A Choice for Peace? The Story ofForty-One Days of Mediation in Kenya

AUGUST 2009

I N T E RNAT I ONA L P EAC E I N S T I T U T E

Elisabeth Lindenmayer and Josie Lianna Kaye

Cover Photo: Kenyan President Mwai

Kibaki (left) and opposition leader

Raila Odinga (right) sign documents

detailing a power-sharing deal while

former UN Secretary-General Kofi

Annan and former Tanzanian

President Benjamin Mkapa look on.

Nairobi, Kenya, February 28, 2008.

©Stephen Morrison/epa/Corbis

The views expressed in this paper

represent those of the authors and

not necessarily those of IPI. IPI

welcomes consideration of a wide

range of perspectives in the pursuit

of a well-informed debate on critical

policies and issues in international

affairs.

IPI

Edward C. Luck, Senior VicePresident and Director of Studies

Marilyn Messer, Special Assistant tothe Senior Vice President andDirector of Studies

Adam Lupel, Editor

Ellie B. Hearne, Publications Officer

Suggested Citation:

Elisabeth Lindenmayer and Josie

Lianna Kaye, “A Choice for Peace?

The Story of Forty-One Days of

Mediation in Kenya,” New York:

International Peace Institute, August

2009.

© by International Peace Institute,

2009

All Rights Reserved

www.ipinst.org

ABOUT THE AUTHORS

ELISABETH LINDENMAYER is Director of the United

Nations Studies Program (UNSP) at Columbia University’s

School of International and Public Affairs (SIPA).

JOSIE LIANNA KAYE is Assistant Director at the Center for

International Conflict Resolution (CICR), also at SIPA

ACKNOWLEDGEMENTS

This paper is the outcome of a research project initiated by

the United Nations Studies Program (UNSP) at Columbia

University's School of International and Public Affairs

(SIPA).

The authors owe very special thanks to Margaret Vogt,

Deputy Director, Africa I Division of the United Nations

Department of Political Affairs (UNDPA), and Luc Ngowet,

Political Affairs Officer, Africa I Division, UNDPA.

Thanks are also due to Nana Effah-Apenteng, Chief of Staff

of the Panel’s Secretariat; Anna Tibaijuka, Executive

Director, UN Habitat and Director-General, United Nations

Office at Nairobi (UNON); Martin Griffiths, Director, Centre

for Humanitarian Dialogue (HD Centre); Michèle Griffin,

Mediation Support Unit, UNDPA; Craig Jenness, Director,

Electoral Assistance Division, UNDPA; Fiona Lortan,

Representative of the African Union to the Panel, Nairobi;

David Lambo, Former UNHCR Official, Senior Adviser at

the HD Center; Elizabeth Moorthy, Political Affairs Officer,

UNDPA; Meredith Preston McGhie, HD Centre; Deryck Fritz,

Senior Political Affairs Officer, Electoral Assistance Division,

UNDPA; Jackie Klopp, Acting Director of Economic and

Political Affairs, SIPA; Teohna Williams, SIPA; Divya D.

Khosla, SIPA; Yata Penda Mboup Kande, SIPA; and Luke

Croll, Editor, English Language Unit, Translation and

Editorial Section, Division of Conference Service, UNON.

CONTENTS

Preface, Edward C. Luck . . . . . . . . . . . . . . . . . . . . . . . . iii

Acronyms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv

Executive Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

The Election Crisis. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

VIOLENCE ESCALATES

LAYING THE GROUNDWORK

THE ROLE OF THE AFRICAN UNION

Seizing Opportunities for Peace . . . . . . . . . . . . . . . . . 7

THE MEDIATION BEGINS

RAPID PROGRESS ON THE “ROAD MAP”

