Interview

Gibson Kamau Kuria:t

The Rule of Law in Kenya and
the Status of Human Rights
GibsonKamau Kuria currentlylives in the United States as apoliticalexile
from his homeland, Kenya. Since the development of opposition to recent
changes in Kenya's constitutionalandpoliticalsystems, Mr. Kamau Kuriahas
turned his skills as a lawyer to representing those individuals designated as
dissidents by Kenya's government and who consequently have been charged
with sedition, detained without trial and sometimes tortured.
In February 1987, Mr. Kamau Kuria was detained by the government
without chargefor over nine months, during which time his captors tortured
him and threatenedhim with death. Undeterredby such forceful tactics, Mr.
Kamau Kuria resumed his defense of dissidents upon his releasefrom prison.
The harassmentof Gibson Kamau Kuria and other lawyers acting in defense
of human rights continued and in early July of 1990, Mr. Kamau Kuria
received word that the police awaited him at his home, his office, and in the
courts. He sought asylum in the American embassy and soon thereafter left
Kenya with his family.
Bornforty-three years ago in centralKenya, Gibson Kamau Kuria attended
Kenyan schools before entering the University of Dar-es-Salaam,Tanzania to
pursue undergraduatestudies in law. He did his post-graduatework in law at
Oxford University, returning to Kenya to teach law at the University of Nairo-
bi. While teaching, Mr. Kamau Kuriapublished articles on issues of constitu-
tional theory and the rule of law in Kenya.
Since 1976, Mr. Kamau Kuria also hasparticipatedactively in the debate
over the status of the Kenyan Constitution. Together with other Kenyan law-
yers, Mr. Kamau Kuria has continued to speak out against the passage of
various constitutional amendments that threaten to undermine the democratic
governmentestablishedat independence.After achieving independencein 1963,
Kenya was widely regardedas a successful nation, relatively stable, democratic
and prosperous with a good human rights record on a continent otherwise
racked with political turmoil in the post-colonialperiod. Kenya's first Presi-

t Gibson Kamau Kuria was, until recently, a practicing attorney and professor of constitutional law
at the University of Nairobi. He is a recipient of numerous awards in recognition of his contributions to
the pursuit of human rights in Kenya, including the Robert F. Kennedy Memorial Human Rights Award.
Mr. Kamau Kuria spent the fall semester of 1990 at Harvard Law School and is currently a Schell Fellow
at the Yale Law School. Regan E. Ralph, J.D., Yale Law School, 1991, interviewed Mr. Kamau Kuria
in Cambridge, Massachusetts on November 16, 1990. Special thanks are due to Soledad Bastiancich, Daniel
S. Ehrenberg, Lori Lynn Phillips, and Matthew L. Sperling of the Yale Journal of InternationalLaw for
their hours of assistance in the preparation of this interview.
Yale Journal of International Law Vol. 16:217, 1991

dent, Jomo Kenyatta, in 1969 outlawed the main oppositionpoliticalparty that

was socialistin orientation. With Kenyatta'sparty, the Kenya African People's
Union (KANU), in control, regularparliamentary elections were held until
Kenyatta's death in 1978.
Kenyatta was succeeded by his Vice-President, Daniel arap Moi, who
pledged fidelity to Kenyatta's principles. In 1982, the Kenyan legislature
passed a constitutional amendment that officially changed Kenya from a
multiparty to a single-party state and made KANU the sole legal political
party. Later that year, a coup attempt by disgruntled non-Kikuyu Air Force
officers was quickly and firmly suppressed by a shaken President Moi, who
soon aftermoved to consolidatehispower. Beginning in 1986, an underground
opposition group known as Mwakenya began a campaign of resistanceto the
Moi government. Moi's government responded by clamping down further on
dissentanddetainingandtorturingmany intellectualsand academics suspected
of involvement in Mwakenya.
In 1988, Moi moved to weaken the judiciary with a constitutional amend-
ment removing security of tenurefrom judges, as well asfrom members of the
Public Service Commission responsiblefor the appointment and discipline of
civil servants. Another amendmentpassed at that time increasedthe period in
which people detainedfor certain offenses might be held without access to a
lawyer, a doctor, orfamily memberfrom twenty-four hours to fourteen days.
Strong opposition to these amendments sprang from a variety of sources,
including PresidentMoi's fellow KANU party members. Charles Rubia and
Kenneth Matiba, both prominent KANU politicians, were arrested in the
summer of 1990for'theiroutspoken criticism of the government. Among other
things, they were callingfor the restoration of multiparty politics. Leading
members ofthe legal community were alsoharassed,such as Gitobu Imanyara,
the editorof the Nairobi Law Monthly, who was imprisonedby the government
in July 1990 on charges of sedition and technical violations of the media laws.
The politicalsituation in Kenya remains influx. In December 1990, President
Moi agreed to repeal the constitutional amendment that took away the tenure
ofjudges and some controversialelection rules, and to reinstate some ousted
K4NU members who were critical of the government. But he has continued
to detain other dissenters and to resist callsfor a return to multiparty
democracy.
Followingare Mr. Kamau Kuria's comments on thepoliticalstate ofKenya
today, the meaning ofMoi's presidencyand the concomitantshifts in the status
of the Kenyan Constitution, the observance of human rights in Kenya and the
future of the rule of law in Kenya.
Interview: Gibson Kamau Kuria

