil society activists was given voice in a forum that was intended partly as a public shaming that would diminish the political and social power of the former president and his associates. The courts, and the judicial system writ large, therefore, became central to the project of reform, just as they have been to the other political projects that have sought to constitute Kenyan society and the Kenyan state. It is with this in mind that we can return to Abdullahi’s statement that “agitation to radically reform the Kenyan judiciary and in away fundamentally fuelled the broader national clamour for a comprehensive constitutional reform.” (Abdullahi 2011) It is clear from my analysis that the courts provided a location through which the reform movement could challenge the KANU regime of President Moi, and that this was the case notwithstanding the rulings ultimately handed down in the judicial proceedings themselves. This fact has led to a focus on the Judiciary as the particular instrument that has stood in the way of liberal democratic reform and that properly restructured, can be used to ensure that the middle-class reform project of the civil society members of the “reform movement” gets to reconstitute Kenyan society and the Kenyan state. The Judiciary, therefore, is the ultimate object of the constitutional reform project, as it is the Judiciary that is expected to consolidate the gains made by the reform movement. This is not simply a matter of the Judiciary being used to check the power exercised by the other branches of government, which ostensibly should entail all three branches of government acting as checks on each other, as much as it is an attempt to govern through the Judiciary, with implementation becoming about creating the hierarchy where the courts do not so much check political structures as diminish them. It is telling that despite the new constitution’s focus on decentralizing power, and the continuous criticism directed at the courts by reform activists, the Judiciary stands out as the one institution that retains its centralized structure. The attempt to govern through the Judiciary, however, cannot be understood outside the context of the particular history of political competition in Kenya, and in particular the history of a political constituency that creates the “nation” and “the people”

 

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as the objects of a struggle to constitute and belong to society – a professional, cosmopolitan middle-class elite steeped in liberal democratic ideals and who, therefore, reject the idea of creating a social and political identity based on provincial affiliations and networks. It is regularly repeated that Kenyans currently have more faith in the Judiciary than any other institution of governance and more faith in it now than at any prior period in the country’s history. One reason for this is the great public effort that has been made to clean up an institution previously associated with both high and low-level corruption; an institution, which was accused of regularly making decisions in support of the interests of the President and of an authoritarian government, and where from the level of the Court of Appeals down to the local magistrates, decisions in one’s favour could be bought. The Judges and Magistrates Vetting Board, set up by an Act of Parliament68 pursuant to the Constitution of Kenya, 2010 and insulated by law from interference by government, including from the Judiciary itself, has conducted a public campaign “to vet the suitability of all the Judges and Magistrates who were in office on the effective date of the new constitution of Kenya to continue to serve in accordance with the values and principles set out in Article 10 and 159 of the constitution.”69 In addition, the Judicial Services Commission, itself a creature of the new constitution,70 was responsible for the appointment of the Justices of the new Supreme Court, including the appointment of a Chief Justice and Deputy Chief Justice, through a public interview process. This process seemed to be used partially to publically excoriate many of the Judges of the High Court and the Court of Appeals that had served under the previous constitutional dispensation. In the end, the Judicial Services Commission chose as Chief Justice, a leading light of the reform movement and the constitution-making process, Willy Mutunga.

                                                                                                                68 The Vetting of Judges and Magistrates Act, 2011 and The Vetting of Judges and Magistrates (Amendment) Act, 2011 69 See “Objectives” of the Judges and Magistrates Vetting Board at http://www.jmvb.or.ke/about-us/objectives.html. 70 Established under Article 171 of the Constitution of Kenya by The Judicial Services Act, 2011  

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Finally, the post-election violence of 2008 was blamed partly on the fact that the public had no faith in the ability of the Judiciary, as then constituted, to independently and without bias handle disputes arising from the Presidential election as it was conducted by the Electoral Commission of Kenya (since replaced first by the Interim Independent Electoral and Boundaries Commission and then the Independent Electoral Boundaries Commission). To add to this, The Commission of Inquiry into the Post Election Violence in Kenya (also known as the Waki Commission after its chair, Justice Philip Waki of the Court of Appeals) recommended the setting up of a special tribunal tasked with investigating and prosecuting those most responsible for the violence. This was another indictment of the Kenyan Judiciary as it essentially questioned the ability of the Kenyan judicial system to deliver justice in respect of the crimes committed. Failing a failure to set up the tribunal, Justice Waki provided a list of names of several suspects in a sealed envelope to Kofi Annan (the chief mediator between the two sides following the disputed 2007 elections), which was to be given to the Prosecutor of the International Criminal Court who would open up an investigation into the Kenya situation. The failure to set up this special tribunal as recommended by the report of the Waki Commission, after the defeat in parliament of a series of bills to that effect introduced by the government in early to mid-2009, occasioned the transfer of both the sealed envelope and evidence and other material collected by the Waki Commission to the Office of the Prosecutor of the International Criminal Court, received by its then head, Luis Moreno Ocampo, in July 2009. The Office of the Prosecutor monitored the situation in Kenya before making an independent finding to open official investigations and finally to bring charges against six suspects in two cases, four our whom, two in each case, had those charges confirmed by the Pre-Trial Chamber II of the ICC to which the Kenyan cases were assigned. It is necessary to understand the confidence that Kenyans are said to have in the Supreme Court, and the changes to the Judiciary as a whole, in the context of the ICC cases. The ICC itself, the charges emerging out of the post-election violence, and the process through which the charges have been investigated and the cases confirmed, reflect a view of justice, and the role of judicial processes in relation to larger political processes, held by a cosmopolitan, middle-class, professional, civil society. The ICC is

