Revisiting Kenya’s defunct Building Bridges Initiative: Quest for justice, or manipulation of collective memory for political expediency?

Abstract

Contemporary scholarship overwhelmingly suggests that political elites cannot be trusted to initiate and lead reconciliation processes, for various reasons such as the manipulation of collective memory for political expediency. Accordingly, this paper posits, Kenya’s now-defunct Building Bridges Initiative (BBI), the product of a 2018 political truce (“handshake”) between arch-rivals—former President Uhuru Kenyatta and opposition leader Raila Odinga—ought to be critically reassessed. Although it was presented to Kenyans as an instrument for building lasting unity, giving the impression that it would yield justice for, among others, victims of electoral violence, it may also have been motivated by succession politics. This study, therefore, employs a qualitative design anchored in focus group methodology to seek answers to the following two broad questions: 1) Did Kenyans at the grassroots consider the handshake and the resultant BBI appropriate justice mechanisms vis-à-vis the post-election violence of 2017? 2) How did the handshake and BBI affect collective memory of the 2017 post-election violence? It finds, partly, that the grassroots understanding of what constitutes justice for victims of post-election violence in Kenya largely differs from and even transcends the content of the BBI report; it is multifaceted and features, amongst other aspects, the need to first acknowledge the victims of Kenya’s post-election violence and a grassroots-oriented approach to conciliation, involving apologies and forgiveness deriving from face-to-face engagements between citizens and the police. Also, Kenyans remember the 2017 election cycle, and the atrocities thereof, vividly. The findings suggest that future conciliatory measures in the Kenyan scenario would have greater impact if they combined elements of transitional and rectificatory justice to ensure the restoration of the dignity of victims of atrocities.

Keywords:

• Building Bridges Initiative
• Kenyatta
• Odinga
• Ruto
• Collective memory
• Transitional Justice
• Post-election violence
• Rectificatory justice
• Kenya
• Power

1. Introduction

Can political elites be trusted to lead reconciliation processes? Contemporary scholarship overwhelmingly suggests otherwise: besides sabotaging or manipulating transitional justice initiatives, for example (see Granados, 2015; Höhn, 2010; Jebari, 2018; Tumarkin, 2011), political elites have also been known to engage in what has been referred to as the “shutting down” of “the memory of the collective populace … for political expediency” (Nora, 1989, as cited in; Muhoma & Nyairo, 2011, p. 413). Potent examples of elite chicanery in reconciliation and justice processes abound in Africa and elsewhere. One such case has been illuminated by Höhn (2010), whose study of Namibia highlights the dialectic between patriotism and international justice. The South West Africa People’s Organization (SWAPO) is highly esteemed by a considerable portion of citizens for liberating the country from the apartheid regime; however, it is thought to have violated human rights and disappeared many during the independence struggle. When a local NGO filed a case at The Hague against the SWAPO government, the move was seen and portrayed by the latter as betrayal to the cause of national unity. Covering the period 1975–2015, Granados (2015) discusses the plight of victims of political violence in Spain through a lens that questions the sincerity of politicians in peace making and transitional justice processes. While classifying victims into two groups (“victims of the Spanish Civil War and the dictatorship” and “victims of terrorism”), Granados argues that successive Spanish governments have failed to handle the two groups evenly and feels that “it is civil society—not politicians—which should lead the reconciliation process” (Granados, 2015, p. 58). Granados demonstrates, in a scenario similar to Namibia’s, the preference of Spanish leaders for a form of reconciliation that suppresses the truth, over “the [potential] resurgence of underlying hatreds, which would entail too high a risk” (Granados, 2015, p. 59). In times of transitional justice, he partly concludes, societies should seek the form of truth that prioritises victims’ rights as opposed to the views and influences of those that wield political power. Jebari’s (2018) discussion of transitional justice and “collective memory”¹ in the contexts of tyrannical repression in Morocco (1965–1992) and Algeria (1991–2002), shows that during transitional periods in Morocco (TJRC) and Algeria (amnesty), “[t]he political elite produced a new historical narrative of these periods to heal the population’s wounds by replacing a narrative of repressed memories, silence, and resentment with one of forgiveness and ‘moving on’” (p. 109). The strict stance of the two countries on who would be considered a “victim” (restricted to the imprisoned and the disappeared), he argues, has led to the neglect of the painful experiences of communities, thus hindering forgiveness, healing and national reconciliation. Accordingly, the “work [of the Moroccan truth and justice commission] helped the monarchy refurbish its image as a reformist and benevolent actor, especially after its prior legacy of violence” (Jebari, 2018, p. 110). On the other hand, Algeria offered “amnesty for Islamists and shield[ed] the army from scrutiny while denying civilian suffering” (Ibid., p. 114). Concerns over elite duplicity also typify Loyle’s (2018) assessment of Rwanda, which, he argues, depicts a scenario in which transitional justice is instrumentalised and used as a tool for meeting political objectives.

In the context of Kenya, my research domain, authorities, like most other governments in Africa and around the world, have for a long time exhibited their awareness of the power of collective memory. Following independence in 1963, for instance, the country’s founding father, Jomo Kenyatta, in an apparent bid to build a strong and united Kenya, suppressed the memory of the Mau Mau freedom fighters, attributing the armed struggle to all Kenyans. As argued by Lonsdale (1992),

[h]e knew, none better, the value of struggle. But as Kenya’s first president he could scarcely permit the pangs of its birth to be borne by one heroic minority, the Mau Mau fighters, alone. Kenya had to have a nationalist history that included all Kenyans. (p. 266)

The government of his successor, Moi, also engaged in activities that could be viewed as attempts to manipulate collective memory for political reasons. In 1993, for example,

[i]n what was widely presumed to be officially-sponsored harassment, an exhibition of photographs depicting victims of the [politically motivated 1992 ethnic] clashes—organized by [nobel laureate Wangari] Maathai at the UN’s Vienna conference on human rights—was stolen by a group of Maasai who had been taken to the conference by a minister as representatives of Kenya’s “indigenous” peoples. (Human Rights Watch , 1994, Kenya section, Human Rights Developments sub-section, para. 6)

The above scenario associated with the Moi government perfectly fits what has been described as “the imposition of silence tactic” (García de la Torre & Aramburo, 2011, as quoted in; Gomez, 2022, p. 380), often aimed at impeding the “develop[ment] of a variety of memory initiatives to claim human rights in the public sphere” (Gomez, 2022, p. 380).

Given the fact that society’s political elites often hijack conciliatory mechanisms and utilise them to meet their own selfish interests, this paper posits, Kenya’s now-defunct Building Bridges Initiative (BBI), the product of a political truce between arch-rivals—former President Uhuru Kenyatta and opposition leader Raila Odinga—ought to be critically reassessed. Although the BBI “ma[de] practical recommendations and reform proposals … [to] build lasting unity” (Presidential Taskforce on Building Bridges to Unity Advisory, 2019, p. 2) in Kenya, giving the impression that it would yield justice for, among others, victims of electoral violence, it may also have been motivated by succession politics. It is widely acknowledged in contemporary scholarship that reconciliation and justice go hand in hand; in fact, efforts at conciliation seldom succeed if they do not have some form of justice in mind (see Abu-Nimer, 2001; De Gruchy, 2002; Llewellyn & Philpott, 2014; Philpott, 2012). This paper therefore, objectively, subjectively, or a combination thereof, begins from the premise that the Kenyatta–Odinga truce was intended, in part, to be a justice mechanism—vis-à-vis the country’s 2017 post-election violence—whether or not the document it yielded contained a truth-, reparations-, and/or justice-component in relation to the egregious episode. Moreover, the paper contends, the BBI threatened to sweep everything concerning Kenya’s 2017 post-election violence under the rug and make the country forget about the traumatic experiences of its 2017 election cycle. Accordingly, the paper is driven by the following two objectives: i) to establish whether ordinary Kenyans considered the handshake and BBI appropriate justice mechanisms in relation to the post-election violence of 2017; and ii) to assess the relationship between the handshake and the resultant BBI and the collective memory of Kenya’s 2017 post-election violence.

The little scholarship available on the handshake and the resultant BBI, as will be demonstrated in the literature review section later, has employed methodologies that have largely omitted the voices of ordinary citizens at the grassroots level of Kenyan society. Indeed, attempts to engage the country’s masses have been almost non-existent. Studies on the handshake and BBI are largely the products of historical reviews and analyses of media reports; others are postpositivist in character, prioritising nominal data and descriptive statistics. Accordingly, grounded in the epistemological philosophical assumption, this study aims at addressing this apparent gap; under this assumption, “researchers try to get as close as possible to the participants being studied. Therefore, subjective evidence is assembled based on individual views. This is how knowledge is known—through the subjective experiences of people” (Creswell & Poth, 2018, p. 21). The paper is based on field research conducted throughout the month of May, 2021, which, incidentally, saw significant events associated with the BBI occur in Kenya. To begin with, the BBI Bill (Constitution of Kenya [Amendment] Bill, 2020) was passed in both the National Assembly (6 May 2021) and Senate (11 May 2021); notably, “President Uhuru Kenyatta and ODM [Orange Democratic Movement] leader Raila Odinga’s allies united in passing the document amid rejection by allies of Deputy President William [Ruto]” (Nyamori & Ng’etich, 2021, para. 4). However, a couple of days later, before President Kenyatta could assent to it and pave the way for a referendum within 90 days, the country’s Constitutional Court would declare the process “unconstitutional, null and void” (Kuria, 2021), bringing the BBI to a screeching halt. I seek answers to the following broad questions: 1) Did Kenyans at the grassroots consider the handshake and the resultant BBI appropriate justice mechanisms vis-à-vis the post-election violence of 2017? 2) How did the handshake and BBI affect the collective memory of the 2017 post-election violence?