THE INTERVIEW

I. PERSONAL INVOLVEMENT WITH HUMAN RIGHTS IN KENYA

Beginning in 1976, I saw moves to undermine the Kenyan Constitution and

started writing articles to oppose the kind of totalitarianism that was being
imposed. In taking up cases representing dissidents, I was doing two things,
namely trying to prevent further erosion of the rule of law, and to put an end
to the government's disrespect for human rights. My representation of these
people acted as a kind of strategy for bringing about social change, although
I would say that, honestly, I didn't see it as a strategy. I saw this work gener-
ally as a way to check constitutional decay and to ensure that the government
respected the rule of law. Now I see that, as an academic and as a practicing
lawyer, my active support over the years for the rule of law did have a very
positive effect on the Kenyan people. As I learned when I was being interro-
gated prior to my detention, my work had interested many people and many
people were talking about me. I found that, because of the great interest taken
in my work by newspapers, many people knew me and indicated that I was
holding out hope for the country and that I should keep up my efforts.
Until the last four years, few people spoke out against the Moi regime. So,
from 1978 until fairly recently, I had been the lone cry in the wilderness. But
over time, the monster, taking the form of totalitarianism, became more and
more manifest. Now other groups have become more outspoken against the
government. So far, the Kenyan Bar Association has been the most outspoken
group.
At the time I left Kenya, I was engaged in two things. First, I was advising
the leaders advocating a multiparty system who had been detained, and,
second, I was trying to put a lid on the lawlessness which the state had en-
gaged in, beginning in the middle of June 1990. The government had been
acting as if there was a state of emergency. The government decided that the
Constitution was inconvenient to its operations and acted accordingly, although
the Constitution protects freedom of association, freedom of expression, the
right not to be discriminated against because of one's political opinions, and
also the right to protection of the law. The government was not going to permit
any debate on multiparty politics. Those supporting political pluralism would
be dealt with harshly. Our president ordered the police into action, and con-
stant harassment of lawyers began. The police placed three intelligence officers
outside of my office. On June 22, 1990, more intelligence officers were placed
outside another two lawyers' offices to ensure that there would be no further
consultation between leaders of the pro-democracy movement and their law-
yers, or even amongst the lawyers themselves.
Yale Journal of International Law Vol. 16:217, 1991
I joined the attempts to bring an end to the government's lawlessness by
filing a suit seeking an injunction to restrict intelligence police from illegally
occupying one of the lawyer's offices and to restrain them from interfering
with his law practice. One of the lawyers who was supposed to have argued
the case with me was arrested and detained without trial. I then filed an
application to have the person in charge of intelligence police in Nairobi
committed to jail for contempt of court for having arrested the lawyer, prevent-
ing him from going about his legal work. That action caused the government's
greatest annoyance with me. They started hunting for me at home and in my
office. I realized that I had pushed the government too far. Of course, in 1987
I had been detained without trial for nine and a half months, and I had been
threatened with death. But I continued with my work. My role in the opposi-
tion movement was such that, if I were to be removed, the government could
more easily pursue its repressive policies.

II. HUMAN RIGHTS IN KENYA: THE CURRENT POLITICAL SITUATION

By the time the crackdown came in June 1990, or even earlier, it was quite
clear that human rights consciousness had grown very much with the effect
of empowering ordinary people. President Moi found himself with a difficult
situation that made him violate the Constitution much more openly than he had
previously done. The police started going into lawyers' offices to prevent them
from giving legal advice. They started breaking up legal consultations, not
because the lawyers were committing any offense, but because of Moi's fear
of the law. Since Moi became president in 1978, he has treated the law as one
of the greatest obstacles to his acquiring power and retaining it for life.
When discussing Kenyan politics, one has to bear in mind two periods in
Kenya's constitutional history. Kenya started as a constitutional democracy in
1963, with a constitution based partly on American constitutional theory and
partly on British constitutional theory. Whilst many other countries in Africa
rejected Western democratic institutions, Kenya retained them, but at ihe same
time weakened them in pursuit of what was called a policy of African social-
ism. This was not real socialism; it was an attempt to establish a welfare state.
But it is a welfare state in which the government intervenes in the economy -
- owning banks, industries, even some farms. Desiring to intervene in the
economy, the government found certain constitutional checks and balances
unpalatable. In response, it introduced amendments to remove the federalism
from the original constitution, to replace a bicameral legislature with a single-
tier legislature, to relax the restrictions on the power of the legislature to
amend the Constitution, and also to relax the restrictions governing exercise
of emergency powers.
Interview: Gibson Kamau Kuria

