AUDIT OF MEDIATION PROCESS

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• Publié par: Muchang
• Nombre de lectures: 14
• Langue: English

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AUDIT OF MEDIATION PROCESS

Last week, parties meeting under the Kenya National Dialogue and Reconciliation

initiative through the mediation of the Panel of African Eminent Personalities led

by HE Kofi Annan, agreed on a four-point agenda and began discussions on how

to resolve the political crisis in the country. The agreements reached so far are

commendable, and the speed with which a resolution is sought

praiseworthy.Kenyans for Peace with Truth and Justice, a consortium of human

rights and governance organisations, commends all the parties involved for the

positive steps taken so far and pledge to provide oversight over the mediation

process and its expected outcomes.

I. Structure

The parties to the dialogue are listed as the Government of Kenya/Party of

National Unity on the one hand and the Orange Democratic Movement on the

other. If the process is to be national, it must surely involve more that\n just the

two actors. Therer is need to decide if the dialogue is national or bipartisan

because this distinction dictates the agenda of the discussions.

The dispute over the presidential election has opened more conflicts around many

other cleaveges besides the contest for political power. There are now ethnic

conflicts arising out of competition for resources, which in turn feed on class and

generational tensions.

As it stands, the mediation process disenfranchises the people of Kenya, who are

the most important party to the dialogue. The two protagonists at the table today

were the candidates in the December 2007 General Election. Those who voted for

them are not necessarily their supporters. A vote is an expression of confidence

for a limited purpose – not a carte blanche for all manner of issues. It is important

to appreciate that in the public eye, a great deal has changed – in terms of

perception and standing of the parties now in negotiation and their leaders.

Even as many leaders worry about the loss of control over the country's

population, there is need to acknowledge that perhaps they never controlled them

in the first place. The dialogue assumes that the agreement the parties to the

dialogue reach will be acceptable to all the protagonists. That assumption is

tenuous in the extreme.

The Kenya National Dialogue and Reconciliation initiative is enticing because of

its promise to restore the right of the voter after disenfranchisment in December

2007. It cannot become a front for boardroom deals made without the people's

participation or consideration of their interest.

There is need to recognise that there are other important actors who are not at the

negotiating table. Violent actors can escalate their actions if they feel that they are

not getting a fair deal, but who is speaking for the internally displaced persons –

in Rift Valley, in Central , Nairobi, Nyanza, Western provinces at these talks?

Who is speaking for the dead and the bereaved? Who is speaking for the people

who have lost property?

Kenyans are emerging from numerous experiences of failed public involvement in

socio-political processes. The search for solutions to the current crisis cannot

exclude them again and hope to succeed. The Kenyan people must own the

platform for this discourse.

Recommdations

1. There is need for both national as well as political dialogue between parties.

2. Political parties can narow their agenda to deal with issues that concern them

alone, such as resolving the dispute over the disputed presidential election and

power-sharing arrangements.

3. Another process that enjoys broader national ownership can deliberate on the

wider issues that affect the whole Kenyan society.

4. A bi-partisan parliamentary select committee can approximate representation of

the people and still be hold brief for political parties in national dialogue.

II. Accountability

Notwithstanding the public and international support for the Kenya National Dialogue

and Reconciliation initiative, it is still informal and arbitrary. It is not clear to whom the

process is accountable to, nor a body or individual who would sanction it for failing to

perform its role. It is not apparent, either, if the agreements reached have any force in

local or internationl law because it is not clear where such agreements must be deposited.

This creates problems with enforcement.

Recommendations

1. Parliament can use a bi-partisan approach to entrench the process and permit for

the laying of agreements before it for admission into the legal process.

2. International bodies like the Inter-Governmental Authority on Development, the

African Union and the United Nations can provide for the mediation so that it

does not operate in a legal lacuna.

III. Code of Conduct

Recent events surrounding the mediation process point to gaps in the rules binding parties

to the dialogue to conduct themselves only in a manner that builds confidence, cultivates

good faith and imposes obligations.

It is unlcear if attendance of the dialogue is mandatory or only voluntary, and whether or

not there are sanctions for breach.

It is important for the mediation require that parties build and cultivate goodwill in the

process.

Recommendations

1. Statements that give a categorical position on issues before the mediation team

undermine the dialogue and should be forbidden, with sanctions when they are

issued.

2. There is need to consider 'gag' rules for individuals to the dialogue so that they do

not contradict the process or argue their points of view to mobilise support or

undermine other protagonists.