DELAYS ON AGENDA ITEM THREE:HOW TO RESOLVE THE POLITICAL CRISIS

THE KAMUKUNJI

Negotiations in Crisis . . . . . . . . . . . . . . . . . . . . . . . . . . 15

THE RETREAT: MEDIA BLACKOUT

STALEMATE IN NAIROBI

PEACE TALKS “SUSPENDED”

An Agreement is Reached . . . . . . . . . . . . . . . . . . . . . . 21

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Further Reading. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Elisabeth Lindenmayer and Josie Lianna Kaye iii

Preface

The International Peace Institute (IPI) is pleased to have the opportunity to publish this detailed narrativeaccount of the efforts to mediate the deadly postelection dispute in Kenya in early 2008. This story remainstimely, more than a year after the completion of the able mediation efforts led by former United NationsSecretary-General Kofi Annan, for two primary reasons. One, the parties still have not fulfilled all of the commit-ments undertaken at that time, and the possibility of a return to violent confrontation remains all too real. As themediators would be the first to acknowledge, the hard work in Kenya has just begun. Two, it is important toremind the international community that it required the focused engagement of influential regional and globalplayers to push and cajole the parties to make the concessions necessary for a successful mediation effort. Asskilled and determined as the mediators were, their work needed the active political support and involvement ofkey actors in Africa and far beyond at critical junctures. Neighbors, donors, and others helped to shape theperceptions and expectations of the parties and hence their degree of flexibility at the negotiating table.

I am confident, as well, that this account of efforts to resolve the conflict has wider and longer-range lessonsthat could benefit scholars, policy analysts, and policymakers alike. Though the global-regional partnership didnot always unfold with optimal precision, on the whole the mediation effort was an encouraging example of thepotential for constructive cooperation between the United Nations and the African Union on an urgent andsensitive matter. As the authors point out, the AU showed some agility in responding in a relatively timely andeffective manner. The United Nations, rather than competing for glory or headlines, provided quiet but essentialpolitical support and capacity building for the AU-led effort. When UN Secretary-General Ban Ki-moon traveledto the AU Summit in Addis Ababa and then met with the parties in Kenya, his message reinforced that of hispredecessor at the UN, who was leading the day-to-day work on the ground. No doubt this was what the foundershad in mind when they drafted Chapter VIII of the Charter on regional arrangements. As Article 52(2)emphasizes, “every effort” should be made “to achieve pacific settlement of local disputes through such regionalarrangements or by such regional agencies before referring them to the Security Council.”

The Kenya situation was the first instance in which the United Nations employed a responsibility to protect(RtoP) lens in shaping its responses to an ongoing crisis. The Secretary-General decided, following considerationby the Policy Committee, that the world body’s first goal in Kenya should be to prevent the further commissionor incitement of RtoP crimes and violations—genocide, war crimes, ethnic cleansing, and crimes againsthumanity. As Kofi Annan has since related, he adopted the same perspective in his mediation work there. Ofparticular concern, given the escalating violence, were possible acts of ethnic cleansing or crimes againsthumanity. Their warnings against further incitement appear to have had a positive effect, and the violence didsubside markedly as the mediation gained momentum. In his report on Implementing the Responsibility to Protect(UN Doc. A/63/677 of January 12, 2009), Secretary-General Ban Ki-moon has called for the preparation ofauthoritative lessons-learned, good/best practices studies. As his Special Adviser for these matters, I can person-ally attest to the value of detailed case studies, such as this one, even though its scope is far broader than RtoP.

Neither the authors nor IPI, however, see the value of this paper primarily in terms of its analytical content. Theauthors do draw some sensible lessons, but their emphasis is on telling the story of the mediation effort in astraightforward and careful manner. In doing so, they provide a wealth of material on which scholars, policyanalysts, and policymakers can draw in the months and years to come.