I When Jomo Kenyatta was the president, the government position was that
the country had to be a democracy. Even with the initial amendments to the
Constitution, the government accepted the doctrinal separation of powers with
the independence of the judiciary and of the public service. The electoral
process worked very democratically and the market economy, or the mixed
economy, was doing very well. When, therefore, one is talking about prosperi-
ty in Kenya, one is talking about the period during which time Kenya lived
as a democracy and was respected as such, and received much support from
Western countries.
The second phase of Kenya's recent political history started in 1978 when
President Moi came to power. Daniel arap Moi was appointed Vice President
in 1966 by the late President Jomo Kenyatta because Kenyatta believed that
Moi was so incompetent amongst opposition politicians that he would pose no
threat to Kenyatta. In other words, he was seen not to have ambitions that
would make Kenyatta anxious. He had formerly belonged to another opposition
party, but the stronger leaders of that party were not given the post.
It is also important that, at the time Moi became president in 1978, many
other African governments were changing through coups d'etat. As Kenyans,
we were determined to succeed in following' our Constitution. Moi realized
this and said that he would follow in the footsteps of the late president. But
Moi is a person who cannot live up to constitutional standards. He cannot face
competition, either in politics or in economics. Yet, he found a constitution
that embodied these high values. His first task was to acquire power and, to
do so, he had to manipulate democratic institutions. He first removed senior
officers who held constitutional offices. Next, he acted to ensure that there
were no factions that could offer political resistance to him. Then, because he
found that these manipulations were not going far enough, Moi introduced
legislation to weaken further democratic institutions. Soon he found that he
could not make even that legislation work, so he had to suspend the Constitu-
tion in fact. One therefore sees that, between 1978 and 1982, Moi's political
competition was limited to the governing political party, KANU. In 1982, a
constitutional amendment outlawed political competition by making the country
a one-party state.
From 1982 to 1987, political participation was further undermined. The
KANU party recommended outlawing the secret ballot method of nominations.
In 1986, a constitutional amendment took away the Attorney-General's security
of tenure. In 1988, a constitutional amendment was passed to take away the
independence of civil servants. Then, in 1990, when there was a call for a
return to the multiparty democracy system, Moi detained leaders of the move-
ment and placed intelligence officers at their homes. We have had judges who
asserted their independence and who were then forced to resign.
Yale Journal of International Law Vol. 16:217, 1991
At this time, the economic prosperity began to decline. Disinvestment had
already occurred and intervention in the economy began to take place. For
instance, in some public companies, the boards of directors were removed by
Moi without legal authority and were replaced by public officers. We are
talking about a country whose economy has been doing very badly. We have
a situation where, increasingly, the incentive of the farmer and the business-
man is being killed by the big government. There is a great level of discontent
due to the deterioration of the economy and to the increase in oppression. The
one-party system has become oppressive, and the people are impatient with
it. In Kenya, as in other African countries, people now have proof that the
model of the one-party state does not work, and the sooner it goes, the better.
The majority of Kenyans, having seen the multiparty system and the
Kenyatta administration at work, support multiparty politics. Even people who
are not very well-informed can tell that the situation has become very bad
during the Moi administration. The ordinary person's sentiment is reflected
in a song that was composed following the demolition of some urban slums.
The musician said that the reason that eight lives were lost in the demolition
was because there was no political party which could speak up for these poor
people. When I was in rural areas and in Nairobi, the people told me that they
were waiting for the registration of the next party. They would register in great
numbers because they were fed up with having KANU as the sole party.
The weight of this one party is felt by everybody. For the first time in
Kenyan history, a peasant farmer growing coffee is embarrassed by the fact
that she cannot make ends meet. Coffee is grown, but the proceeds of sale are
withheld and not released. Then there is a very burdensome and illegal system
of taxation based on allegedly voluntary contributions to charitable causes.
Instead of the government financing schools and other things, it claims that
it is asking the people to contribute voluntarily to support these services by
charging them a fee to send their children to school.
Even though Moi claims that the one-party state is the only way to avoid
ethnic violence, his policies work to exacerbate ethnic tension. Moi promotes
his own people to the exclusion of others in the areas of government and
politics. He knows that when we had multiparty politics there was no violence
of this kind and the political parties were not formed along ethnic lines. Moi's
own party was conservative and had support from many ethnic groups. But
now he tries to create ethnic divisions as a means of consolidating his own
power.
Moi also uses a racist argument to support his ideology of the single-party
state. He wants to suggest to outsiders that the black person is different from
other human beings, that there is a passion evoked by the fact of belonging
to an ethnic group. Other humans do not have that kind of passion in places
that have a multiparty system. He alludes to the time when anthropologists
Interview: Gibson Kamau Kuria