The article proceeds as follows: first, it provides a background to the study, outlining the collective memory of the 2017 Kenyan general election season and the content of the BBI Report; second, it undertakes a review of literature on the handshake and the BBI; third, it outlines the research assumptions; fourth, it describes the research design and methodology of the study; fifth, it presents the study’s findings; and sixth, it discusses the findings before drawing its conclusions.

2. Background: prelude to, and immediate aftermath of, the Kenyatta—Odinga “handshake”

2.1. Collective memory of Kenya’s 2017 electioneering period

Following the nullification of the original 8 August contest by the country’s Supreme Court, an extremely fierce duel for state power, characterised by a repeat presidential election, was witnessed in Kenya. The state power contestation approaches and processes were dualistic in character, featuring the contribution of the ruling party, Kenyatta’s Jubilee, on one hand, and that of the opposition outfit, Odinga’s National Super Alliance (NASA), on the other. Three major traits characterised the Kenyan leader’s quest to retain state power during the country’s 2017 election cycle: i) excessive use of force by the country’s security forces; ii) intimidation; and iii) disregard for the rule of law. During its 2017 election cycle, Kenya witnessed excessive use of force by its security forces. The appetite for bloodshed, demonstrated by Kenya’s security forces, was of a nature unprecedented in its history. Rather than conventionally reacting to situations of protests by dissenting citizens, it appeared as if the government of Kenya was preparing to sacrifice its people even before the election itself was held. Indeed, “in many opposition areas Kenyan authorities deployed large numbers of paramilitary units: General Service Unit (GSU) police, Administration Police (AP), and units from Prisons, Kenya Wildlife Service and National Youth Service ahead of the polling” (Amnesty International & Human Rights Watch, 2017, p. 1). There also appears to have been an element of ethnic profiling, by the Kenyan authorities, for the government of Kenya’s “National Contingency Plan for the August elections refer[red] to ‘hotspots’ … where … [it was] assessed that violence was most likely. The hotspots were all opposition strongholds in ethnic majority Luo and Luhya areas” (Ibid., p. 2). The cruelty and savagery exhibited by the security forces was astounding for “police … conducted punitive raids into people’s homes as they pursued youths who had thrown rocks at them” (Ibid.). Moreover, for the first time in Kenya’s post-election violence history, they conducted “house-to-house searches” (Ibid.) and “infants and children [were] shot inside their homes” (Snurr, 2018, para. 18). Indeed, the electoral violence of 2017 will be remembered “for the killing of six-month-old Samantha Pendo in Kisumu … and [that of] nine-year-old Stephanie Moraa, who witnesses said was shot by police as she stood on the balcony of her home in Nairobi” (Human Rights Watch, 2019, p. 332). Ultimately, during this electioneering cycle, “[a]t least 67 people were shot or beaten to death by police nationwide, and hundreds more were injured during these operations” (Human Rights Watch, 2018, p. 319).

Also, the Kenyan authorities employed a lot of intimidation, to meet their objectives, following the August 2017 polls. In order to hamper “reporting on the violence and the gathering of evidence of human rights violations”, for instance, police “officers destroyed cameras and phones and threatened human rights defenders, hampering collection of evidence” (Amnesty International and Human Rights Watch, 2017, p. 2). Similarly, the country’s Non-Governmental Organizations Co-ordination Board, which is tasked with the responsibility of regulating and enabling the NGO sector in Kenya, engaged in what was widely seen as the bullying of civil society organisations. For instance, this state corporation “de-registered the Kenya Human Rights Commission (KHRC) for alleged tax evasion, illegal bank accounts and illegal hiring of expatriates” (Cherono, 2017b, para. 1). Soon thereafter, it would also order the “shut down” of another prominent NGO, the Centre for Open Governance (AfriCOG), on the premise that the latter was “operating illegally” for it was “not registered under the NGOs Coordination Act 1990 as required by law” (Cherono, 2017a, para. 2). Curiously, the county’s Supreme Court was unable to raise “a quorum to hear an urgent appeal to postpone the … [26 October 2017] repeat presidential elections” (The Associated Press, 2017, para. 1). Many Kenyans and pundits saw this irregularity as the result of the prior shooting and wounding of the Deputy Chief Justice Philomena Mwilu’s security guard-cum-driver by an “unknown gunman” (The Associated Press, 2017).

Following the 2017 polling cycle, President Kenyatta’s regime adopted a posture that showed little regard for constitutionalism and the rule of law. In what could be considered an attack on civil rights and liberties, as enshrined in the 2010 Constitution of Kenya, the country’s citizens were, on numerous occasions, denied the right of assembly. On Kenyatta’s inauguration day, for instance, the opposition had organised a parallel event, at Jacaranda Grounds in Nairobi, ostensibly to pay homage to its deceased enthusiasts, who lost their lives during clashes with the police during the 2017 election cycle. However, the security forces barricaded the venue and, thereafter, used teargas to disperse opposition supporters (Agutu, 2017). Likewise, upon his return from his Washington tour on 17 November 2017, following his withdrawal from Kenya’s repeat election, Odinga’s supporters were barred from meeting and welcoming him at the Jomo Kenyatta International Airport (JKIA). Police also used teargas to disperse those that had already gathered at the venue; what might have been a procession to the city centre, followed by an address to supporters, a phenomenon characteristic of Kenyan political behaviour, instead turned into running battles between citizens and police, with the latter blocking the former from accessing the city centre (Jazeera News, 2017). The media was not spared either; on 30 January 2018, the government of Kenya ordered the “shutdown of three major TV stations before the swearing-in of the Nasa [National Super Alliance] leader as the people’s president” (Agutu, 2018a, para. 6). The shutdown would persist for almost a week, despite court orders to the contrary (Agutu, 2018a). Accordingly, concerned authoritative entities, such as the Kenya Law Society, have continuously lamented what they consider to be a lack of respect for the Judiciary, and the negation of the rule of law, by the state.²

The Odinga side employed the following four elements in its quest for power: i) the creation of the National Resistance Movement; ii) the creation of the People’s Assembly; iii) secessionist calls; and iv) the Raila Odinga mock swearing-in. Upon the realisation that the repeat elections slated for 26 October 2017 might not yield different results, for the issues raised by the country’s Supreme Court had not been fully addressed, Odinga would boycott the polls and transform NASA into the National Resistance Movement. The National Resistance Movement’s main objective was to “defend [Kenya’s] democracy” (Apollo & Misiko, 2017, “No demos on election day” section, para. 9) through the following means: “[b]oycott of goods and services offered by businesses benefitting from the oppressive regime”; “[convening] people assembly to chart way forward”; and “[mobilising] movements to ensure that a free fair and credible election is organized within 90 days” (Ibid.). It is, perhaps, befitting that Dr. Martin Luther King Jr. mentioned Nairobi, Kenya, when referring to the parts of the world in which “the masses of people [we]re rising up”, in his very last speech, “I’ve Been to the Mountaintop”, which was delivered on 3 April 1968, at Mason Temple (Church of God in Christ Headquarters), in Memphis, Tennessee, for the National Resistance Movement concept appears to have borrowed heavily from it. In this speech, King sensitised black Memphians, about “the power of economic withdrawal”, calling for the snub of brands such as Coca-Cola, Sealtest milk, Wonder Bread, and Hart’s bread³; Odinga, on the other hand, would call for the boycott of products from the following companies, the majority of which Kenyan oligarchs who control the East African state (like Kenyatta himself) have a stake in: “Safaricom, the giant money-minting mobile telecommunications company; Brookside Dairies, the largest milk-producing company in East and Central Africa; and Bidco Industries, one of the leading edible oil products manufacturer in this part of the world” (Kahura, 2017, para. 1). Haco Tiger Brands, a leading fast-moving consumer goods manufacturer in East Africa, which is associated with billionaire (now deceased) Chris Kirubi, Kenyatta’s tribesmate and confidante, would also be added to this list shortly thereafter.⁴

In a press statement released on 7 November 2017, premised mainly on non-recognition of Kenya’s 26 October repeat polls, and a strong repudiation of Kenyatta’s second declaration as winner, NASA presented its motion for the creation of the People’s Assembly,⁵ which was supposed “to govern Kenya in place of Kenyatta” (Campbell, 2017). Whilst lamenting “the refusal by IEBC and the Jubilee Party to allow the people of Kenya to lend their sovereignty to a properly elected president through free, fair and credible elections”,⁶ it nonetheless revelled in the constitution’s foresight, reiterating that the document “provided that the people of Kenya have a right to exercise their sovereignty directly through elected representatives”.⁷ County Assemblies of the Republic of Kenya were thereafter “presented with a motion to create People’s Assembly through which the people of Kenya shall henceforth exercise their sovereignty up to and until the holding of proper elections in this country”.⁸ It would “comprise Governors and Deputy Governors; members of the Senate, National Assembly and County Assembly; religious, trade union and civil society leaders; and representatives of youth and women organizations”.⁹ Amongst the resolves of the People’s Assembly would be “a review of the Constitution of Kenya 2010 … to reform the structure of the Executive and Parliament and devolution … for the promotion of inclusivity, the welfare of the marginalized, the advancement of women and youth, the eradication of corruption and poverty and to secure social justice, equity and fairness”.¹⁰ Although the People’s Assembly’s activities increasingly waned in the wake of the “handshake”, it resonated well with a significant portion of Kenyans, and, by 12 January 2018, when Taita Taveta County passed it, approximately 20 of the 47 county assemblies across the country had ratified and adopted the motion.