Dr. Edward C. LuckSenior Vice President and Director of StudiesInternational Peace Institute

iv FORTY-ONE DAYS OF MEDIATION IN KENYA

Acronyms

AU African Union

DPA/UNDPA United Nations Department of Political Affairs

ECK Electoral Commission of Kenya

HD Centre Centre for Humanitarian Dialogue

IGAD Intergovernmental Authority on Development

KRC Kenya Red Cross Society

ODM Orange Democratic Movement

PNU orGoK/PNU Government of Kenya’s Party of National Unity

RtoP responsibility to protect

SIPA Columbia University School of International and Public Affairs

UN United Nations

UNDP United Nations Development Programme

UNON United Nations Office in Nairobi

UNSP United Nations Studies Program

Elisabeth Lindenmayer and Josie Lianna Kaye 1

Executive Summary1

The postelection violence that erupted in Kenya inDecember 2007 resulted in the deaths of over onethousand people and left three hundred thousandpeople displaced. While catastrophic, the scale ofthe social and economic destruction, not tomention the loss of life, could have been muchgreater were it not for the peace mediationmandated by the African Union in January 2008.The Panel of Eminent African Personalities, chairedby former UN Secretary-General Kofi Annan, ledthe forty-one-day peace process, culminating in theAgreement on the Principles of Partnership of theCoalition Government, which was signed byPresident Mwai Kibaki and the Honorable RailaOdinga on February 28th, putting an end to thecrisis which engulfed the nation and took the worldby surprise.This paper gives a detailed account of the events

which led up to this agreement. It pays particularattention to the factors that made Kenya acceptinternational mediation, and it concentrates on therole and comparative advantages of the AfricanUnion, as well as the unique and undivided supportof the many stakeholders, including the interna-tional community. More specifically, the paperdiscusses the inclusion of a prime minister in thecoalition government, as well as the role andresponsibilities that the government shouldassume. The paper also describes the series ofconflict-resolution strategies and tools used by thePanel, and it provides a set of conclusions andrecommendations that reflect what kinds of lessonscan be learned from this case of successfulmediation. These include the benefits of a singlemediation fully supported by the internationalcommunity; strong engagement by civil society; adivision of issues to be negotiated into short- andlong-term categories; a carefully orchestratedmedia strategy; a strong emphasis on pragmatismover politics; an understanding of peace as aprocess, rather than an event; and a high level ofcreativity and flexibility on the part of themediators. Above all, the agreement which wasnegotiated reflected the desire of the Kenyan people

to achieve peace in their country; its sustainability,however, will depend on their ability to address theroot causes of the conflict and to tackle theunderlying and deep-seated issues which triggeredthe crisis in the first place.

IntroductionAt the heart of the successful forty-one-daymediation process in Kenya was the realization thatthis was a crisis that the world could not afford toignore. For chief mediator Kofi Annan, however—making reference to the Chinese characters whichmake up the word—a crisis presents us with bothdanger and opportunity. On the one hand, thedanger was that this East African nation, previouslyperceived as an island of political and economicstability and an essential hub for internationalactivity, would allow the election crisis of 2007 todeteriorate into a catastrophic civil war alongethnic lines; as messages of hate penetrated theradio waves and a church full of fleeing women andchildren went up in flames, the echoes of Rwandaand Côte d'Ivoire made this danger a very real one.The opportunity, on the other hand, was that thecrisis could be used to actually address deeplyrooted problems: the simmering grievances,repeated ethnic migrations, and the cycles ofdispossession which have characterized Kenya’scolonial and postcolonial years. This was indeed anopportunity to create a political system which couldattempt to address the vast disparities in wealth andthe endemic sense of marginalization.The mediation process, which began on January

22, 2008, three weeks after the postelection violenceerupted across Kenya, was led by the Panel ofEminent African Personalities,2 consisting offormer President Benjamin Mkapa of Tanzania,former South African First Lady Graça Machel, andformer UN Secretary-General Kofi Annan asChairperson. The Panel was charged with helpingthe parties to the conflict ensure that an escalationof the crisis was avoided and that the opportunity tobring about a sustainable peace was seized as soonas possible. The unique team was mandated by theAfrican Union (AU), relied on worldwide

1 This paper forms part of an in-depth academic case study that Kofi Annan requested from Columbia University’s United Nations Studies Program (UNSP) at theSchool of International and Public Affairs (SIPA). To that effect, Elisabeth Lindenmayer, then Acting Director of the UNSP, traveled to Kenya in February 2008 withthe logistical and financial support of the Mediation Support Unit (MSU) at the UN Department of Political Affairs (UNDPA). Josie Lianna Kaye traveled with heras her Research Assistant.