used to see people from Africa as being different. Moi says that we are such
a complicated species of human beings that outsiders cannot understand us.
Multiparty politics is good for Westerners, but it is not good for us. In fact,
when he was in the opposition, Moi said that Kenya was not ready for indepen-
dence. It is really the same argument that he is trying to get across, the view
that the African does not have a strong make-up.
Following politicalriots in Nairobi in July 1990, and at the same time that
it was cracking down on dissidents, Kenya's ruling party sent representatives
throughoutthe country to interviewpeople, allegedly to find out what kind of
political change people wanted, and with the stated intent of adopting those
changes into the political system.'
The intention of the government in inviting recommendations from the
Kenyan people after the suppression of democracy supporters was not to
introduce political reforms. Rather, the intent was to lie to the international
community by showing that Moi's government was taking part in the global
movement toward democracy. This undertaking was also intended to ease the
pressure on the government from within by creating an expectation that it was
now prepared to give in to the will of the people. I say this because in August
and September of 1989, the government indicated that it was not going to
permit any changes. But outside influence could help force change in Kenya.
This is the kind of pressure that I have been urging abroad.

III. HUMAN RIGHTS AND FoREIGN RELATIONS

Donor countries could apply economic sanctions against Kenya because of

Moi's appalling human rights record.2 When President Moi and his chairman
say that they are going to punish all those calling for changes in the Constitu-
tion, they express their determination to hold on to power. On November 6,
1990, Moi declared that he had ordered the Attorney-General to draw up
legislation to restore tenure to judges and to the offices of the Attorney-General
and the Comptroller-General. He was then responding to world attention, not
to the recommendations the people made to the review committee. The tenure
of judges was suspended in 1988 by a Moi-sponsored constitutional amend-
ment, the tenure of the Attorney-General in 1986, and that of the Comptroller-
General in 1988. Moi also said that the other submissions they made were
being considered, and other changes might come. I think what must have
happened is that he had clear signals that aid which makes him accountable

1. These and the following italicized comments are included by the interviewerfor informational
purposes. They are not the comments of Mr. Kamau Kuria.
2. Forexample, Kenya lost $20 million in aidfrom Norway when PresidentMoi cut diplomatic ties
in October 1990 over a dispute concerninga Kenyan exile arrestedon charges of treason.
Yale Journal of International Law Vol. 16:217, 1991
would disappear if he failed to introduce reforms. If changes are introduced,
it would be because of that kind of pressure.
But, for Moi, time has run out for introducing changes. Before the recent
crackdown on multiparty proponents, the call was that reforms be introduced,
that the Parliament be asked to repeal all of the unconstitutional amendments,
that a multiparty system be restored, and that there be fair elections supervised
by an independent body. Following the crackdown, some people were de-
tained, others were killed, and there has been general persecution and intimi-
dation of people. Moi has deprived himself of the capacity and the moral
authority to rule. To many people, he is a murderer. He cannot be trusted to
pursue reforms now.
Where sanctions have been applied against a particular country, it has been
in enforcement of both a moral position and international obligation. The
United Nations, of which Kenya is a member, has in the preamble of its
Charter the commitment to support and further the universal observance of
human rights. So far, only the United States has legislation like the Foreign
Assistance Act that seeks to promote human rights by prohibiting assistance
to countries that are involved in gross violations of human rights. If one were
to decide not to give aid to somebody who is not honoring international obliga-
tions, that is eminently reasonable. I would even consider that one would be
morally wrong to give aid to a member who is violating his moral obligations
in the international community.
By accepting international standards, a country accepts that the area
covered by the standards is not protected from scrutiny under a theory of
sovereign immunity from foreign interference in domestic affairs. A country
must live within international norms. The question of interference with internal
affairs does not arise because the obligations are like contracts. Once one has
an obligation, you cannot go to inquire into the motive with which you are
implementing the contract. If Kenya accepts a contract for aid that stipulates
among its terms that aid is contingent upon compliance with human rights
standards, it also accepts those terms of the contract.
The expression "neocolonialism" is often misused, just like the expressions
"freedom of contract" or "consent." We have two types of consent or freedom.
One is consent that is free of constraints. But there are concerns that go with
the constraints that aren't invalid. For instance, a bank is entitled to impose
very stringent conditions upon its lending, although the customers of the bank
are not in an equal relationship. That is taken to be consent. We can apply this
analogy to international relations, even as they apply to the new nations. If a
government is properly elected by a people -- dictatorships don't have authority
over the governed in the conduct of foreign relations -- it can enter into certain
international obligations or contracts on behalf of the governed.
Interview: Gibson Kamau Kuria