Another aspect of state power pursuit that characterised Kenya following its substandard 2017 polls was the resurgence of calls for secession. Secessionist calls in Kenya are not a new phenomenon (see, for example, Kisiangani & Saida, 2012): in an article published in one of the country’s dailies, entitled “Kenya is a cruel marriage, it’s time we talk divorce”, NASA’s former Chief Strategist, David Ndii, ably outlines the historical trajectory of the desires by various Kenyan communities, including the Coastal peoples, the Somali, and the Luo, to “part company” with the East African nation, in its independence era, providing distinctive rationales for this shared predisposition (Ndii, 2016). Nevertheless, calls for fragmenting Kenya have never been more pronounced and multifaceted than they were in the aftermath of the 2017 polls. First, on 22 August 2017, NASA strategist Ndii, whilst invoking Article 20 of the African Charter on Human and Peoples’ Rights, drafted a petition seeking to split Kenya into two with the intent of filing it with the African Commission on Human and Peoples’ Rights in Banjul, the Gambia.¹¹ Second, in early November, 2017, at his office in Treasury Square, Mombasa Governor, Ali Hassan Joho, alongside his Kilifi counterpart, Amason Kingi, led a group of 12 MPs and four senators from the coastal region in voicing their desire “for secession of the region … [accusing] current and past regimes of oppressing locals” (Ahmed, 2017, paras. 1 and 2), stating further “that they would use all legal means, both local and international, to achieve their ambition” (Ibid., para. 4). Third, on 13 November 2017, Homa Bay MP, Peter Kaluma, prepared a draft bill for IEBC’s attention, “seeking the secession of all but seven of Kenya’s 47 counties to form the People’s Republic of Kenya” (Lang’at, 2017, para. 1). All this while, a map depicting the desired result, a split Kenya comprising the Central Republic of Kenya (Kenyatta’s perceived Kenya) and the People’s Republic of Kenya (Odinga’s perceived Kenya) was “widely circulat[ing] in the pro-secession websites” (Muga, 2017, para. 4).

The fourth state power pursuit methodology employed by the Odinga side was the swearing-in of the Kenyan opposition supremo as the “People’s President”, an act aimed at “[calling] into question the legitimacy of the de facto government, while at the same time [providing] alternative leadership both for the presidency and for the parliament” (Simmons, 2018, para. 3) according to Salim Lone, Odinga’s former spokesman. For the first time, even if Odinga’s venture was only symbolic, Kenya saw two personalities take the oath for president. Odinga’s swearing-in followed Kenyatta’s, which had occurred a couple of months earlier, on 28 November 2017, “amid protests” (Burke, 2017), with “three people reported killed as police [broke] up [an] opposition rally a few miles away from inauguration ceremony in Nairobi” (Ibid., para. 1). Attended by thousands of his enthusiasts, Odinga’s mock inauguration was held at Nairobi’s Uhuru Park, on 30 January 2018, and the oath was “administered by Ruaraka MP T. J. Kajwang and former Nairobi governor candidate Miguna Miguna” (Agutu, 2018b, para. 6). Prior to his symbolic oath, which was skipped by his NASA co-principals, Kalonzo, Mudavadi and Wetangula, Odinga had made a tour to the US in November 2017 where he met some congressional committee members with whom he held discussions to highlight “Kenya’s political situation with particular emphasis on threats to democracy, constitutionalism and rule of law” (Lang’at & Luvega, 2017, Stability section, para. 2). However, US and EU diplomats, particularly Bob Godec, the then US Ambassador to Kenya, continuously attempted to discourage Odinga, with some Western countries reportedly “[threatening] to withdraw the NASA leaders’ visas” (Onyango & Otieno, 2018, para. 29). Similar parallel and unorthodox swearings-in have been witnessed, recently, in Gambia and Uganda (see Kuo & Dahir, 2017; Oduor, 2016), and it would be interesting to see whether this trend will continue and take root in Africa amid what appears to be the re-emergence of autocracy, especially in the Great Lakes Region. Essentially, there was no formal regime change in Kenya, but the country was characterised by tremendous political upheaval as discussed above. It is this state of affairs that led to the Building Bridges Initiative (BBI)—the 9 March 2018 Kenyatta—Odinga truce, christened the “handshake”—which birthed the BBI Report, discussed below.

2.2. Inside the BBI Report

Entitled “Building Bridges to a United Kenya: From a Nation of Blood Ties to a Nation of Ideals”, the BBI Report was published on 23 October 2019, by a taskforce appointed by President Kenyatta on 31 May 2018. The report identified nine areas of concern, which Kenya must grapple with to attain the ever elusive unity it so desires: 1) lack of a national ethos; 2) responsibilities and rights; 3) ethic antagonism and competition; 4) divisive elections; 5) inclusivity; 6) shared prosperity; 7) corruption; 8) devolution; and 9) safety and security.

Chapter 1 of the report, dubbed “Notable issues that Kenyans must deal with”, discussed the following matters among others: the need for Kenyans to shun their habit of mobilising along ethnic lines, especially when competing for state power, and prioritise shared principles instead; the marginalisation of the youth and those living with disabilities; and a lack of trust by the country’s citizens in their leaders and institutions. Incidentally, this is the only part of the report that came close to mentioning the victims of the 2017 post-election violence. Even so, it neither referred to them explicitly nor exclusively. Rather, it generally stated as follows:

We have adopted a system of sweeping injustices under the carpet. Year after year, Kenyans suffer from many forms of abuse and injustice, including when they are carrying out their political rights during elections. They seek redress. […] The Taskforce recommends that the implementation of the recommendations of this report, many which are far-reaching, should include the interests and needs of the victims of historical injustices. (Presidential Taskforce on Building Bridges to Unity Advisory, 2019, p. 27)

Under the rubric of national ethos, covered in chapter 2, the report rued the absence of common beliefs, convictions and hopes amongst Kenyans, a situation—it contended—bars the country from fulfilling its enormous potential. It called for Kenyans to embrace cultural and religious differences, while demanding and appreciating the need for “excellence in leadership, in the civic practices of citizenship, and in … care and consideration of one another” (Ibid., p. 30). The report partly recommended “a major consultation, in the form of a national conference, of Kenyans of every age, class, ethnicity, belief, and philosophy with the aim to produce a vision of a unique Kenyan civilization 100 years from today” (Ibid., p. 31).

Concerning responsibilities and rights, the report’s third chapter acknowledged the sacrifices made by numerous Kenyan patriots, serving in various sectors such as the country’s defence forces, but nonetheless spoke of “deep concerns by many Kenyans that there are far too many who do not know what their responsibilities to the country are” (Ibid., p. 37). To address this concern, it recommended among other things, “continuous and widespread civic education on rights and responsibilities” and contended that “[c]ivic education should be prioritized in Government policies and initiatives, both nationally and in Counties” (Ibid., p. 40).

The fourth chapter of the report handled the issue of ethnic antagonism and competition. It asserted that Kenya had to handle its diversity carefully, lest it disintegrated, largely because of competition for state power. It attributed the origins of “ethnic division and manipulation as a tool … for governance” and the “winner-takes-all system” (Ibid., p. 44) to colonialism. As a way of addressing these problems, the report partly recommended that Kenya “should do away with a winner-take-all model for the Presidency and opt for a more consociational model that works best for ethnically divided societies” (Ibid., p. 45).

In the fifth chapter, dubbed “divisive elections”, an elaborate proposal for a change in the structure of government was outlined in response to the winner-takes-all system. The report recommended the adoption of “[a]n autochthonous national executive structure”, with the following features, among others: 1) “An Executive President … [who] will remain the Head of State and Government and the Commander-in-Chief … [and] be the central symbol of National Unity”; 2) retention of “the present two-term limit for the role of President”; 3) a “Deputy President” who “is the running mate to the President” and who “shall deputize the President”; and 4) a Prime Minister appointed by the President, the former of whom shall be “an elected Member of the National Assembly from a political party having a majority of members of the National Assembly or, if no political party has a majority, one who appears to have the support of a majority of MPs” (Ibid., p. 50).

Chapter 6 of the document talked about “inclusivity”. Whereas it acknowledged the diversity of the country’s “population in terms of race, ethnicity, culture, religion, and social and economic circumstances”, it stressed the need to “tap into that diversity, to allow different Kenyans from many backgrounds to contribute fully in … economic, social and cultural life” (Ibid., p. 57). Crucially, the BBI noted, Kenyans feel that connection to the Executive is the only way to “get access to the resources, jobs, and opportunities accessed through Government” (Ibid.). It recommended that “[e]mployment in the Public Service should reflect ethnic, religious, regional and cultural Face of Kenya and be free of corruption in recruitment” (Ibid., p. 60).