2 From here onward, the Panel of Eminent African Personalities shall be referred to as “the Panel.”

diplomatic support, and had the technical supportof the United Nations, including the Department ofPolitical Affairs (DPA), the United NationsDevelopment Programme (UNDP), and UnitedNations Office in Nairobi (UNON), as well as theGeneva-based Centre for Humanitarian Dialogue(HD Centre).On February 28, 2008, after six weeks of intense

negotiations between the opposition OrangeDemocratic Movement (ODM) and theGovernment of Kenya’s Party of National Unity(GoK/PNU) and a five-hour “end-game” with theprincipals, President Mwai Kibaki and theHonorable Raila Odinga, an Agreement on thePrinciples of Partnership of the CoalitionGovernment was signed. For many, this was atriumph of African diplomacy, for some, it was thefirst realization of the international community’s“responsibility to protect” (RtoP), enshrined in the2005 World Summit Outcome Document,3 whilefor others, it was the avoidance of another genocideon African soil. It is impossible to know in exactterms what was prevented or what might have been,but all the warning signals indicate that a failure tosolve this crisis may have resulted in significantlymore violence, bloodshed, and loss of life, withhuge implications for the entire region.The purpose of this case study is to give an

account of the mediation in order to attempt tounderstand its success and extricate lessonslearned: why was the forty-one-day peace processbrokered by the Annan-led panel successful inbringing an end to the conflict? The constellation ofthe personalities involved and the way in whichevents unfolded give the impression that themediation in Kenya was a unique case; the questionmust be asked, however, does this mean that thesuccess cannot be replicated elsewhere, that lessonscannot be learned and applied to other peaceprocesses? Dissociating context from strategy inorder to extricate useful tools is an essential task forthe ever-growing field of peace, mediation studies,and practice. This paper does not seek to analyze

the root causes of the conflict or to analyze thenature of the violence which erupted throughoutKenya in late 20074; the purpose of this paper israther to give a detailed description of the forty-one-day mediation process with a view to gaining abetter understanding of the mediation strategiesused, and to what effect.

The Election CrisisThe 2007 elections in Kenya were the fourth sincethe country’s return to multiparty politics in 1992.There were 108 parties vying for 210 seats at theparliamentary level, with three major candidates atthe presidential level: Mwai Kibaki representing thePNU, Raila Odinga representing ODM, and formerForeign Minister Kalonzo Musyoka representingODM-Kenya. When the presidential electionresults announced by the Electoral Commission ofKenya (ECK) indicated both a rapid disintegrationof Odinga’s large lead and a 2.5 percent marginbetween the two leading candidates, Odinga andKibaki, suspicions of tampering were high—notleast because the opposition had won ninety-nineseats at the parliamentary level to the PNU’s forty-three. Most international observers noted that therehad been definite irregularities in the tabulation ofthe presidential vote and in reporting the tabulationof the vote, even though the conduct of the ECKduring a large portion of the electoral process hadnot raised serious concerns.5 In any event, it isquestionable whether either side could have wonthe majority needed to govern Kenya alone.While this was not the first time in Kenya’s

history that elections had been accompanied byviolence, it was certainly the first time that theviolence had been so severe, widespread, and withsuch devastating consequences. More than 1,000people are thought to have died and at least 600,000were displaced, with disastrous consequences forthe economy, especially due to the hard-hit touristindustry.6 While initially the perception was thatthose from Kibaki’s Kikuyu ethnic group in the RiftValley, especially in the town of Kisumu, were the

