The Kenya National Dialogue and Reconciliation process (KNDR) led by Kofi Annan brought together the political parties disputing Kenya's 2007 presidential election, reaching an historic agreement to form a coalition government on 28 February 2008. The National Accord and Reconciliation Act 2008 that was subsequently passed to amend the constitution and facilitate power sharing - with Mwai Kibaki as President and Raila Odinga as Prime Minister - was internationally acclaimed, and appeared to begin a new era of progressive consensus politics in Kenya. Nicholas Daniels is a freelance writer living and studying in Nairobi, Kenya. The arguments in this article are informed by fieldwork and research undertaken March - August 2009.

Hope soon faded however with the creation of the largest cabinet in the history of post-independence Kenya. In order to satisfy Kenya's array of tribal communities, whilst also accommodating diverse political alliances and vested commercial interests, the spirit of reconciliation soon gave way to a realization that the government would be unable to deliver on all its promised KNDR reforms.

Whilst some progress has been made towards key reforms, the coalition has been unable to deliver an appropriate criminal justice mechanism to prosecute suspected perpetrators of the post-election violence. The activity of militias, vigilantes, and gangs supported by leading politicians playing a game of divide and rule as they vye for political supremacy makes this all the more worrying.

Kenya urgently needs progress on all four agendas agreed under the KNDR process if the threat of further militia activity is to be reduced. Political leaders in the government coalition who fail to support the direction given by the president and prime minister should resign or face the sack. All efforts, whether in parliament, cabinet, civil society or the media need to be focused on championing the reform agenda, rather than debating the 2012 presidential election.

Militias are seeking to fill the void created by a failure to repair Kenya's economy and rule of law. Unless post-election violence suspects are prosecuted, a feeling of impunity will further embolden unscrupulous leaders and in the absence of a united political direction, social unrest and the threat of organized violence will worsen.

With parts of the country blighted by militias and inter-ethnic clashes, there can be little hope that Kenya will avoid politically-driven unrest before the next presidential election. This is likely to manifest itself in a return to nationwide fighting and further humanitarian crises - as happened so suddenly in 2007.

Kenya National Dialogue and Reconciliation Process At the ‘Kenya National Dialogue and Reconciliation: One Year Later' meeting in March 2009, Kofi Annan commented that ‘there was confidence in the mediation process, yet this mirrors, inversely, the overwhelming lack of confidence in the public institutions in Kenya as a cause of the crisis. The Accord is a platform to begin these reforms, but greater political will is needed to see this through'.

Some criticized the idea of power sharing in Kenya on the basis that ‘while the principals have stood tall to steer the country towards seeking justice and reform, they have also failed to give leadership at some key points'. Others point to Kenya's constitution as perpetuating the risk of political violence in the future, a barrier that would undermine the Accord even before it was signed. Recent submissions to the Panel of Experts on Constitutional Review show that Kenya's main political factions - President Kibaki's Party of National Unity (PNU) and Prime Minister Odinga's Orange Democratic Movement (ODM) - do not disagree very much on what a draft new constitution should contain, but there are clear signs that political divisions are ready to emerge.

There is a real risk that a constitutional referendum would present an opportunity to return to divisive politics. Intractable and longstanding national grievances over, amongst other things: land ownership; access to jobs (particularly amongst those aged 18 to 30); distribution of wealth; and ethnic stereotypes, cannot be underestimated. With political disputes over the interpretation of the Accord reflecting long-held views that have been put on hold, constitutional, economic, and land reforms have given way to partisan politics.

In February 2009 parliament sought to legislate for a constitutionally entrenched domestic ‘Special Tribunal', to try those suspected of crimes against humanity following the 2007 elections. Despite unanimous government backing, the number of MPs required to vote in favour of the constitutional amendment was insufficient, and the legislation failed. When the coalition consulted again in July 2009 in a second attempt to bring the legislation before parliament, the lack of support in cabinet resulted in a resolution to avoid domestic criminal justice altogether.