Chapter 7 discussed “shared prosperity”, which—it contended—had yet to be attained due to excessive “[u]nemployment and underemployment … particularly of the young people, extreme income inequality … [and] irrational incentives against innovation, growth and job creation” (Ibid., p. 63). Other impediments to the actualisation of shared prosperity, according to the report, included poor earnings by most of the county’s citizens, “and investment in Kenya being frustrated by persistent gatekeeping and rent-seeking by those in Government” (Ibid.). The BBI recommended, partly, that Kenya establish “an economy that is built on the principles and practices of value creation, and that rejects the extractive model as the primary mode of economic activity” (Ibid., p. 64). The country, it further explained, should seek to industrialise, get rid of cartels in the agricultural sector, and pursue regional integration/political federation to open up markets for its products.

Corruption was tackled in Chapter 8 of the BBI report, which contended that “[t]he growing public perception of Kenya having a rigged system that rewards cronyism and corruption, as opposed to the productive and hardworking, is the greatest risk to Kenya’s cohesion and security” (Ibid., p. 73). It recommended, partly, that measures should be taken to “[f]ree Kenya from cartel capture”, which has been associated with “divisive ethnic politics” (Ibid., p. 75). Also, public officials should not engage the government businesswise, and the latter’s services to Kenyans should be digitised to help curb crime.

Entitled “Devolution”, Chapter 9 of the BBI Report reminded Kenyans that one of the major objectives of the 2010 Constitution was to institute “a devolved system of government whose aim was to decentralize power and increase access to services across the country” (Ibid., p. 80). Whilst appreciating the successes of devolution, the report found that there was still plenty of room for improvement and recommended, amongst other things, an “[i]ncrease [of] the resources [allocated] to the Counties by at least 35% of the last audited accounts” (Ibid., p. 82). Importantly, the report further advocated, “[p]ublic resources should follow people not land mass” (Ibid., p. 83).

Last but not least, on “safety and security”, covered in the report’s tenth chapter, a range of reasons was provided as to why Kenyans do not feel secure. Crucially, the report noted that Kenyans have lost faith in the police. It argued further that Kenya is faced by unusual risks, “from irregular war to politically instigated civil strife and violence, violent extremism, organized crime, and secessionism” (Ibid., p. 88). Besides the need for “[a] people-owned National Security Strategy” (Ibid., p. 90), it partly recommended that Kenya “[s]trengthen[s] the performance and service orientation of the National Police Service and support[s] the mental health and wellness of officers” (Ibid., p. 91).

Importantly, in the recommendations of the taskforce, annexed to the report itself, the BBI proposed a few memory initiatives as follows: the “Ministry of Culture and Heritage should use public participation and expert input to codify an official pantheon of Kenyan heroes who reflect Kenya’s values and ethos, our fight for democracy and freedom, our aspirations, and our outstanding achievements. These heroes should be included in museum displays, curriculums and showcases” (Ibid., p. 101). The president was also advised to “commission an official history of Kenya whose production will be led by an Office of the Historian resident in the National Archives” (Ibid., p. 102). It was further recommended that the “history should go back 1000 years and provide an accurate and definitive account of the settlement of Kenya by the present inhabitants; the political, economic, and cultural heritage of all ethnic groups in Kenya; the role of women throughout history; [and] an account of the international slave trade and colonialism” (Ibid.). Evidently, though, these proposed memory initiatives had nothing to do with the post-election violence of 2017. Such was the nature of the content of the BBI Report. But what has been written on the handshake and the BBI Report?

3. Literature review

Scholarly work on the handshake and the resultant BBI is rather scanty, making a review of the literature somewhat challenging, but certainly magnifying the importance of such an exercise. There is a group of scholars that has assessed the validity and viability of the BBI (Katiti, 2020; Kimari et al., 2021; Moosa, 2018; Onguny, 2020; Wambua, 2019). Onguny’s (2020) evaluation of the BBI was one of extreme disapproval: he saw it as nothing more than President Kenyatta’s attempt at controlling the politics of his succession and argued that it was an exceptionally wobbly initiative for the state bureaucrats and fellow political elites Kenyatta was relying upon to fulfil his agenda could not be completely trusted. Onguny (2020) further raised the following concerns in his critique of the BBI: first, whereas its major objective was to reconfigure the country’s governance framework, particularly in regard to the upper echelons of power, the BBI was sold to Kenyans as the answer to eradicating poverty and inequality that foster the ethnic discord seen whenever Kenyans go to the polls. Second, since the constitutional adjustments it suggested needed a time-bound referendum (seen in the context of the then upcoming 2022 elections) in order to materialise, it was greatly rushed. Third, it was viewed suspiciously in various quarters largely because it did not originate from the masses but was a product of behind-the-scenes negotiations between the elite duo of Kenyatta and Odinga, who set its agenda. Fourth, the BBI presented nothing new for its spoke of what Kenyans were aware of; it merely reiterated previous commissions’ findings. Fifth, it did not clearly outline how it would “address rent-seeking behaviours of the elites, which are at the centre of political instability in the country” (Onguny, 2020, p. 572). And sixth, it was “unclear how the introduction of new executive posts, such as prime minister and leader of the opposition, w[ould] address the sponsorship of violence during elections” (Ibid.). With tremendous skepticism, he concluded that the BBI was “full of sound and fury signifying nothing” (Ibid.). Katiti’s (2020) assessment of the BBI was also founded on a pessimistic premise. She stressed the fact that throughout its independence era, Kenya’s successive governments have made numerous attempts to address historical injustices, epitomised by the formation of various commissions of inquiry, which have yielded many reports whose recommendations are seldom implemented. Against this backdrop, she argued, it was difficult to convince Kenyans that the scenario of the BBI report would be different. To be viable, in her opinion, the BBI would have to address the following issues: Kenya’s tribal politics; electoral malpractices; land injustices; youth unemployment; and various forms of marginalisation (including marginalisation on grounds of culture, gender, disability, age and level of education). And part of the solution to the implementation problem, in her view, would lie in the appointment of experts to guide and supervise the implementation process (Katiti, 2020). Speaking of marginalisation, Kimari et al. (2021) have argued that Kenyan youth were largely against the BBI, which most of them considered to be another manifestation of their continued ostracism in national politics. Importantly, they note, so profound was opposition to the BBI among this cohort that regional, ethnic, class, and gender differences were put aside in a bid to present a united front against it. Skeptical about the BBI, youth organisations of various persuasions—centrist NGOs, pro-Ruto, and left-leaning youth associations alike—called for caution and raised various concerns as follows: the failure of the political elite class to keep its promises to the youth in the past; lack of youth involvement in the BBI process, coupled with the omission of more pressing issues such as the COVID-19 pandemic; the aura of secrecy associated with the document; and doubts over the need for the process and whether it would address everyday challenges faced by the youth. Based on the results of an Afrobarometer survey conducted less than a year to the 2017 general elections in Kenya, Moosa (2018) made an assessment of the Kenyatta-Odinga handshake and argued that the conciliatory gesture would have to overcome the major disagreements that characterised the two sides before the polls were held in order to have the desired long-term effect. Prior to the 2017 elections, Odinga enthusiasts decried the state of the economy and were not impressed by Kenyatta’s performance as president. Moreover, the post-election violence witnessed following the 2017 polls, coupled with government censure of the media, left a lasting negative impression in the eyes of Odinga supporters and would make it difficult for the handshake to be taken seriously by the latter. Incidentally, the survey upon which this assessment was based found several convergence points between Jubilee and ODM supporters as follows: while exhibiting considerable satisfaction with Kenya’s democracy, both groups contended that the government ought to be accountable to citizens and confront important issues such as corruption. To Moosa, these points of convergence would have been the ideal launching pad for the BBI (Moosa, 2018). Given the failure of the Kenyan Truth, Justice, and Reconciliation Commission (TJRC) and the ICC cases to accord justice to victims of post-election violence, Wambua (2019) viewed the unveiling of the BBI as a crucial moment in the quest for peace and unity in the country. While lauding the handshake and BBI for mollifying political acrimony, he looked favourably upon the initiative for seeking the opinions of various stakeholders at both the national and sub-national levels. Nonetheless, he acknowledged the weakness of the truce, especially in relation to the 2007–2008 Kofi Annan mediation process:

While the National Accord framework was enshrined in the constitution through the National Reconciliation and Amendment Act, 2008, the Handshake and the BBI processes [we]re not enshrined within any formal legal framework apart from the gazette that notified of the establishment of the task force. As a result, the initiative has been defined by commentators as a gentleman’s agreement or more of a memorandum of understanding. (Wambua, 2019, p. 3)

Like other Track II diplomatic interventions, argued Wambua, the Kenyatta-Odinga truce and the resultant BBI were bound to face the challenges of mistrust, trepidation and negative response, owing to the element of seclusion that characterised them. Additionally, they would most likely fail the legitimacy test for they were neither initiated by the country’s citizens, legislative assembly, nor the executive, but by the two protagonists in their individual capacities (Wambua, 2019).

