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2.5.2.1 Politics and Security

Politics and security are like the two sides of a coin. Scholars and practitioners alike agree that the two affect each other in equal measure.

The success or failure to reform the security and police sectors depends

36 The five areas of support included supporting the establishment of structures of proper civilian control over the military; training members of the military in international humanitarian law and human rights; strengthening national parliamentary oversight of the security apparatus; supporting civilian organizations that might act as watchdogs over the security sector and supporting the demobilization and reintegration of ex-combatants.

on the political goodwill. The security sector is also crucial to political power, both in the ‘macro’ sense of regime stability and in the ‘micro’

sense of exercising day-to-day political control.³⁷ Security sector reform is therefore closely tied to domestic processes of political and social change (Hendrickson and Karkoszka, 2002). For Nathan (2008) and Wulf (2011), SSR is profoundly political, and therefore faces resistance or lack of political will (Mayer-Rieckh and Duthie, 2012). Despite the above strong link between politics and security sector reform, there still exists a gap in the articulation of this link in the literature.

Although post-conflict situations provide opportunities for far-reaching police reforms, literature reveals little attention was given to police reform at the formative stages. For example, in a study of twelve cases of police reforms in peace agreements, Call and Stanley (2001) found that in only eight cases was any reform really implemented. And only in the cases of El Salvador, Namibia, and South Africa were most of the provisions and international expectations regarding police reform realized in practice. In two cases (Cambodia and Nicaragua), police reforms occurred, although they were omitted from peace accords. These reform processes, however, tended to be less extensive than those written into peace agreements. This scenario has gradually changed as evidenced by recent peace agreements, for example the Global Political Agreement of Zimbabwe (2008) and the Peace Accord of Kenya (2008) which have strong SSR components including the reform of the police.

In a review of cases of police reforms in Africa, namely; Angola, DRC, Mozambique, Kenya, Namibia Nigeria amongst others, (Rauch and Van der Spuy, 2006) discovered that each case provided proof of the intimate connections between police and politics. They argue that police reform is deeply a political endeavour - political interests are fundamental to the process of reform. Nevertheless, security reforms remain one of the most important mechanisms for preventing political violence and common crime in many post-war settings (Call and Stanley, 2001).

37 This debate is further developed in Chapter 4 in relation to Kenya.

Effective police and justice reform supports a positive climate even when broader political arrangements are uncertain or less than democratic. On the other hand, an ill-considered security sector restructuring programme has the potential of interfering with political stability. Williams (2000) for example argues that there are compelling examples of countries for example, the Central African Republic in the mid-1990s, the frequent mutinies in the former Zaïre and the 1997 coup in Sierra Leone where an ill-considered security sector restructuring programme has actually bedevilled political stability.

The above discussion suggests a growing corpus of literature explaining the relationship between politics and SSR, specifically police reforms in post-conflict countries. While the literature provides sufficient evidence and lessons that police reform is an important ingredient for long term peace in post-conflict countries, the influence of power-sharing dynamics on police reforms in transitional post-conflict countries remain scanty.

There is limited literature that explores the constraints, as much as opportunities for police reforms in countries that have adopted power-sharing agreements. This PhD fills this gap in its Chapter 5, by exploring the Kenyan case in presenting how power-sharing shapes the SSR and police reform process in transitional post-conflict environments.

2.5.2.2 Understanding Post-Conflict Power-sharing

Power-sharing agreements have in the recent years become popular tools of resolving conflicts in transitional post-election crisis societies. Spears (2000) defines power-sharing as a situation whereby government posts are distributed across the most powerful political parties or groupings.

Rothchild and Roeder (2005) however distinguish between power-sharing institutions and policies to imply formal arrangements in the former and polices that can be formal or informal in the later.

Whilst different understanding of power-sharing abound, consociationalism remains the most cited form. Advocated by Lijphart

(2008),³⁸ consociationalism argues that political culture and social structure are empirically related to political stability and that societies divided by sharp cultural or ethnic, racial and religious differences or are deeply fragmented because of these differences would experience political instability. However, there are instances where such differences do not necessary lead to instability-the societies are divided yet stable. It is these that Lijphart calls ‘consociational democracies’ (Lijphart, 2008).

In a consociational democracy therefore, leaders of rival sub-cultures may engage in competitive behavior and further aggravate mutual tensions and political instability. But they may also make deliberate efforts to counteract the immobilizing and un-stabilizing effects of cultural fragmentation (Lijphart, 2008). In this respect, a variety of institutional arrangements with deliberate efforts by the elites to stabilize the system are required (Spears, 2000). Lijphart thus proposes consociational solutions that emphasize the importance of sharing power among different segments in the society for purposes of stability. A grand-coalition government in which power is shared among different factions that form the coalition is the most typical consociational solution in fragmented societies (Kanyinga, 2009).

Four structural features are shared by consociational systems – ‘grand-coalition, cultural autonomy, proportionality and minority veto’ (Lijphart, 2008, p.4). Though Lijphart’s model was used in describing power-sharing in stable but divided western democracies³⁹ (Wolff, 2006, Rothchild and Roeder, 2005), it is of ‘particular interest in Africa, which has become the arena for several types of power-sharing experiences’ (Jarstad, 2009, p.42). Recent cases in Africa include Kenya and Zimbabwe in 2008 where contested election results and ensuing violence led to elite power-sharing.

Earlier examples include agreements struck in Rwanda (1993), Somalia

38 Arend Lijphart’s ‘Consociational Democracy’ published in 1969 is often regarded as the ‘classic’ statement of consociational theory. For our purpose in this study, we refer to Lijphart (2008) which contains his articles and chapters from 1969 to 2004. See; Lijphart ( 2008).