 

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intended as a judicial process that is necessarily detached from the political processes that structure the competition for and distribution of social and economic resources at the level of the nation-state. While this can be seen as a necessary condition of the kind of work the ICC is created, under the Rome Statute, to do, with “The jurisdiction of the Court … limited to the most serious crimes of concern to the international community as a whole … [and] in accordance with this Statute with respect to the following crimes: (a) The crime of genocide; (b) Crimes against humanity; (c) War crimes; (d) The crime of aggression;”71 it does raise several questions about the nature of the justice that the court provides. How, for starters, can we begin to evaluate what exactly “serious crimes of concern to the international community as a whole” are? Implied in this statement is the idea that there is an international community that either precedes the existence of this serious crime, or that emerges with the commission and/or subsequent indictment, both legally and otherwise, of an act or omission that is properly understood to be criminal. The former suggests a quasi-formal entity with some kind of effective politico-legal authority it can bring to bear, while the latter suggests an entity that is structured primarily as a response or reaction to the “crime.” I distinguish between these two possibilities because of the various ways belonging to an international community, and with it to a common “humanity” whose “rights” have to be protected, is invoked in Kenya for a multitude of political purposes. In particular, I am focused on how this international community, a common humanity, and human rights, are invoked to demand social, political, and economic interventions from the state that map onto and reproduce a worldview that emerges from a professional middle class living in Nairobi. When speaking of the modern world-system, Immanuel Wallerstein claims that “The question – Whose right to intervene? – goes to the heart of the political and moral structure of the modern world-system. Intervention is in practice a right appropriated by the strong. But it is a right difficult to legitimate, and is therefore always subject to political and moral challenge.” (2006: 27) Wallerstein’s point is important in the Kenya context for two reasons. First, because of the role the ICC has and continues to play in                                                                                                                 71 Article 5 of the Rome Statute of the International Criminal Court detailing crimes within the jurisdiction of the Court  

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structuring political contest in Kenya. More than that even, the ICC cases seem to represent an attempt by the international community and their local allies to both bypass and replace local politico-legal processes with a system that fails to take into account the reality of political competition in Kenya and the context in which it emerges. Second, while the reform movement claims the right to challenge, both morally and politically, the legitimacy of a state that does not, in its eyes, protect or advance human rights and the rule of law, the stance it takes, as evidenced both in the Constitution of Kenya, and in public and private musings and proclamations of members of the reform movement, itself brooks no challenge. Civil society and the reform movement have used the constitution making process, and the ideals of human rights and the rule of law that underpin it, to carve out a moral high-ground from where they claim to represent the legitimate interests of “the people” and be the legitimate heirs of a government power to intervene in and manage the development of society. It is the fact that reform unfolded as a legal practice that has allowed it, over time, to divorce itself from “politics” and indeed to divorce “law” from “politics” as a way of attempting to ensure that the goals of the reform project became a reality. The constitution needs to be “implemented” primarily to ensure that “politicians” do not derail the process of reconstituting the Kenyan state around creating a new “social contract” between “the people” as sovereign and their government. The process of “implementation” has come to focus on the Judiciary because of its idealized role in a liberal democracy as the protector of individual rights and as a check on the powers of the Legislature and the Executive. In this role, the Judiciary is the vehicle of the ambitions of a reform movement aiming to reconstitute the Kenyan state around the sovereignty of “the people” and the protection of liberal rights. I argue, however, that the result of this transformation – which has occurred over the last twenty years – is that reform as a practice, now increasingly focused on using “law” to insulate itself from “politics”, no longer works to create a space where the question of how to constitute the Kenyan state is opened up to competition. Instead, reform is focused solely on questions of power – who has it, what they’re doing with it, and how to acquire it – but power divorced from the political question around which that power is manifested. Reform, therefore, is no longer able to actually bring its influence

 

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to bear on social, economic, and political issues. Rather, reform has become a mechanism through which the very “politics” it wishes to distance itself from, is reproduced as the raison d’être of the Kenyan state because this “politics” is understood to be the true source of (an often hidden) power.

 

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