Scholarship on the BBI has also examined its legal implications and the jurisprudential lessons that other jurisdictions can borrow from its processes (Akech & Mading, 2021; Roznai & Okubasu, 2022). According to Akech and Mading (2021), the rejection of the BBI by the Kenyan courts was “a triumph for constitutionalism and the rule of law” (p. 1). The decision to shoot down the initiative not only illustrates but also underlines the crucial responsibility courts play in defending constitutions from being violated by the executive, they contend. The BBI judgement, they further argue, is a great example of the manner in which the basic structure doctrine functions to prevent a constitution from being desecrated by the executive. In their opinion, two lessons accrue for South Sudan, from the Kenyan BBI case: first, in its quest to write a permanent constitution, the state of South Sudan should make sure that it engages the county’s citizens to ensure that the process is considered legitimate. Such a participatory approach to constitution formulation would evoke a sense of ownership in the South Sudanese people and they would naturally be inclined to protect the constitution from being contravened by the executive. And second, the envisaged permanent constitution should establish judicial independence, primarily through the inclusion of tenure of office for judges (Akech & Mading, 2021). Roznai and Okubasu (2022), who acknowledge that a constitution ought to be stable and not easily modifiable, have undertaken a comparative analysis of Kenya’s BBI and Israel’s new “rotating government” model, and argue that political bipartisanship poses a major threat to constitutional stability. Accordingly, they continue, judiciaries should be extremely powerful to counter the threats posed by myopic interests of politicians who may close ranks and act in unison—despite their usual differences—to dismember or alter constitutions for personal gain. To them, the BBI was “a situation where a political bipartisanship sought to advance a largescale profound formal constitutional change that would fundamentally alter the institutions and their underlying constitutional identity” (Roznai & Okubasu, 2022, p. 2). They laud the Kenyan courts for invoking the basic structure doctrine to reject it.

Analysis of media coverage of the handshake is also prominent in this scholarly domain (Abade, 2022; Abade et al., 2022; Mutavi, 2021; Ngumo & Omoke, 2021). Abade (2022) scrutinised discourse on the Kenyatta-Odinga handshake and found that “print media in Kenya purposely employed lexical choices to propagate diverse ideas on the handshake”; these ideas included the following: “agreement, conflict resolution, political co-operation, peace, harmony, attitudes, betrayal, reconciliation, threat, conspiracy, revenge, opportune moment to fight corruption, a license to form new political alliances, mitigation measure against political violence[,] and economic growth” (p. v). Moreover, he found, the print media deliberately arranged words and phrases in such a manner as to promote solidarity among Kenyans. And the handshake—in both positive and negative ways—considerably affected how Kenyans viewed social and political matters. Concluding that the handshake was effective at solving conflict, he suggests continued use of the mechanism to solve future disputes in the country and contends further that the media purposely employs stylistic features of language, as appropriate, to boost important national affairs (Abade, 2022). These conclusions of optimism mirror the findings of a study by Kanyugi and Gudda (2019) that indices at the Nairobi Securities Exchange rose following the handshake, a phenomenon that testifies to the investor confidence created by the conciliatory mechanism. Elsewhere, based on an analysis of the headlines of two of Kenya’s leading newspapers, The Nation and The Standard, Ngumo and Omoke (2021) find partly as follows: first, “in both the pre- and post-handshake phases, ordinary people are completely excluded. We are not told what their views are about, for example, the handshake or the protracted political fights” (p. 9); second, during the same timeframes “the destiny of the nation is put in the hands of three men [Kenyatta, Odinga, and Ruto] by the headlines. Other politicians and the general populace have no place or role to play in the political landscape (p. 10)”; and third, after the handshake, the “headlines crystallize hegemonic practices where the masses are made to believe that the Moi, Odinga and Kenyatta families are the gatekeepers of good politics” (p. 11). Similarly, an assessment of editorial cartoons in the aforementioned two newspapers has found that the majority of the cartoons centred on the BBI were political in nature and desisted from depicting, exposing or addressing social and economic concerns captured in the initiative (Mutavi, 2021).

Scholars of the Kenyatta-Odinga truce have also analysed speeches associated with the BBI and come up with interesting findings (Kimenye, 2022; Kirwa et al., 2022). Kimenye (2022) finds that, following the handshake, speeches of the two political leaders, Odinga and Kenyatta, depicted a conscious attempt to employ clever use of an assortment of linguistic tactics—with the use of assertive language being predominant—to enlighten Kenyans on the BBI and to convince them to look favourably towards the initiative. A study by Kirwa et al. (2022) shows that as Kenyan politicians engaged in discourse on the BBI, they often did so in a manner that “threatened the faces of their addressees”; nonetheless, “they were careful and considerate of their primary targets’ faces and attempted to counteract the potential of face damage of the … [face threatening acts] through the notion of redressive action”. This was accomplished through the use of “four politeness super-strategies namely bald-on-record, positive, negative and off-record politeness” (p. 9). Such is the exciting nature of the little research that has been conducted on the handshake and the BBI, apart from which one can seldom find any more credible contributions of a scholarly nature.

Whereas the paucity of research on the handshake and the BBI necessitates a study such as this one, further justification lies in the methodologies employed in the studies reviewed above, which have largely omitted the voices of ordinary citizens at the grassroots level of Kenyan society. Indeed, apart from Abade (2022), who obtains part of his data through attendance of Bunge la Wananchi (People’s Parliament sessions), attempts to engage the country’s masses have been almost non-existent. The studies covered in this review are largely the products of historical reviews and analyses of media reports; and the Afrobarometer survey upon which Moosa (2018) bases his arguments is postpositivist in character, prioritising nominal data and descriptive statistics. Accordingly, in this study, my aim is to meet the objectives outlined in the introduction of this paper (through exploration) by focusing on and highlighting the opinions of the Kenyan masses. I hope to produce material regarding thoughts, perceptions, understandings, impressions and feelings of the Kenyan people (on the handshake and the BBI) in their own words (see Conradson, 2005).

4. Research assumptions

1. Kenyans considered the handshake and the BBI appropriate justice mechanisms vis-à-vis the post-election violence of 2017.

2. Through the handshake and the BBI, former President Kenyatta and opposition chief Raila Odinga were able to subdue the memory of Kenyans in relation to the atrocities committed by the state during the country’s 2017 election cycle.

5. Methods

The study employs a qualitative design anchored in focus group methodology. To collect data, I conducted focus group discussions (FGDs) in three of Kenya’s counties—Homa Bay (Odinga stronghold), Kiambu (Kenyatta stronghold), and Kericho (Ruto stronghold). Purposive sampling was used to select the aforementioned areas. In purposive sampling, “the inquirer selects … sites for study because they can purposefully inform an understanding of the research problem and central phenomenon in the study” (Creswell, 2013, pp. 299–300). The purpose here was to ensure a balanced study by capturing views from the enthusiasts of each of the three protagonists in the Kenyan political story, hence the selection of their strongholds.¹² I thereafter proceeded (despite the challenges occasioned by the COVID–19 pandemic), to randomly source participants from marketplaces, residential areas and villages. A total of 30 FGDs were carried out; I was guided, in this regard, by the principle of “theoretical saturation”, that is, the juncture where fresh enlightenments ceased (see Krueger & Casey, 2015). The FGD data was thereafter transcribed, following which the FGD text was subjected to inductive data analysis, which entails “build[ing] … patterns, categories, and themes from the ‘bottom-up’, by organizing the data into increasingly more abstract units of information” (Creswell, 2013, p. 38). Thereafter, I “work[ed] back and forth between the themes and database until … a comprehensive set of themes” (Ibid., p. 39) was set up. The patterns discovered were reinforced in narrative form using the experiential tales of the participants. Narrative analysis and writing was found to be appropriate, for it accurately represents the voices of Kenyans at the grassroots level of society. Narratives shift the focus from statistics, taxonomies, tables and models to “reflect[ing] what the natives really say” (Geertz, 1973, p. 6), thus ensuring thick description and originality, the latter of which is considered crucial in capturing the attention of policymakers.

6. Findings

6.1. On justice

Various interesting insights emerged from the participants that can help us assess whether the handshake and the resultant BBI were considered to be appropriate justice mechanisms. First, some participants posed the following critical questions: Have the victims been mentioned anywhere in the BBI? Why were they not accorded justice before the BBI? How many years has it been? There was a strong feeling that the Kenyan political elites should have first acknowledged the victims of Kenya’s post-election violence and ensured justice for them before crafting the BBI.