The element of neocolonialism sometimes seems to suggest that the new

state is being overpowered or dominated, but it is within its freedom to choose
the kind of undertaldngs into which it wants to enter relations with other
nations. Once you have signed acceptance of a contract with a bank, it won't
help you to come and argue that the bargain is unconscionable. Similarly, if
wealthy nations make contracts that protect their interests better than the new
nations, the new nations have only themselves to blame. One could also take
an example from the law of wills, where there is the idea of coercion. If you
have a person who is able to talk nicely, to flatter, to influence a person to get
a new will in his favor, the court will say that the will is still valid. We do not
worry about this behavior.
The colonial bitterness is exercising too great an influence both with the
wealthy nations and with the newly independent nations. It is inhibiting proper
development. As far as the younger nations are concerned, they are always
ready to shout "foul play!" The wealthy nations, however, are weighed down
with colonial guilt and say they don't want to be accused of wanting to contin-
ue colonialism.
Unfortunately, sanctions intended to effect Moi's regime may also have
negative consequences for the Kenyan people. Still, I do not consider such a
contract to be unconscionable. If, for instance, the U.S. forces Saddam Hus-
sein from Kuwait and removes his regime from power, is there a way of
avoiding the loss of innocent lives? I don't see it. We start with acceptance of
the fact that the removal of Saddam Hussein is necessary and, therefore,
innocent lives will be lost. The consideration is, then, how can we minimize
that loss. Using that analogy, if you want to reduce the power of an evil
regime, how can you do it without harming some innocent people? I simply
do not believe you can achieve the desirable result without any cost.
Assuming that you should reduce the suffering as much as possible even
when you cut aid, quite often you find that not much additional suffering
results because the regime is so corrupt that very little of that money reaches
the ordinary person in the first place. If, of course, you had a way of ensuring
that aid would only support the beneficiary and not support the oppressor, that
would be very good. But people are prepared to suffer in order to remove the
greater harm.
The United States Ambassador to Kenya, Smith Hempstone, has actively
supported the proponents ofpoliticalpluralism in Kenya. For example, in a
speech to the Rotary Club in Nairobi in May 1990, he emphasized to his
audience the sentiment in the United States Congress thatforeign aid likely
would continue only for those countries who diligently pursued democratic
ideals. PresidentMoi criticized Ambassador Hempstone for participatingin
Yale Journal of International Law Vol. 16:217, 1991
the multiparty debate and stated that he considers such behavior to be inap-
propriate interference with the operation of a sovereign state.
My understanding of U.S. foreign policy is that, over the last ten years,
the policy has been, particularly in Eastern European countries, to maintain
links with both the dissidents and the government. Ambassadors in those
countries used to meet with the groups from both sides. Now, to the extent
that Ambassador Hempstone is doing that, he is really doing what any other
ambassador does.
The passion with which the Kenyan government hates the American
ambassador is the same with which it hates Kenyan dissidents. If you look at
the dissidents, they are lawyers and churchmen, not people you traditionally
associate with radicalism. Now, Smith Hempstone happens to be a conservative
Republican. But, I feel that the common denominator between a conservative
Republican and political radicals in Kenya, including churchmen and lawyers,
is really common decency. The criticism that he is acting unfairly is not well-
founded, because there is no way he can do his job well without annoying the
Kenyan government.
The question might arise: has he really commented on internal policies?
I have not seen evidence that he was doing this. What excited the Kenyan
government in connection with the multiparty system debate and drew attention
to the ambassador was the fact that by sheer coincidence the day two former
cabinet ministers -- Rubia and Matiba -- announced their support for the
multiparty system was the very day Ambassador Hempstone was addressing
a Rotary Club meeting. All that he said was that the inclination of the U.S.
Congress is to give countries aid if they are respecting human rights, democra-
cy and political pluralism. He even went out of his way to indicate that he was
not telling Kenya what it should do. He was telling them what the Congress'
goals are. What is significant about the timing of that statement made May 2,
1990, is that between January 3, 1990 and May 2, 1990, the debate on whether
the multiparty system could be restored had been going on, and lawyers and
the clergy were participating in it actively in public. Before the debate com-
menced, I had published in the NairobiLaw Monthly an article on the subject.
We had been carrying on the debate even before the changes in Eastern Europe
came. But that's the time the debate came out into the open. The Kenyan
government got excited because up until the entry into the debate by the two
cabinet ministers, it appeared that the debate was being conducted by Moi's
traditional enemies -- the lawyers and the clergy. But the entry into the debate
of former cabinet ministers who had worked with Moi indicated a new phase
of the debate. I would say that criticism of either Ambassador Hempstone or
dissidents is really unfair because we are dealing with a government that does
not respect rationality.
Interview: Gibson Kamau Kuria