A strong feeling exists amongst Kenyan civil society that a domestic tribunal could be subject to political interference, and that Kenya's best option to achieve justice for victims of the 2007 election violence is for the International Criminal Court (ICC) to prosecute suspects. A hybrid solution involving a domestic Truth, Justice and Reconciliation Commission alongside ICC investigations is a more likely outcome. However the ICC's inability to act promptly and indict all but a few leading suspects has almost certainly given succour to planners and instigators of political violence in Kenya.

The indecision created by the coalition sends a message that politicians in Kenya can continue using violence as a means to an end. Militias in Kenya have long played a role in supporting candidates who hire them. Without targeting known individuals who are adept at masterminding political violence, a return to instability of this nature is only a matter of time as future generations await a call-to-arms.

Prosecuting high, middle and low ranking suspects through a local tribunal would have forced prospective offenders to reconsider their involvement in tribal and militia violence. With no criminal justice mechanism to follow up on the 2007 election chaos - despite the cogent recommendations of the Commission of Inquiry into the Post-Election Violence (CIPEV) - Kenya will continue to experience cyclical instability during elections and other times of political significance.

Militias, Vigilantes and Gangs

The objectives of militias and their links to political elites are difficult to uncover. Nonetheless, credible reports continue to emerge that armed groups are preparing for renewed violence across Kenya. Uncertainty about how Kenya's post-election violence will be addressed, combined with lack of leadership, an upsurge in criminal and gang violence and increasing ethnic polarisation and corruption, leaves an irate public fearful of the future. Leaflets warning of future violence are circulating in the Rift Valley, while the criminal Mungiki gangs are said to be rearming their supporters. Without a resolution of the legal and political crisis, politicians are preparing for a worsening confrontation in the run-up to the 2012 elections.

In Rift Valley Province (RVP) the notion of organized Kalenjin militias is often refuted. But when Kalenjin males undergo circumcision, they learn a vernacular rich in the language of warfare and the need to defend their community when called upon, and this can easily be tapped into in order to mobilize a large group of young men.

Since the departure of Daniel Arap Moi as president in 2002, the Kalenjin community has been on the search for a new leader who will promote their interests in the national political arena. In William Ruto, Agriculture Minister since 2008, who has long been associated with the politics of the region, they have found their man. Kalenjins in Rift Valley assert that if Ruto were tried for his alleged involvement in the 2007/08 post-election violence, they would resume expelling Kikuyu and Luo from the province.

The prospect of Kikuyu militias in Rift Valley cannot be discounted either, with grievances still strongly felt after the mass displacement of thousands of Kikuyu families following the 2007 elections and the threat of further reprisals. The lack of any meaningful peace building and reconciliation in RVP is evident in the trenchant attitudes still held by many who oppose the return of Kikuyus to farms from which they were displaced.

The outlawed organisation Mungiki has continued to murder, extort and create a climate of fear in rural and urban areas. Despite efforts to crackdown on their activities, Mungiki's continued existence proves that the group has continued recruiting and expanding its criminal network. Mungiki benefits from a wealthy base of supporters and is funded by protection money demanded from residents of Central Province, as well as the slums and other more affluent parts of Nairobi.

High-level support from prominent members of Kenya's political establishment seeking to hire Mungiki was identified by CIPEV. On 21 April 2009 approximately 30 people were killed in Nyeri East District. Local residents suspected Mungiki was avenging the killing of 15 members in neighbouring Kirinyaga District by recently formed vigilante groups the week before.

What might therefore be seen in Central Province is a regional conflict between Mungiki and vigilante groups supported by Kenya's security services. After a great deal of criticism for its punitive campaign in 2007 to reign in Mungiki, vigilante groups are seen as a proxy of the police to enhance its work in the region and combat local crime.

This should be of great concern given the prospect that such vigilantes could evolve into criminal entities in their own right, morphing into militias able to exert power over communities and gain influence on local political proceedings.

Such a phenomenon can be observed in the gangs that exist in and around Nairobi, who often act as vigilantes in areas where the police fail to provide protection. Their involvement during elections suggests a tendency for them to behave as ‘foot soldiers', coming together when hired to do so and forming groups to take care of the interests of local politicians and businesspeople.