3. Sanctions must be imposed for protagonists that only seek to filibuster the

dialogue, for example, through the rejection of mediators without justifiable

cause.

4. Injunctions must also be made discouraging actors and protagonists from direct

contact with mediators, such as was reported in the case of Mr Cyril Ramaphosa

recently.

5. Injunctions must also be made on the police to act only in the prescribed manner,

as well as the media.

IV. Content

a. Principles of mediation

The Kenya National Dialogue and Reconciliation initiative rightly states its goals as

finding a sustainable peace, justice and stability through the rule of law and human rights.

We note that the pillars of constitutionalism are:

1. Human Rights and the Rule of Law

2. Justice – for the victims and the perpetrators, and

3. Democracy

It is important that the ongoing dialogue does not lose sight of the fact that lack of

electoral justice is at the core of the crisis in Kenya. As a result of this deficiency, the

rights to life, movement, assembly and property have been abrogated, negotiated or even

abdriged.

b. Context

The agenda that has been agreed on is constructed without regard to the context in which

the dialogue is being held. It attempts to conflate governance, policy and socio-cultural

issues in one heap without seeming to appreciate the uniqueness of each and how it

contributes to the current crisis.

Essentially, Kenya's crisis results from bad governance. The other issues are a

consequence of the foregoing, evident in:

1. constitutional failure

2. corruption – including political correuption, and

3. ethnicisation of politics

Attempts to tackle Kenya's crisis need to establish who is repsonsible for the governance

crisis in whose grip the country is held. Our view is that the current leadership would take

a large share of the responsibility, but their conduct is not on the agenda of the dialogue.

c. Cessation of violence

One of the assumptions of the dialogue, and the quick agreement to end violence by the

parties negotiating is that the actors have the ability to stop it at a go. Violence has

evolved from the spontaneous post-election protests to militia action, vigilante

entrenchment and general bandityr and crime.

The political dispute was a trigger of the violence, but it is no longer its driver. The form

it is taking today – turning into banditry and generalised crime – is likely to be

exacerbated by the current economic crisis. Violence has overtaken the mediation

process. Parties to the dialogue need to be honest and must acknowledge that the State

does not have the capacity to deal with violence on this scale. Responses that are crafted

must recognise that resolving the violence is no longer just political.

Solutions to violence are most likely in the package of reforms, such as creating social

safety nets and enhancing police capacity, the dialogue proposes should take place in the

space of a year.

d. Internally Displaced Persons

A great deal of premium is being placed on internally displaced persons returning to their

homes. We consider this suggestion/ course of action impracticable, inconsiderate and

risky.

It is callous to compel people to live in places where they feel insecure, yet provide no

guarantee for their security. Such a decision/ action is fraught with risk as there is a

possiblity of a relapse that would expose returned IDPs to further violence or fatal harm.

Proposals for the settlement of IDPs on alternative sites must also assess the risk

mentioned above.

IDPs should be encouraged to return to their homes and to rebuild their lives, but they

must do so voluntarily. No one should determine for them what is and is not safe. In

many instances, the return of IDPs depends on the resolution of disputes that caused their

eviction and flight in the first place. In the event that the dialogue foresees this as a long-

term goal, sufficient financial and other resources must be set aside to enable IDPs to

enjoy their full rights as Kenyans in the intervening period.

e. Capacity to enforce decisions

Many of the commitments that the parties to the dialogue have agreed to might not be

enforced because of lack of capacity. There is need to bolster capacity by thinking

outside the box by securing local and international help.

f. Justice agenda

The dialogue recognises that gross violations of human rights must be investigated and

prosecuted, with the guilty being punished. There is no mention of restorative justice for

the victims. This must be addressed if the revenge cycle is to be broken.

In the course of investigations and prosecutions, it is important to ensure impartial,

effective and expeditious action. Independent investigations must mean those that do not

involve the Government as its agents are accused of perpetrating some of the rights

abuses. There are international opportunities for credible investigations through the

International Criminal Court, the UN Special Rapporteurs as well as special joint national

commissions.

Any immediate steps must be based on the consensus that actors are trustworthy.

g. Constitutional review

Some of the long-term recommendations depend on a reconfiguration of the State. There

is need to divide constitution and legal reform into short-term and medium-term. The

mediation process must identify non-actors who can assist those in the dialogue to

achieve these goals. Parliament is an example.