IV. KENYA'S POLITICAL FUTURE

I think there will be more demonstrations and maybe strikes continuing to

call for President Moi's resignation. There has been a call for Moi and his
government to resign in order to permit a democratic government to come into
being. In addition, people like the Attorney-General, the Chief Justice, and the
Commissioner of Police will have to resign. They have been so closely in-
volved in the undermining of the rule of law that their continuation in office
will make the situation more untenable. I doubt whether Moi can accept the
fact that he has lost power and that he should be content with retaining his life.
There are other, more frightening, possibilities for changing the govern-
ment. The lawyers in the opposition oppose violent changes of government
because they all are afraid of bloodshed. They just don't want to see it. They
would prefer to see the kind of change that took place in Czechoslovakia or
East Germany. But what they see is the possibility of Rumanian-style change,
if Moi continues the way he has been going. He has been acting like Ceauces-
cu, the executed leader of Rumania, by attacking people and getting the Chief
of Staff to say that the armed forces are ready to assist the police in suppress-
ing demonstrations. I can see an uprising of people, also saying that they will
pursue change, executing Moi and those in government. One can also see an
even worse situation in which great uncertainty and paralysis of the govern-
ment would lead some of the young military to try to give orders to the
government.
You probably have read that there is a movement called the Mwakenya.
Mwakenya was ostensibly a movement involved in the overthrow of the
government through violence. Unfortunately, the Mwakenya, which has been
spreading many leaflets in the country, has never painted a vivid picture or
an attractive picture of the kind of government it would establish. The group
operates in a clandestine manner and does not reach many people. Kenyans
remember too well the kind of human suffering that went with the struggle for
independence in the 1950s. It is partly because of their desire to avoid that
kind of bloodshed that they have given Moi too much time. Mwakenya has not
understood this aspect of the Kenyan psychology, that you need to prepare
people very well for combat in light of their experience.
One also could foresee, if this oppression continues for quite some time
and if Moi continued to receive support despite the oppression, that the
opposition groups might conclude that they find themselves without any
alternative and that there would have to be fighting. But as of now, violence
is not a serious proposition. I didn't hear of Mwakenya's alleged activities
except when the government tortured people and brought them to court to
plead guilty to the charge of being a member of an illegal movement. But since
Yale Journal of International Law Vol. 16:217, 1991
I was accused of being a member of Mwakenya prior to my detention, and this
was a lie, I don't attach truth to anything said by the Kenyan government
unless it is corroborated. Perhaps the bottom line would be to say that there
could be a number of people who belong to the movement because these
pamphlets do come to the country. At least outside Kenya, there must be
Mwakenya. But from within it is so small and so insignificant that one does
not really give any consideration to it when one is thinking of various options
available.

V. AFRICAN PoLiTics AND THE OAU

In July 1990, following a summit in Addis Ababa, the Organization of

African Unity (OAU) issued a declaration on "The Political and Socio-Eco-
nomic Situation in Africa and the Fundamental Changes Taking Place in the
World." The document recognized that a political environment that protects
human rights and observes the rule of law would be conducive to high stan-
dards of probity and accountability on the part ofpublic office holders, and
that popular-basedpolitical processes would ensure the involvement of all
people in development efforts. Although the declarationavowed its signers'
commitment to the process of democratization, it also affirmed the rights of
African nations to maintain sovereignty over their internal operations. Thus
the declaration standsfor the right of each nation to determine its system of
democracy on the basis of its social and cultural values and to take into
account the realities of its situation.
There are two tensions operating in African politics. One tension demands
that democracy, which has been conspicuously absent in most countries, be
restored. The opposing tension, advocating that the current authoritarianism
should remain, makes a show of making reforms. One can say that the first
part of the OAU declaration manifests the dream OAU has been holding out -
- the dream of a united Africa, a democratic Africa. Therefore, at the level
of a dream it is quite good, but on a practical level there is only one way in
which one can say that the OAU has been helpful, that is in assisting in the
solution of disputes between some states. For instance, Kenya and Somalia had
a border problem. Somalia claimed a big chunk of Kenya as its territory
because it was inhabited by people of Somalian descent who are now Kenyans.
There were discussions between Kenya and Somalia and an agreement was
signed. From then on tensions eased. So there have been situations in which
the OAU has provided a forum where nations can meet and reach an under-
standing.
Then one can say that the adoption of the African Charter on Human
Rights is again a part of the dream. However, one does not see much else that
Interview: Gibson Kamau Kuria