2 FORTY-ONE DAYS OF MEDIATION IN KENYA

3 See United Nations, 2005 World Summit Outcome, UN Doc. A/RES/60/1, October 24, 2005, paras. 138 and 139; Roger Cohen, “How Kofi Annan Rescued Kenya,”The New York Review of Books 55, no. 3 (August 14, 2008); and United Nations Secretary-General, Implementing the Responsibility to Protect, UN Doc. A/63/677,January 12, 2009.

4 This is the subject of a paper currently under preparation by UNSP.5 Joel D. Barkan, “Hearing on the Immediate and Underlying Causes and Consequences of Flawed Democracy in Kenya,” Testimony, Prepared for the Senate ForeignRelations Committee’s Subcommittee on African Affairs, February 7, 2008, p. 3.

6 Sheila Mwiandi, "Moving Beyond Relief: The Challenges of Settling Kenya's Internally Displaced," USIP Peace Briefing (Washington, DC: USIP, August 2008),available at www.usip.org/resources/moving-beyond-relief-the-challenges-settling-kenyas-internally-displaced .

main targets of the violence, victims came from atleast four other ethnic groups: the Luo (in Nairobi),the Kalenjin (in Nakuru and Naivasha), and theLuhya and Kisii in less concentrated groups acrossthe country.7 The violence often took on theappearance of being ethnic in nature, but much ofthe violence in the slums around Nairobi was alsomotivated by poverty and unemployment, andsome may simply have been undertaken by easilymanipulated young people and criminal groupsthat had nothing to lose from engaging in andsustaining the violence.VIOLENCE ESCALATES

Reports began emerging early on of killings,widespread looting, and the burning of property.8As time went on, massacres, sexual violence,beatings, intimidation, and threats were alsoreported.9 The violence that broke out following theannouncement of election results appeared to bespontaneous and motivated by a sense of injusticeat the apparent discrepancies between the expectedand actual outcomes of the election, but time andhindsight revealed very different roots andmanifestations.10 The election, however, wascertainly the trigger: there was an overwhelmingperception that the elections had been rigged andthat, combined with a lack of faith in the ethnicneutrality of the government, caused somemembers of communities around the country toturn to violence. Basic trust in state institutions hadbeen eroded by decades of discontent with disparityand impunity, and heightened by the collapse of themultiethnic National Alliance Rainbow Coalition(NARC), the country’s most recent attempt atinclusion and reform which did not stand the test oftime. Within minutes of the announcement of theresults, incidences of violence were reported,especially in the Rift Valley, where the perception ofexclusion was at its strongest. There seemed to be asense that the system could only produce anethnically biased outcome, and that the elections

were not going to change the status quo. ByDecember 31, 2007, just three days after the resultshad been announced, at least fifteen people werealready confirmed dead.11

Not all of the violence, however, was a sponta-neous reaction to unjust processes. Inquiriesundertaken by human-rights bodies such asHuman Rights Watch revealed that much of it wasorganized in nature.12 Well-known gangs that hadbeen financed and organized by business andpolitical groups in previous elections, such as theMungiki, were apparently being armed withmachetes and other weapons before the electionsand later, even as negotiations began.13 TheMungiki, drawn from a Kikuyu base, which has areputation for using brutal methods of instillingterror and a long history of violence dating back tothe 1980s,14 appears to have received support fromelite members of Kenyan society and to have beenprepared for the violence ahead of time. Non-Kikuyu gangs such as the so-called “Taliban” and“Baghdad Boys”—largely Luo-based—and theSaboat Land Defence Force of generally Kisii originwere also responsible for some of the moreorganized violence,15 drawing on the large numbersof unemployed and disenfranchised youths. Whenthe election results were announced, live broadcastsof the inconsistencies between the numbersannounced at the central level and those at the locallevel, accompanied by hate speech on vernacularradio16 targeting various ethnic groups, helpedspread the message and the violence. By January15th, over 500 people were dead and more than250,000 displaced.What might have been small-scale—albeit

organized and brutal—gang violence, accompaniedby incidences of postelection, public, spontaneousrage revealed itself to run much deeper and resultedin much more pervasive patterns of violence. Thescale of the violence reflected long-held grievancescombined with severe poverty: according to the

