The Power of Invoking

I just came back from Uganda and Kenya, two countries fighting two wars: one with the odds against ‘getting to Denmark’ (to borrow a Fukuyama phrase), and the other with terrorism. I left Uganda as prosecutor Joan Kagezi, who was leading the prosecution of suspected Al Shabab terrorists, was shot dead. The murder was claimed by Al Shabab. I left Kenya at the end of the day that saw the murder of almost 150 students at the Garissa University by that same Al Shabab. On the one hand both states are dealing with a very acute and direct threat against their citizens and the legitimacy of government if it is not dealt with (which is probably one of the things the terrorist groups would like to see). At another level there is something much bigger going on: both countries are developing at a quick pace, requiring all manner of governance and culture changes. Kenya has one of the fastest growing economies of Africa. With this comes a desire that the fruits of that development are shared more evenly. Certain groups want more of a say, which upsets others who don’t want to loose some of their voice. It brings resistance because for some a way of life is under threat when they have to have a social security number and a bank account. Both countries have fresh memories of horrific violence and chaos. In short, as both countries develop, they face a lot of conflict that needs managing. What I saw in both countries is the importance of invoking.

Over tea, Kenya’s chief justice Willy Mutunga told me about his aim to anchor irrevocable change when his terms ends in two years. He wants to see strong institutions that rule, instead of capricious people. The 2010 constitution of Kenya is, on the whole, a very strong and progressive document. It anchors such institutions, divides power and has a lot of legitimacy. But it is only a piece of paper. It needs a few decades of being invoked because only then will habits change. We saw a good example of that recently. As part of its strategy against terrorism, the Kenya government put what many called a draconian security law before parliament last year. Amidst a stormy session of Parliament, which included throwing things at the Speaker, the law was adopted. After that however, the Constitution was invoked before the courts by a number of civil society groups. Objections were raised against the adoption process itself and the substance of certain provisions. Proponents of the law argued that the courts did not have jurisdiction and that no constitutional provisions had been breached. The courts concluded that they had jurisdiction and in a recent judgement in February, a constitutional panel ruled that some provisions where indeed unconstitutional. In Uganda, I discussed the anti-gay law that has caused so much controversy last year over a drink with the recently retired chief justice Benjamin Odoki. He too, referred to institutions and the constitution: we have a solid judiciary and a constitution with a clear anti-discrimination clause that can be invoked by citizens, he said. Although he did not say it, I read in his remark a sigh: perhaps donors can rely a little more on such processes and have more patience to let them take their course before reacting and withdrawing aid.

In the midst of all this I had diner with old friends. They live in the only house in Nairobi that is not surrounded by a two-meter high wall with razor wire on it and gate with big iron doors guarded by an armed askari. Over the course of many years we have talked about their lack of wall. Walls contribute, my friend explained to me, to the very same thing they are supposed to protect against: they create an ‘us’ and ‘them’. They isolate you from the community of which you are part. You don’t talk anymore. You can’t freely invoke. In a walled world, if your neighbour annoys you, you have three options. Firstly, you can knock on the iron gate and hope he opens and is willing to talk to you in a neutral space about your annoyance. But he may not open. Secondly, you can wait, and hope to catch him ‘by chance’ as he drives out of the iron gate. But he may choose to stay in his blinded 4×4 and leave you standing there. Or, you can scale the walls, blow up the gate, and make it clear in that way that you are annoyed about something.

Good principles to invoke, space to invoke them in, and effective procedures through which that invoking can take place are critical for healthy societies. That is what I clearly saw in Kenya and Uganda.