Second, this issue of justice appears to hinge considerably around the idea of compensation of the victims of police brutality, with Baby Pendo as the main symbol. One participant had this to say: “Honestly, if the BBI was geared towards justice, it would set aside some funds for compensating the victims of the 2017 electoral violence; but I don’t see it happening. If they intended to help, they would have started with the baby who was killed by the police—Baby Pendo … I don’t think they have done so” (focus group, Kericho County). On the relationship between justice and compensation another participant opined as follows:

Let me explain further, why I don’t think the BBI will bring justice to the victims of the 2017 post-election violence: suppose I get injured working for you as my employer; according to Kenyan law, you ought to take me to hospital and get me some medical care. Additionally, you should attend to my daily needs, such as meals. This thing is in the Constitution, but we have not adhered to it. (Focus group, Kericho County)

Third, some participants stated that justice should have taken the form of government provision of pro bono legal services to the victims. They were also of the opinion that a team of lawyers should have been appointed and tasked with the responsibility of finding victims. Fourth, to some participants, justice should have entailed apologies and forgiveness deriving from face-to-face engagements between citizens and the police; only then could true reconciliation occur. One of them stated as follows:

If someone wrongs me, I’m supposed to confront him and let him know where and how he has offended me. Only then can a solution be found. We should talk and reach an understanding. This will make forgiveness acceptable. Whenever I offend my wife, I ask her for forgiveness. It’s difficult for a man to seek forgiveness from a woman, but I find a way to humble myself. That is what the Bible teaches: the sun should not go down before we seek forgiveness from those we have wronged and get reconciled with them. (Focus group, Kericho County)

Those who held the aforementioned view contended that the BBI should have been about reconciling the masses and not the creation of political posts. The creation of political posts, they asserted, should not have been included in the initiative. Rather, the building of bridges should have been based on bringing people together; they argued that the leaders should have identified belligerent communities and reconciled them. They would have based this reconciliation, they stated, on the respective communities’ grievances. The need for a grassroots-oriented approach resonated in another participant’s views as follows:

They did what they could at the upper level. But we should’ve had village tribunals, in which people identify themselves and say what they did and what happened to them during the election period. And get sentenced there like they did in Rwanda. There needs to be a healing process that reaches the village level. We can’t heal completely because no-one has owned up about what they did. (Focus group, Homa Bay County)

To these participants, the handshake and BBI route would only serve to divide the masses further. Also, because of corruption, they further alleged, it is difficult to reconcile people in the Kenyan context. They contended that the monies that could have been used to compensate victims or communities, for instance, were being “eaten” by political elites.

Fifth, most participants tied the issue of justice to the country’s judicial system, which they largely had lost faith in and claimed was prejudiced towards the poor. In their opinion, it is extremely difficult for the common person in Kenya to obtain justice: “How many cases do we currently have in court?” they asked. “If you press charges against the rich, they will bribe your witnesses. The latter will not report to court for the hearings. As a poor person, you’ll end up the loser, whether or not you have sufficient evidence” (focus group, Kericho County). Sixth, in a closely related sentiment, some participants contended that the BBI would not yield justice for victims of the 2017 violence because of precedence—compensation in Kenya, they alleged, is often carried out along tribal lines. In the 2007/2008 case, they further alleged, only one ethnic group benefited from government compensation. And the victims from the regions that missed out during that time were not included and discussed in the BBI, they noted. One participant argued as follows:

They won’t get any justice. In the 2007/2008 case, justice was meted out to victims along tribal lines. Only one ethnic group benefited. Only one region benefited from that compensation. The victims from the regions that missed out during that time have not been included and discussed in the BBI. So there is no justice at all. I am originally from Gusiiland; most of us didn’t go to IDP camps, but rather, we were taken in by friends and relatives. So the government forgot about us. Those that chose to stick to the IDP camps received two acres of land and financial compensation. But IDPs from Nyamira did not get anything. (Focus group, Kericho County)

Seventh, some participants contended that justice should be tied to restoration: “There is no justice. Because those whose houses were burnt have never come back. They went away. Others sold their farms, and others’ lives were completely altered, for they had to relocate and start their lives afresh. So I have not seen any justice” (focus group, Kericho County), lamented one. Eighth, some participants, who considered justice to mean access to information, contended that the initiative would not achieve much unless the masses were given the opportunity to read the BBI Report for themselves as they did with the constitutional draft of 2010. As argued by one participant,

If the BBI was geared towards justice, they would made sure that the masses get an opportunity to read it for themselves as they did with the constitutional draft of 2010. In 2010, they explained the constitutional draft comprehensively, and took us through the various acts, which we saw for ourselves. Those that could create time sat down and perused the document for themselves. And they obtained the answers that they were looking for. In this way, when one votes, they know what they are voting for. That is what is there. (Focus group, Kericho County)

Ninth, it was stressed by other participants that justice is dependent on truth, which in turn births peace and reconciliation. In the Kenyan case, they argued, the truth is largely unknown, since nobody has owned up to the events of 2017. One “truth” enthusiast opined as follows:

You cannot forget the past. You can only decide to move on. Once, during the Kibaki era, a TJRC commission was formed. The reason why it was named so is because it was realised that for people to truly heal, they must know the truth. From truth, reconciliation ensues. Then justice comes in. After that, there is peace. But at the moment, in the Kenyan case, we don’t know the truth. Nobody has owned up to the events of 2017 and therefore healing cannot take place. We can only accept and move on. (Focus group, Homa Bay County)

Tenth, some participants argued that justice means genuine concern for the bereaved, which in their view was absent in the handshake and BBI scenario. In Kenya, they stated, the masses riot, protest and even die for politicians. However, once politicians complete negotiations, and obtain personal gain, they completely forget about their supporters who sacrificed their lives on their behalf. They do not even inquire about orphaned children of victims of violence to find out how they are doing. As long as politicians have secured the welfare of their own children, they completely forget about the progeny of those that died for them.

Only one sentiment that viewed the BBI in positive light in relation to justice for the victims of Kenya’s 2017 post-election violence emerged from this research. According to some participants, the initiative may have ended up being beneficial to victims, for processes associated with justice are often gradual. If the government had stated openly that it would ensure that everyone obtained justice in Kenya, exponents contended, it may not have been able to fulfil its promise. It was therefore prudent to proceed slowly and cautiously.

6.2. On memory

Various interesting insights also emerged in this study through which we can evaluate the relationship between the handshake and the resultant BBI and the collective memory of the 2017 post-election violence in Kenya discussed in the background section earlier. In the Odinga stronghold of Homa Bay, the opposition leader’s boycott call was still fresh in the mind of participants one of whom recounted events as follows:

Kikuyu elites’ businesses were taking a hit during Raila’s absence—he’d taken a 3-month-tour to the US following the repeat poll he boycotted. Newspapers, for instance, were not selling in his absence. The Bidco and Safaricom boycotts, inspired by Raila, made me an Airtel customer for I believe in Baba; that is my political father. I have two fathers: my biological, and this one. A blood and a political father. So talks ensued between the Mt. Kenya mafia, who see Raila as a lesser threat to Ruto, whom they fear more. “Help us”, they told Raila. That birthed the handshake and the BBI. (Focus group, Homa Bay County)

Participants also narrated vividly the chaotic events that accompanied the return of Odinga from his short visit to the US, following the presidential election re-run the latter boycotted. One of them stated as follows:

Do you remember when Raila came back from the US [in 2017]? When they did all they could to stop him from getting to the city centre? Did you see how chaotic it was in Nairobi? The city was set ablaze. There was fire everywhere. The police tankers were brought and put to use. Those that splash water on people. They were being driven by civilians and not government forces. The police shot at the masses until they run out of bullets. They then resorted to picking up stones and throwing them at people. They even stoned Raila’s car. (Focus group, Homa Bay County)

Moreover, other fresh accounts of police brutality also emerged, as exemplified by the following sentiments of another participant:

In 2017, my brother-in-law was in Migori Town, where he ran a butchery. As the people prepared to protest, my sister called him and advised him to close shop. He obliged and, as he was boarding his motorbike to head home, the police shot him to death. They killed him on top of his motorcycle. He was shot twice. (Focus group, Homa Bay County)

Most participants in Homa Bay stated that it was impossible to forget such events, largely because the government used excessive force on its citizens—in one participant’s words, “force that the mind cannot forget … force that lingers on in memory”. On Baby Pendo, the infant killed by police in Kisumu, another participant posed the question: “Wasn’t she too little and didn’t know anything about politics?” Recounting the story of Moraa—the other child victim that got caught by a stray bullet while playing on her house’s balcony—they reckoned that there exists adequate pictorial and other forms of evidence on such cases of police brutality, which may be covered up, but will never be forgotten. Amongst this group that argued that it was impossible to forget the events of the past despite the BBI, are those that recalled the murder of the country’s Independent Electoral and Boundaries Commission (IEBC) ICT boss, Chris Msando. They were of the opinion that Msando’s mother would never forget the loss of her son. As stated by one participant, “Perhaps Msando’s wife, who was appointed to a certain position by the government, can forget. But the woman who gave birth to Msando? Never!”

Significantly, discussions on collective memory in relation to the BBI evoked strong thoughts on the 2007 episode too. In Homa Bay, a participant posed the following pertinent question: “Do you think [Bernard] Ndege, the man from Karachuonyo whose entire family [of 11] was killed in Naivasha, can forget?” To this lot of participants, the 2007 post-election violence was “just like a case of a broken leg, which undergoes bone fracture repair, comprising metal screws and rods; you would never forget this, with or without the BBI” (focus group, Kericho County). In Kericho County, where most participants said they could forgive but would never forget, Kenyans, in some cases, live side-by-side with symbols of past violence such as remains of burnt and demolished buildings abandoned by owners who were forcefully evicted during the unrest. In the words of another participant,

No-one will forget. As we speak, there are some who have never gone back to their homes to either rebuild or renovate the houses they fled from, some of which were razed to the ground. Some left and completely lost interest in their former areas of residence; I don’t think they will ever forget. That is something that can never be forgotten. (Focus group, Kericho County)

Still, another participant lamented,

This, here, is a victim’s house. If it were you, and this was your property, would you ever forget? Supposing it belonged to this old man: would he ever forget? If this storeyed building was his, this one here—something that must’ve cost the owner millions of shillings. And then he wakes up one morning to the news that his building in Kericho has collapsed. Wouldn’t the sad news kill him? (Focus group, Kericho County)

There appears to be a psychological aspect associated with electoral violence. While narrating his experience, one participant stated as follows: “You know, since I was born I had never heard the sound of a gunshot. But, because of the violence of 2007, whenever anything falls down today, fear grips me; because it was ‘Tu!’ ‘Tu!’ ‘Tu!’ everywhere”. According to the participant, “The police were walking in pairs, cocking guns. They shot anyone they encountered. They unleashed gunshots on sight. So it is difficult to forget those events” (focus group, Kericho County). Another account closely tied to this apparent psychological element of violence went as follows:

You see this house here? The owner used to live in it. From 2007 to date, he has never come back. He doesn’t want to see it. How long has it been since 2007? Almost 20 years. In these 20 years, what do you think the owner of this property and his children have been going through mentally? Or, if they happen to pass by, and see their former home, how would they feel? (Focus group, Kericho County)

The less prevalent view holds that Kenyans would like to forget their violent past, but politicians bring it up when elections approach. As narrated by one participant, “You hear them say, ‘Don’t give so and so the presidency because of what they did to us in 2007, 2013, and 2017’. So it becomes very difficult to forget, because these politicians remind us” (focus group, Homa Bay County). Such comments, they said, are made mostly on platforms such as TV and radio.