Elisabeth Lindenmayer and Josie Lianna Kaye 3

7 Ibid., p. 4.8 Jeffrey Gettleman, “Disputed Vote Plunges Kenya into Bloodshed,” New York Times, December 31, 2007, p. 1.9 Human Rights Watch, “Ballots to Bullets: Organized Political Violence and Kenya’s Crisis of Governance,” (New York, March 2008).10 Ibid.11 Gettleman, “Disputed Vote Plunges Kenya into Bloodshed,” p. 1.12 Ibid.13 IRIN News, "Kenya: Armed and Dangerous," February 22, 2008, available at www.irinnews.org/Report.aspx?ReportId=76896 .14 Ibid.15 Ibid.16 BBC News, “Kenya to Probe Hate Speech,” February 14, 2008, available at http://news.bbc.co.uk/2/hi/africa/7245319.stm .

2004-2008 UN Development AssistanceFramework, 56 percent of the population is livingin poverty.17 Control of resources and control ofgovernment are perceived as going hand in hand,and given that government has traditionally beencontrolled by one ethnic group (to the detriment ofothers), poverty is often aligned with ethnicity.Resentment runs high over land ownership andland use, and is aggravated further by high levels ofunemployment, especially among the youth.Violence was conducted, therefore, primarily alongethnic lines, motivated by the endemic sense ofmarginalization; retaliatory violence made thenumbers of dead and injured rise even more. Andlastly, the police were accused of excessive use ofviolence in response to public demonstrations andlooting, resulting in even more deaths. The violencecontinued until early February 2008, by which time1,000 people were thought to have died.18

The violence, therefore, must be understoodwithin the historical framework of exclusion andmarginalization that has permeated political life inKenya, both during and since colonial times. Insummary, the elections were a catalyst for anexplosion of discontent and resentment due to thepolitics of dispossession which have left themajority of the youth unemployed, 60 percent ofthe population living on less than $1 a day, and themajority of the country’s most fertile land in thehands of the families of the political and businesselite. The country may have had one of the mostthriving economies, largest tourist industries, andmost active business circles in Africa, but thebenefits were certainly not shared fairly among thepopulation. Odinga launched his electoralcampaign promising much-needed change;whether or not this promise would have beenfulfilled had he become president, the violence wasa response to frustration with what appeared to bean imposition of the unstable and explosive statusquo which was sentencing the majority to a life ofpoverty.When the Panel arrived in Nairobi the situation

on the ground was serious, verging on catastrophic;the country collectively held its breath in suspense,

waiting for peace to return. Violence continued toescalate and, when mourners clashed with police, itbecame clear that even prayer ceremonies for thosealready killed did not provide peaceful respite fromthe mounting instability.19 Thousands of peoplewere trapped in Kibera without access to medicalaid, houses in the Rift Valley continued to besubjected to arson attacks, and gangs which hadbeen operating largely underground reemerged inNairobi to offer protection to slum-dwellers livingin fear. As students and teachers alike fled to saferareas, with many victims forced to live under tents,international airlines cut the number of flights toNairobi almost by half in response to the sharpdrop in tourism, a terrible blow to the Kenyaneconomy. Furthermore, the region was also severelyaffected due to road blocks put in place on themajor transit routes, thereby causing a hugeincrease in the price of wheat and other staples.Kibaki and Odinga, however, continued to refuse