39 The often cited examples include ethnically homogeneous but divided countries such as Cyprus, Switzerland, Austria, and the Netherlands with no cases of civil war in the recent history.

(1997), Angola (2002), and the 2003 agreements in Burundi, Comoros, DRC and Liberia.

The focus in this study is recent cases where an analysis of the impact of such agreements on SSR can be teased out. This begs the question; ‘to what extent has power sharing politics influenced police reform and wider SSR in post-conflict situations, specifically in Kenya?’ How does competitive behaviour and tensions amongst elites (Lijphart, 2008) in a power-sharing arrangement play out in reality within the context of SSR?

Does power-sharing facilitate or constrain police/SSR processes in post-conflict countries? Do the elites forming the power-sharing government accept loss of power through legitimate SSR processes?

2.5.2.3 Post-conflict Power-sharing and SSR

Recent post-conflict power-sharing arrangements include SSR as part of the agreement. In Zimbabwe for example, the Global Political Agreement (GPA) of 2008, which led to the creation of the Government of National Unity (GNU), makes explicit the recognition of the need to make the security sector part of the democratic process (Chitiyo, 2009), while Kenya’s National Accord recognizes institutional reforms, including judicial, police and civil service, as critical if the country were to remain a unified nation-state (Kanyinga, 2009).

The cases of Zimbabwe and Kenya demonstrate that while power-sharing sets the stage for ambitious reforms of the security sector, the challenges posed by the political elite, ostensibly to control the security sector remains one of the greatest threats to SSR. The structures created by power-sharing arrangements; namely coalition government, cultural autonomy, veto power and proportional representation serve to affect the undertaking of police reforms. Rather than exploit the structure to expand inclusiveness of sectors otherwise isolated before the outbreak of conflict, the political class exploit the structures to gain full control of the security sector, thus threatening the goodwill for reforms at the formative stages of power-sharing arrangement. This serves to frustrate police reforms during

the life of the power-sharing agreement. Detailed discussion on the impact of power-sharing on police reforms in Kenya is presented in Chapter 5.

2.5.3 Justice Reform in Transitional Post-conflict Societies

The ‘police–justice reform approach’ adopted in this section is in line with a holistic approach to SSR advocated for in the literature. This is bolstered by the argument ‘the population interacts most with the police in terms of contact with the justice system’ (Loh, 2010, p.6) and that an effective justice system is a prerequisite for the effectiveness of the police in the provision of order and security.

In the recent years, international aid to security sector reform, especially DfID funded programming, to post-conflict countries has incredibly assumed the format of Security and Justice Sector Reform (SJSR) combining ‘security sector reform’ (SSR) and ‘safety, security and access to justice (SSAJ)’ (Ball et al., 2007). Security and Justice Sector Reform is often used to emphasize the fact that security and justice work occurs under the same umbrella and underscores ‘the importance of a coherent strategic approach to reforming the security and justice sector’ (Ball et al., 2007 p.7).

At another level, closely linked to justice reform under the wider SSR is

‘justice sensitive security sector reform’. This relates to ‘reform initiatives within SSR programmes to address the legacy of impunity for human rights violations and the ongoing human rights violations committed by elements within the security forces’ (Davis, 2009, p.7).Unlike standard SSR processes, justice sensitive security sector reform brings to the fore the past, especially human rights abuses by ‘calling attention to the systemic causes of abuses and mobilizing support behind systemic reform efforts that address such causes, and by helping SSR programs to effectively address the legacies of such abuses’ (Mayer-Rieckh and Duthie, 2012, p.2). Efforts such as vetting are undertaken to ensure that police officers involved in human rights abuses do not hold public office

and that victims and other marginalised groups are empowered to guarantee their security and access to justice.

Despite these recognitions, literature on justice reform in post-conflict situations paint a gloomy picture. In their commissioned study to determine the quality and effectiveness of UK assistance to Security and Justice Sector Reform in Africa, Ball et al. (2007) found that ‘UK SJSR interventions have been partially effective⁴⁰ within different programmes (with the possible exception of Sierra Leone) (Ball et al., 2007, p.xi-xii).

They attribute this state of affairs to ‘the tension within DFID between the security and justice functions of policing and political environment in the host countries that in most cases is ‘not conducive to the pursuit and achievement of the desired outcomes’ (Ball et al., 2007). Whilst the former is essentially a donor problem, the latter reflects the challenges often associated with post-conflict situations which hardly support justice reform and often reflect priority choice for security functions of policing rather than the justice functions of policing.

Davis (2009), in a study to recommend ways in which the EU may incorporate justice-sensitive reform initiatives within SSR programmes in the DRC, found that SSR initiatives and power-sharing arrangements in the DRC often failed to include justice reform, or included it later,⁴¹ deliberately for fear of bringing human rights abusers into accountability.

In the study, women bear the greatest brunt of ‘human rights violations (such as arbitrary killing, illegal detention and extortion) at the hands of security agents’ (Davis, 2009, p.21) yet obstacles for women seeking justice remain high. Where individuals are found guilty, they either

‘escape’ and or ‘remain at large’. This situation therefore denies segments of the society opportunity to fully participate in country specific SSR initiatives.

40 ‘Partial effectiveness’ means that programmes generate some useful outcomes but cannot produce a multiplier effect Ball et al., (2007).

41 The Security Sector Roundtable of 2007, bringing together Congolese and international stakeholders on SSR for example only tabled army and police reform.

Justice system reform was added later in February 2008.

How does police reform integrate with justice reform in post-conflict countries? While the two invariably need to proceed together, and that SSR framework strongly anticipates close coordination between police and justice reform, literature suggests that this is not always the case. In the case of Kenya, reforms in the judiciary picked up faster as opposed to the police which was bogged by lots of controversies. This study investigates police reform and explores the extent to which justice reform proceeded alongside police reform in Kenya.