7. Discussion

The findings of this study on the need to explicitly mention or acknowledge victims of post-election violence in the BBI resonate with the arguments of Waterhouse (2011) who has called for rectificatory justice in the American case of chattel slavery. Whilst recognising that harm ought to be addressed in compensatory terms, rectificatory justice places in high regard the need to remedy or resolve “wrongs” (Waterhouse, 2011). Wrongs, according to him, “[g]enerally represent violations of social norms or accepted standards of behavior” (Waterhouse, 2011, p. 708). They embody or represent “disrespect of a person’s dignity” (Ibid., p. 709). Accordingly, the reversal of a wrong entails “[a]cknowledgement, admission, and apology” (Ibid.). Notably, “victims” personal feelings about the importance of these acts” (Ibid.) is insignificant; “their intended social meaning is the public provision of respect to victims that was formerly denied to them by their mistreatment” (Ibid., p. 710). The issue of acknowledgement appears to cut across national borders too. According to Wezel (2016), Latvia has endeavoured relentlessly to get Russia, and the European Union (EU) at large, to recognise human rights abuses of the Soviet era. Wezel demonstrates that collective memory is layered and dependent on the carrier group: “Prior to eastern EU enlargement, the focus of European memory politics was mainly concerned with the continent’s Nazi past. The Eastern European states add a new layer to Europe’s memory seeking by highlighting humanitarian crimes committed under Soviet rule” (Wezel, 2016, p. 560). Importantly, Latvia’s attempts to expose Soviet era ills on the EU level coincided with Vladimir Putin’s “revival of Soviet narratives about the Great Patriotic War” (Ibid.). There might, therefore, be some form of psychological or intangible power associated with controlling the historical narrative or mnemonic sphere. Evidently, when it comes to international relations, collective memory is neither analogous nor absolute: as a consequence, EU prosperity may be partly dependent on the recognition of additional and differing or competing layers of collective memory.

The opinion of participants on compensation of victims is in tandem with the fundamental intentions of transitional justice, whose objectives, according to Galindo and de Castro (2018) include “material justice, reparation to victims, institutional reforms, clarification of the truth and creation of collective memory regarding the authoritarian period” (p. 309). Similarly, Franke (2006, p. 813) has argued that transitional justice mechanisms include “compensation or reparation to victims and/or their families (in the form of money, land, or other resources)” among others. The idea of justice constituting apologies and forgiveness deriving from face-to-face engagements mirrors Curry’s (2007) comparative analysis of South Africa, El Salvador and Poland, which demonstrates that successful change from a totalitarian to a democratic dispensation is heavily dependent on the way former aggressors and their victims relate in a post-authoritarian era. According to Curry (2007), “transitional justice can free political behavior from the trappings of the past, but only if aggressors and victims confront one another and move toward reconciliation” (p. 58).

Whereas grassroots-oriented reconciliation measures (recommended by some participants in this study) may yield justice, and appear better than top-down approaches, caution should still be taken when adopting such methodologies. It has been argued elsewhere that grassroots-oriented reconciliation measures can be instrumentalised and used as a tool for meeting political objectives. In the case of Rwanda, for instance, Loyle (2018) contends that “it was not simply the implementation of gacaca which was used for a specific political purpose, but rather the process itself which was structured in a way to consolidate political order for the Rwandan Patriotic Front government” (p. 663). Although the successes of gacaca—the decongestion of correctional facilities, a newfound posture of intolerance to genocide and a strong disapproval of impunity—are easily discernible, critical thinking is required to decipher the community justice system’s cons, which include the following: subtle eradication of opposition politics, and state repression masked and propelled by pronounced calls against ethnic division and potential genocide (Loyle, 2018). On the other hand, top-down transitional justice processes may fail to contemplate initiatives that would be beneficial to citizens at the grassroots level of society, making the call for grassroots-oriented reconciliation measures extremely viable; indeed, grassroots-oriented approaches offer, among other things, what Jebari (2018) has referred to as “sufficient space to the cathartic expression of painful remembrance” (p. 110). Gomez (2022), who appreciates the importance of a grassroots-oriented approach to transitional justice, premises his work on the perception of collective memory as a social process. Cognisant of the dialectic between formal and informal versions of collective memory, he gives prominence to the latter, detailing the diverse and creative memory initiatives undertaken by women (victims’ organizations) at the grassroots in post-conflict Colombia. The memory initiatives, which appear to be in tandem with the idea of catharsis, include the following: 1) “big walls of photographs made to remember the victims of armed conflict” (Walls of memory); 2) “monthly walks to places where their relatives were killed, or where the bodies of missing persons are presumed to be buried” (Trails for life); 3) “photographic exhibitions of people that have disappeared during the armed conflict, whose families and communities wish to commemorate” (Never again exhibitions); and 4) “green spaces created to commemorate war events” (Memorial parks) (Gomez, 2022, p. 381). These memory initiatives in the case of Colombia, it is important to mention here, contrast sharply with the memory initiatives proposed by the BBI, which did not directly address the 2017 post-election violence; indeed, the BBI did not explicitly mention “the gathering and preservation of information” (Whigham, 2017, p. 58) on the egregious occurrence. Instead, as discussed earlier in the background section, it talked of the need for general memory initiatives such as “the running of educational, awareness-raising, dialogue and remembrance programs, the teaching of history” (Ibid.), which had nothing to do with the 2017 post-election violence episode. In this sense, it is possible to argue that the BBI failed the victims of the violence.

The issue of corrupt judicial systems standing in the way of justice is comparable to the views of Franke (2006), who highlights the challenges posed to transitional justice as a phenomenon, and focuses on the element of gender, arguing that it has taken time for international humanitarian law to appreciate the seriousness of atrocities committed against women in times of war. Rather than being seen as a severe infringement, for instance, rape, for a long time, was simply considered “a crime against dignity and honor”, owing to “the masculinity of international humanitarian law” (p. 816). Although “rape, sexual slavery, enforced prostitution, forced pregnancy, gender-based persecution, sexual enslavement, enforced sterilization, and sexual violence [are now regarded] as war crimes and crimes against humanity” (p. 817), there is room for further improvements. For example, these acknowledgements need to be backed by effective prosecutorial action; also, judges should provide more room for expression for victims to eliminate shame (Franke, 2006).

The contention of some participants in this study that compensation in Kenya is often carried out along tribal lines is similar to the arguments of Lynch (2009) who has studied IDP resettlement in Kenya following the post-election violence of 2007–08. According to Lynch (2009), the resettlement of the IDPs was carried out—by both state and non-state actors—in a manner that was likely to foment rather than curtail violence and displacement in the future; the effort to return and relocate victims was disproportionately directed towards the Rift Valley Province, despite the fact that displacement took place in other provinces too. Accordingly, most IDPs from Kenya’s other provinces were mostly disregarded. Essentially, she contends, humanitarian efforts targeted those in IDP camps and largely left out those who were taken in by family and friends. Notably, she explains further:

The story of displacement and response is also one that has become closely equated with Kikuyu residents of the Rift Valley who comprised the majority of local camp dwellers. One consequence and a potential point of conflict, is stronger perception (particularly among Kalenjin in the Rift Valley) that all communities were affected by the violence, but while “their” culture—and the culture of the Luo—did not let them go to camps and encouraged absorption by friends and relatives, the Kikuyu went and “cried” in the open. Unfortunately, this narrative has further enhanced a sense that the state and civil society is biased towards the needs and interests of a particular community. (Lynch, 2009, p. 605)

As discussed earlier, access to information (on the BBI in this instance) was considered by some participants in this study to be a crucial element in the process of obtaining justice; this view partly echoes the findings of a study by Szczerbiak (2017) on Polish society, which is still dealing with the effects of its communist past in some ways. Opinion in Poland is divided on whether archived files (which contain information on those who collaborated with communist security services, some of whom may include present day public figures and political elites) should be made available to facilitate lustration efforts: whereas some want to forget and move on, others feel that it is their prerogative to be acquainted with the past deeds of public figures and political elites. The latter group considers access to information to be crucial in the transitional justice process.