Inter-gang fighting and clashes have occurred in Nairobi, with fighting in 2006 between Mungiki and an ethnic Luo gang called Taliban causing several deaths and displacing at least 9,000 in a dispute over control of a lucrative illicit brew market in Mathare. The Kenyan government banned 18 such groups in 1992. In Kisii District, Nyanza Province, residents have long suffered the activities of militias, with Sungu Sungu particularly notorious for its summary executions and political violence. The group, which started by helping fight crime as a community policing, has now become a militia for hire. This is hardly surprising given the appeal of such work for otherwise unemployed young men.

Institutional Weaknesses

Martha Karua's resignation as Minister for Justice in April 2009 reflected a widely shared frustration at the slow pace of reform. Hostile divisions in the coalition subsequently became even more public when President Kibaki appointed Vice President Kalonzo Musyoka as Leader of Government Business and Chair of the House Business Committee. Amid Orange Democratic Movement (ODM) complaints that Prime Minister Raila Odinga should fill both roles the stalemate was temporarily ended when Speaker Kenneth Marende himself took charge.

President Kibaki's health and ability to carry out his duties has been a source of discussion ever since he took office in 2002. The effects of a car accident during the 2002 election campaign have been compounded by failing health, strokes and possible signs of dementia. This inevitably fuels speculation about who his successor will be. Prime Minister Raila Odinga continues to enjoy wide national support and he is viewed by a cross section of Kenyans as the best candidate to remove power from a wealthy, largely Kikuyu group surrounding President Kibaki.

The problem remains, however, that members of both ODM and the Party of National Unity (PNU) are determined to advance their own personal and community interests, and are prepared to revert to tribal politics to do so. One example has been the alleged meetings between Agriculture Minister William Ruto and Deputy Prime Minister Uhuru Kenyatta, who come from opposite sides of the coalition and were both implicated as leaders in the 2007 post-election violence as principals of the Kalenjin and Kikuyu respectively.

Other possible presidential aspirants include Vice President Kalonzo Musyoka, Deputy Prime Minister Musalia Mudavadi, Internal Security Minister George Saitoti and former Minister for Justice Martha Karua. With such an array of individuals jostling for position, the dynamics that hold the coalition together have become complicated, greatly weakening momentum behind the national reform agenda and the ability of the Kibaki and Odinga to show leadership.

Given the animosity between ethnic groups in Kenya, violence could easily be fomented as a means to an end. Social unrest could arise out of frustration with the performance of the coalition, with unemployment, famine and broken promises driving people to extremes. There can be little hope of laying the foundations for inter-ethnic cohesion so long as self-interested community-based politicking trumps socio-economic development.

On 28 May 2009, UN Special Rapporteur Professor Philip Alston published a report calling for the sacking of Police Commissioner, Major General Hussein Ali, and the resignation of Attorney General, Amos Wako. Detailing his findings on extrajudicial killings in Kenya, Alston accused the Police Commissioner, the Attorney General and the judiciary of perpetrating, aiding and abetting impunity.

The brutal tactics of Kenya's security forces have long been criticized. With a police hit squad known as the Kwekwe formed to combat the emergence of Mungiki, secret police killings of more than 500 youths were reportedly sanctioned by the government. State aggression on a similar scale was widely documented during the 2007 post-election violence and in 2008 in Mt Elgon district, where as many as 220 people were allegedly killed in a campaign to end the activities of the Sabaot Land Defence Force militia group.

With violence routinely used by Kenya's security forces under the guise of law and order, there can be little hope of restoring faith in the state as a protector of people's rights so long as police officers and other security agents are able to kill with impunity. The prospect looms of a cycle of violence that pits the state against local militias and gangs, disconnected with the government and its inability to deliver for all citizens.

As in the former Yugoslavia and Sri Lanka, so too in Kenya in the absence of impartial agents of the state, fear grows. Citizens rely on ethnic militias to protect them, adopting their ethnic identities as a means of survival. Inevitably, all groups will arm themselves to prepare for the worst, which makes the worst more likely.

As long as the state resorts to force to resolve its problems, governments in Kenya will have little incentive to grapple with the root cause of the gangs and militias. Social unrest will go on as long as the government, police and security services remain unaccountable, opting for conflict over conciliation.