has been done. One cannot foresee much else that is likely to be achieved in
the near future in support of democracy.
One way of looking at the OAU is that in the meeting place people find
themselves. They come with all their imperfections. What can be achieved is
largely determined by the thinking and the conditions in the place or places
where people come from. So, it won't be until there are many countries which
are democratic and which respect human rights in Africa that the OAU will
be able to exercise either moral influence or other kinds of influence. As of
now the majority of states are not democratic, and therefore democracy and
the respect for human rights has radicalism built into it. That kind of radical-
ism can only undermine the dictators who come to OAU meetings. Yet, if the
OAU members are to continue paying their dues, it is only on the understand-
ing that these dues will not be used to undermine them.
I see the first part of the OAU declaration as significant in that Africa as
a community is not going to be left behind by Latin America and Eastern
Europe in the quest for democratization. The majority of African countries
came to independence with constitutions that supported democracy and a kind
of mixed or market economy. But this happened at a time when it appeared
that socialism was winning the Cold War. Consequently, countries started
introducing a form of socialism -- African socialism. This happened in Mo-
zambique, Somalia, the Sudan, Libya, Algeria, Ghana, Guinea, Guinea-Bissau,
Gabon, everywhere. Then, in the 1970s, we saw even more radicalism in the
form of Marxism-Leninism in those countries. This was an expression in
Africa of the view that socialism was better placed than a market economy to
solve Africa's problems. That also went with the Stalinist view that to develop
very fast you need authoritarianism. So you saw authoritarianism followed by
coups d'etat or by single-party systems being made respectable. That's how
development took place. There is impatience with democratic systems because
in most new nations democratic governments were perceived as being ineffi-
cient; they don't move fast enough. Yet one sees now in Eastern Europe an
acceptance of the idea that authoritarianism does not permit economic develop-
ment and does not allow democracy. Africa must experience an identical
revolution.
So far we have seen the early signs of that revolution in the call for
multiparty politics. The World Bank and the IMF have also been trying to
encourage this through enforcing various lending conditions. For example,
Tanzania has taken a somewhat ambiguous position. Tanzania's former Presi-
dent Nyerere was the theoretician of the one-party state. Now he sees that
people should be allowed to participate in the political process -- that democra-
cy should be restored. But the regime there is reluctant to follow through on
this recognition because it knows that multiparty politics will lead to its losing
Yale Journal of International Law Vol. 16:217, 1991
power. Therefore, in Tanzania, although they are going gradually to a market
economy, they are reluctant to admit their mistakes. Zambia finally agreed to
allow multiparty politics. If you go to Zimbabwe, there Mugabe follows a
market economy, but the theory is that it is a socialist economy. There is an
absence of renunciation of authoritarianism in Africa and an absence of
admission of the fact that the big government has wreaked havoc.
Then there are other factors. Colonialism still causes problems. It has left
serious intellectual problems because it has led to scholarship reflected by the
kind of view, shared by Moi, that there is something peculiar about Africa,
that we as Africans do not accept common standards. We have regimes that
are prepared to oppose democratization and certain kinds of economic policies
on the grounds that they constitute recolonization of Africa. We must differen-
tiate between what can be said to be attempts to recolonize and protect certain
interests, and what constitutes democracy and efficient economic organization.
One therefore finds a solidarity of dictators. They say they are against Western
imperialism. The most important consideration is the demonstration of the
failure of the planned economy and its attendant political theory and institu-
tions.

VI. THE RULE OF LAW IN KENYA

I take it as given that certain institutions are essential to any democracy,

including the doctrine of separation of powers and the rule of law. There has
to be a bill of rights. One might, however, have different contents for a bill
of rights. For example, the people's right to bear arms is really a means of
removing dictators. I doubt whether coups d'etat could take place in Africa
if the right to bear arms appeared in constitutions and was respected. But the
constitutional failure in Kenya and presumably in other countries is explained
by, first of all, the failure of the writers of the Constitution to identify what
the basic structure of a people's democracy is in Africa. There are institutions
that should have been included but were not.
The second problem arose from the failure to understand pre-colonial
political thought. For instance, in most traditional legal systems in Kenya,
there was no distinction between civil and criminal cases. There were just
wrongs. The people with power held an open trial. There were more partici-
pants. Thepeople who were making the decision would even sometimes be
more than the twelve jurors. They used an institution that is analogous to that
of a jury. The jury or an analogous institution is an essential institution in a
constitutional democracy because it guards against the corruption of judges and
magistrates.
In Kenya, the only party in the parliament acts as though it represents
everybody and passes legislation and constitutional amendments the total effect
Interview: Gibson Kamau Kuria