to engage in dialogue—the former insisted upon hisrightful place as President of Kenya, who wouldmanage this crisis internally, while the latter statedthat the election had been rigged and his win stolenaway. And yet, forty-one days later, the violence wasso scarce it barely made the newspapers, touristswere beginning to trickle back into the country, thetwo leaders had agreed to share power, and thepeople of Kenya appeared to breathe easily again.So, what happened in those forty-one days to bringabout the peace agreement in Kenya? And whatstrategies helped move the process forwardconstructively in spite of the initial divergences andextreme opposition to an internationalization of theconflict?LAYING THE GROUNDWORK

Though less conclusive, the mediation effortspreceding the Panel’s engagement providedessential building blocks for the mediation strategythat followed. On January 2, 2008, just days afterviolence erupted across the country, Nobel PeaceLaureate Archbishop Desmond Tutu became thefirst senior mediator to arrive on the scene. Hisefforts were undertaken amid flying accusations ofvote rigging on behalf of the PNU and of “ethnic

4 FORTY-ONE DAYS OF MEDIATION IN KENYA

17 United Nations, “United Nations Development Assistance Framework: Kenya (2004-2008),” (Nairobi: United Nations Country Team, June 2003), available atwww.un-kenya.org/UNDAF%202004-2008.pdf .

18 BBC News, “Kenya to Probe Hate Speech.”19 Dave Opiyo and Odhiambo Orlale, "Mourners and Police Fight it Out in the City as ODM Prays for Killed Protesters," Daily Nation, January 24, 2008.

cleansing” on behalf of the ODM and itssupporters. The scale of the crisis was, at this point,still unclear, and Kibaki was intent on control byforce and determination, flooding the streets withsecurity forces, and issuing a ban on mediabroadcasts. Despite his impressive moral authority,Desmond Tutu’s intervention could not havechanged the fact that the moment for engagementwas simply “unripe”: seemingly biding his time,Odinga refused to engage in dialogue, while Kibakiwas adamant that the only recourse for the opposi-tion was through the courts, a lengthy processinvolving a system dominated by government allieswhich, it was perceived, was unlikely to result inany “just” outcome. Desmond Tutu’s brief attemptat mediating was frustrated by two leaders whowere yet to accept that their political futuresdepended on their ability to work together andshare power, not least because neither appeared toenjoy support of the majority within the country.In the face of escalating violence, other mediators

also began rushing to the scene. Multiple andparallel mediations, in what appeared to create thepossibility of “mediator shopping” for the mostfavorable outcome, complicated the subsequentattempts to find a diplomatic solution. US AssistantSecretary of State for African Affairs, JendayiFrazier, arrived shortly after Desmond Tutu onJanuary 4th. She was closely followed on January8th by four former heads of state, Tanzania'sBenjamin Mkapa, Mozambique's JoachimChissano, Botswana's Katumile Masire, andZambia's Kenneth Kaunda, who immediatelytraveled with Frazier to Eldoret to meet withresidents whose lives had been devastated by thepostelection violence. African Union Chairmanand Ghanaian President, John Kufuor, also thenarrived in Kenya at the invitation of PresidentKibaki, coinciding with the arrival of the fourformer heads of state. In his capacity as Chairmanof the Heads of State Summit of the East AfricanCommunity, Uganda’s President Yoweri Museveniarrived on a two-day official visit on January 22nd,the same day the Panel-led mediation began.While the various attempts at mediation all