In a manner that would support the findings of this study, various scholars have fronted truth as particularly crucial in the quest to bring about justice. Waterhouse (2011), in his assessment of the American scenario, argues that “the United States has some disturbing aspects of its past that are inextricably woven into its identity but are largely absent from its conscious memory (e.g., slavery)” (p. 704). Unless there is a “total recall” of genuine history (including chattel slavery), he continues, there cannot be true healing and reconciliation in the US. As a solution, he proposes rectificatory justice: “the creation, development, and support of monuments, memorials, museums, research grants, and educational programs to commemorate, honor, recognize, and humanize the roughly twenty generations of enslaved Africans and their contributions to American society” (Waterhouse, 2011, p. 707). Importantly, it has been argued, whilst truth has the potential of causing disruptions, it can be tied to some useful objectives such as “freedom of information, the need to tackle corruption and the importance of reviewing the political system more generally” (Szczerbiak, 2017, p. 326). Elsewhere, Galindo and de Castro (2018), with a special focus on Brazil and Chile, employ the lens of transitional justice law, as enshrined in the jurisprudence of the Inter-American Court of Human Rights (IACHR), to examine the right to truth and memory in relation to human rights abuses that have occurred in times of tyrannical rule. Using several verdicts of the IACHR, they comprehensively outline the nature of truth in a context of transitional justice, which encompasses various multidimensional elements including the following: “[t]he right of the victims’ relatives [in cases of political arrests and disappearances] to know their destination, as well as the location of their remains” (p. 310); “ensuring reparation to the relatives of the victims” (p. 311); “establishing a truth commission to investigate and elucidate the facts”; and “adopt[ing] measures for the preservation of the victims’ memory as a part of reparation as well as historical memory” (p. 312). Based partly on the aforementioned parameters, their conclusion is that various deficiencies characterise Brazil’s and Chile’s attempts at transitional justice; greater attempts need to be made by both countries to ensure truth and public memory of victims are upheld more profoundly.

With regard to memory, the psychological effects of atrocities alluded to in the findings of this paper correspond to the contribution of Haebich (2011), who attempts to explain the collective forgetfulness and ignorance of a section of white Australians following the latter’s outrage over an apology made by former Premier Kevin Rudd on the nation’s behalf to Aboriginal Australians in 2008. The apology stemmed from the Bringing them Home report (the product of an inquiry commissioned by the country’s attorney general in 1995 and based on the testimonies of Indigenous Australians obtained through extensive interviews), which found “that between one and three of every ten Indigenous children had been forcibly removed from their families” (p. 1033). The report also comprised a “litany of unhappy lives spent in institutions, foster homes, adoptive families and forced employment”; moreover, “ongoing medical, psychological and emotional problems, addictions, mental illness, incarceration, violence, self-harm and suicide that haunted the Stolen Generations” (p. 1033) characterised its findings. Significantly, the findings of this paper show that incidences of police brutality, the murder of both citizens and electoral officials, and symbols of past violence, make collective memory durable and difficult to manipulate or erase.

Ultimately, concerning the first assumption of this research, the study finds scare evidence to suggest that Kenyans considered the BBI an appropriate justice mechanism in relation to the post-election violence of 2017. As for the second assumption, it finds overwhelming evidence to the contrary: the memory of the 2017 post-election violence, as earlier recounted in the section on collective memory of Kenya’s 2017 general election, was still fresh in the minds of many when this study was conducted.

8. Conclusion

This research was inspired by the idea that political elites cannot be trusted to initiate or lead reconciliation processes, for various reasons such as the manipulation of collective memory for political expediency. To assess this argument, it has examined the BBI (now-defunct) fronted by Kenya’s foremost politicians, former President Uhuru Kenyatta and opposition leader Raila Odinga, in relation to the following two questions: i) Did Kenyans at the grassroots consider the handshake and the resultant BBI appropriate justice mechanisms vis-à-vis the post-election violence of 2017? And ii) How did the handshake and BBI affect collective memory of the 2017 post-election violence? It finds overwhelming evidence to suggest that Kenyans did not consider the handshake and the resultant BBI appropriate justice mechanisms in relation to the post-election violence of 2017. Additionally, to a large extent, Kenyans appear not to have fallen prey to what could be considered mnemonic conspiracy aimed at the attainment of personal interests and gain by the country’s two top politicians—they still largely and vividly remember the violent events of the 2017 electoral cycle.

The grassroots understanding of what constitutes justice for victims of post-election violence in Kenya is multifaceted and features the following components, among others: the need to first acknowledge (explicitly) the victims of Kenya’s post-election violence; the provision of compensation, and restoration, for the victims of police brutality; government-led provision of pro bono legal services to the victims of electoral violence; a grassroots-oriented approach to conciliation, involving apologies and forgiveness deriving from face-to-face engagements between citizens and the police; reforms in the country’s judicial system, which is considered to be largely prejudiced towards the poor; detribalisation of initiatives geared towards resettling those displaced; greater access to information (on the BBI); establishment of the truth regarding the atrocities associated with the 2017 electoral cycle; and genuine concern for the bereaved. Also, the events of 2017 appear to have traumatised Kenyans, some of whom appear to be dealing with psychological issues arising from the violence they either witnessed or experienced. The findings of this paper further show that incidences of police brutality, unexplained murders of electoral officials, and symbols of past violence (such as remains of burnt and demolished buildings abandoned by owners forcefully evicted during incidences of electoral violence that preceded the 2017 episode), make collective memory durable and difficult to manipulate or erase.

The findings of this study imply that conciliation mechanisms work best when they are people-centred. It is apparent that, for the country’s masses to overcome their turbulent past, and forge ahead with the hopes of a unified, cohesive society, future attempts at reconciliation should mainly focus on unrushed grassroots-oriented approaches that engage and involve the masses more profoundly and inform them sufficiently of the nature of the proposed justice mechanisms. Additionally, since mechanisms of transitional justice may not fully deliver on desired objectives when it comes to appeasing victims of violence, it would be prudent for such conciliatory measures to combine elements of transitional justice with those of rectificatory justice, for the latter aims at the restoration of the dignity of victims of atrocities. Finally, seeing as the handshake and the BBI generally did not prioritise the issues around justice raised by participants in this study, it is difficult to argue that the truce was an attempt at the pursuit of justice for victims of electoral violence; also, if the handshake and BBI were part of a subtle quest to manipulate collective memory for political expediency, the findings of this study show that they completely failed in that regard. As already stated, Kenyans remember the 2017 election cycle, and the atrocities thereof, vividly.

Disclosure statement

No potential conflict of interest was reported by author(s).

Additional information

Funding

This work was supported by the National Research Foundation of South Africa (NRF) [132017].

Notes on contributors

Albert Gordon Omulo

Albert Gordon Omulo is a Postdoctoral Fellow at the Department of Political Studies, in the School of Social Sciences, University of the Witwatersrand, South Africa. His research interests include Public policy, Electoral violence, African history, Political economy of ethnicity, Politics of the African Great Lakes Region, Human rights, International relations, and International humanitarian law. This research was approved by the University of the Western Cape IRB#HS 20/1/14, 2020. The data that support the findings of this study are openly available in figshare at https://doi.org/10.6084/m9.figshare.20000906.v1

Notes

1. For the purposes of this paper, collective memory refers to a “constructed past which is constitutive of the collectivity” (Misztal, 2003, p. 13).

2. See Press statement by Law Society of Kenya President, Isaac E. N. Okero, dated February 6, 2018, accessed 21 July, 2018, https://twitter.com/lawsocietykenya/status/961105262173216768.

3. See “Martin Luther King’s Final Speech: ‘I’ve been to the mountaintop’ – The full text”, abc News, accessed August 11, 2018, https://abcnews.go.com/Politics/martin-luther-kings-finalspeech-ive-mountaintop-full/story?id=18872817.

4. See NASA Coalition (@CoalitionNASAKe), “Find the full range of Haco Tiger Brands products to be boycotted here: http://www.hacotigerbrands.co.ke/”, Twitter, January 25, 2018, https://twitter.com/coalitionnasake/status/956465839607336960.

5. See NASA Coalition (@CoalitionNASAKe), “Motion for County Assemblies on Creation of People’s Assembly in Kenya”, Twitter, November 7, 2017.https://twitter.com/CoalitionNASAKe/status/927890885081169921.

6. Ibid., p. 1.

7. Ibid.

8. Ibid., 1–2.

9. Ibid., 2.

10. Ibid., 3.

11. See “Petition of Kenyan Peoples’ for Right to Self-determination,” accessed July 17, 2018, https://www.thepetitionsite.com/877/524/634/kenyan/?src=referrer&campaign=https%3A%2F%2Ft.co%2F2Wcq1RyFmw.

12. Kenya, which is now administratively divided into 47 counties, each under the leadership of a governor, has historically, up to 2013 when Kenya’s new constitution was operationalised, comprised eight provinces, viz.: Central (Kikuyuland, where Kiambu lies), Coast, Eastern, Nairobi, North Eastern, Nyanza (Luoland, where Homa Bay lies), Rift Valley (Kalenjinland, where Kericho lies) and Western. These provinces were essentially the result of European colonial mapping and land policy which “most decidedly intersected with the creation of ‘native reserves’, a concept that embedded ethnic identity in geographical space, assigning specific parts of the country to specific ethnic groups” (Shutzer, 2012, p. 348).