of which is to justify oppression. To believe that the people would empower

the legislature to go and pass oppressive legislation is absurd.
At the time of independence, as I have been seeing during my study of
discussion around the Constitution, the constitutional makers and their advisors
were in a dialogue. At one stage the drafters of the Constitution were assisted
by Thurgood Marshall, one of the justices of the American Supreme Court.
Basically, the Kenya Constitution is in many ways like the American Constitu-
tion. But overall, the influence of the British Constitution is more dominant.
One paragraph of the Kenyan Constitutional Conference Reports of 1963 states
that Kenya has a constitution of its own. It is neither a federal constitution nor
a central government kind of constitution. This is the heart of the Constitution
that was agreed upon at independence.
This emphasis on the singularity of the Kenyan Constitution reflected lack
of clarity of thought because clearly it had to be decided whether you wanted
the legislature to have the power to amend the Constitution the way it wants,
as it has done. If that is not the case, it is really a question of going the way
the American system has gone, not copying everything within that structure,
but the general idea will be the same.
The second consideration was the position of colonial law. One can say
that there are three types of law operating in Kenya -- what you might call
English jurisprudence in that it is the kind of jurisprudence that you find
working in England today, and colonial jurisprudence in the sense that it was
the law of suppression. The third branch of the law is a kind of traditional law
or pre-colonial political thought. I think that an examination of political thought
would show that there are basic similarities between traditional and other forms
of societies. It is a question of adapting institutions, because we are dealing
with a situation where, following colonization, small groups which have lived
like big nations were put together. It was not possible to retain the pre-colonial
structures that existed.
In remaking the Kenyan Constitution today, it is really a question of, first
of all, correcting the errors which appeared in the original constitution, which,
simply stated, were twofold. First of all, I would say that the current crisis
in democracy in Kenya is really a reflection of the flawed constitutional theory
that was adopted at the time the Constitution was being written. The theorists
failed to draw from precolonial and colonial experience and also from the
experiences of other democracies. The second error is a kind of subtle racism
or intellectual bias that stills works in colonial theory. For instance, the
provision pertaining to the appointment of judges provides that those to be
appointed are people trained the way English people are trained. And what did
we have? Colonial judges and magistrates who are opposed to liberty. All those
Yale Journal of International Law Vol. 16:217, 1991
with useful experiences from working democracies should have been equally
eligible to serve as judges in the Kenyan system.
First we must correct these flaws in constitutional theory. Secondly, we
must overcome the other factors that worked against the coming of democracy.
The welfare state is an institution that goes with democracy. What was left
undecided was the sense of this welfare state. In the Kenyan situation, we have
had that welfare state run by a government that does not have checks and
balances.
One has to look at the need to popularize the constitutional order as much
as can be done. For instance, in the way this has occurred with human rights
issues. When you talk about human rights, you present what people see to be
just even if they are not sophisticated. Human rights are an expression of what
truth and justice should be all about.
There is a search for African democracy, African human rights, and other
African things. Even in China, authoritarians try to say that China has been
unique in some ways, and it can be said that supporters of dictators always try
to claim some kind of uniqueness which exempts them from other standards.
My temptation is to view with skepticism the endeavor to term international
standards as Western standards.
Then there were other hostile factors. There was the Cold War. In the Cold
War, Kenya was friendly to the West. Consequently, any law that the Kenyan
government made and explained as being designed to weaken the communists
was accepted by the West, although these laws actually had the effect of
restraining liberty or weakening democracy.
Another important obstacle to democracy must be faced squarely. Once we
go as far as accepting our international obligations, we shall not have gone
very far unless we address the issue of inequality. The issue that does arise
is whether the pursuit of a nation's economic interest is inconsistent with that
nation's obligations under international law. Britain and France, which colo-
nized Africa, saw the coming of independence for African nations as potential-
ly reducing their economic opportunities. So they were keen to support dictato-
rial regimes that were able to meet their economic needs. Are we condemned
to a situation where pursuit of national interest must lead to support of dicta-
tors, or are we prepared to apply to the political sphere the idea we try to
apply in economics? Economists say let's have a free market in the whole
world. But it looks like we don't want a free market in ideas and democracy.
The nations of the world should understand that if they have recognized
human equality in the Universal Declaration of Human Rights, it is illogical
and inconsistent for them not to extend that equality to the economic sphere.
If that inconsistency is removed, then you will want to cooperate with other
people on the basis of equality. Ethics have everything to do with our conduct
of international business. Of course, this is a revolutionary idea. But it follows
Interview: Gibson Kamau Kuria

from the acceptance of equality. Just like when we remove corruption from
the political system, we raise our moral standards. That must happen in the
international arena. Otherwise, we are encouraging the development of a split
personality: one is moral in the conduct of life within the country, but hypo-
critical in dealing with other countries.
It is optimistic to believe that because logic is on your side you will win
the battle, but at the same time I appreciate the pessimistic lessons of history
and historical experience. But what history also indicates is that we have gone
through periods of great success when democracy spreads and then dictators
stop the progress. But even when dictatorship or authoritarianism comes, it
is followed by positive change. So that, qualitatively, the human condition has
been improving. One can see life as a perpetual competition between good and
evil. There will be periods during which evil dominates, and that is the time
of authoritarianism and persecution. But evil has self-destructive qualities.
Good can bring complacency and it is in complacency that evil sows its seed.
The development of human rights law is a movement toward raising
standards. What explains the fact of people rising up against their dictators?
Before the 1960s the uprising was against white colonialism. Following
independence, people did not find liberty brought by fellow black people; it
was really oppression. We are now going to move into an era of international
humanity.
I look at the problem of reconciling theory and practice from two perspec-
tives. First, taking the issue from a pragmatic view, the concern over whether
government practice lives up to the standards of constitutional theory is not
likely to be addressed in Kenya until we have a situation with many political
parties, where a lawyer can go about his business without being intimidated.
The way in which some of these concerns may be addressed is in devising a
mixed economy. The problem of the constitutional theorist is having a strong
economy, but with more egalitarianism than one sees in America. On has to
accept that this is a serious issue. But if one looks at the works of people like
Ronald Dworkin and others such as Robert Nozick and Michael Sandel, the
debate is still going on. The opportunities for trying to experiment with
something else still exist.
I think there is a need for lowered expectations, in a sense, because one
cannot study political theory and not fail to appreciate the difficulty there is
in devising a very good constitution. That is sufficient reason not to introduce
utopianism. On the other hand, there must be sufficient utopianism to make
you believe that the present situation can be reformed.