appeared to contribute to the overall international

efforts, individually their “success” remainedlimited. Despite numerous indications frominternational observers that the election fraud wasdominated by actions on the GoK/PNU side,Frazier’s apparent apportioning of blame equally toboth sides seemed to make her less appealing as amediator in the eyes of the ODM, who wereinsistent that the vote had been stolen from them.Her ten-day stay—despite her otherwisecommendable efforts—was inconclusive, and sheleft Kenya shortly thereafter, but not before writinga strongly worded and very personal letterdescribing her “disappointment” at the parties’inability to reach anything resembling compromise.Similarly, the intervention of four former heads ofstate—albeit a very laudable response to theescalating events on the ground—only added to theplethora of options available to the government,thereby multiplying both the channels ofcommunication and the possibilities for stalling anyreal efforts toward peace. The four former heads ofstate carried with them their moral authority andrespect of both parties, and, as part of an Africanintervention, were seen as more acceptable in theeyes of a government still intent on resisting“internationalization”; however, it is questionablewhether they simply lacked the time and resourcesto find a meaningful way out of the crisis especiallyas Kibaki was intent on exploring the multipleoptions still available to him.During this time of heightened tension, an

advance team comprised of the Commissioner ofPeace and Security and the Ghanaian ambassadorto the AU, came to prepare the ground for the AUmediation efforts led by Kufuor. While the govern-ment seemed to be pursuing potentially morefavorable options with the US—who appeared tohave more to offer in terms of “carrots and sticks”and, perhaps, more to gain or lose in terms of its“war on terrorism”20—it gave a cold reception to theAU team and insisted that “there was no crisis” tobe managed. While failing to bring the partiesphysically together, Kufuor, following his two-dayengagement at Kibaki’s request—which hadinvolved a meeting with Kibaki at the President’sresidence, State House, and another with Odinga at

Elisabeth Lindenmayer and Josie Lianna Kaye 5

20 Kenya and the US have a long-standing history of cooperation on the “war on terrorism,” dating back to the bombings of the US Embassy in Nairobi in 1998,which were blamed on Osama bin Laden. Following the September 11, 2001, attacks and the attacks on Paradise Hotel in Mombassa—a key target city due to thehigh numbers of tourists and the very visible presence of US naval vessels—this partnership grew stronger. In light of the instability of surrounding countries,Kenya has remained a stronghold for the US in its fight against al-Qaida.

the Inter-Continental Hotel—left Kenya stating thatat least both sides had agreed “there should be anend to the violence, and they also agreed [that]there should be dialogue,”21 to be coordinated by aPanel of Eminent African Personalities. PresidentMuseveni’s engagement, the last before the Panelwas accepted as the only official mediation option,was strongly encouraged by the GoK/PNU and lessfavored by the ODM. Museveni accompaniedKibaki to State House the very day the Panel beganits efforts for official talks. This appeared to be a lastattempt on the part of the Kenyan government toresist “internationalization” and coincided withanother, less publicized, attempt at mediation inwhich Kibaki sent Foreign Affairs Minister RaphaelTuju to meet with Rwandan President Paul Kagame.These mediation efforts were met with unilateral

actions on behalf of both leaders at differentmoments, actions that proved they were yet to agreeon the need for mediation at all, let alone on whothat mediator would be. While appearing to offerhope for a government of national unity with onehand, Kibaki seemed to be working to prevent itwith the other: on the day Kufuor arrived, heappointed Kalonzo Musyoka as his VicePresident—Musyoka, according to the ECK results,came in third in the presidential election—andfilled sixteen other ministerial positions in hiscabinet. This provocative move left very little roomfor ODM positions in the proposed “Governmentof National Unity” and created a central-easternalliance which excluded everyone else.22 This actionfurther fueled violence in the Rift Valley, whicherupted again in protest at these exclusionarymoves. As the death toll rose, the ODM called formore protests against the government as well asinternational sanctions, thereby amplifying itsdouble-edged strategy of using protests andinternational attention to give weight to its causeand strength to its position before going to thenegotiating table. The government, however,continued to play down the need for internationalmediation, most likely realizing that mediationmeant compromise, and compromise meantrelinquishing power.These interventions may appear to some to have

been failures, but in fact they provided the Panel led

by Kofi Annan with important ground on which tobuild the strategy and insights that proved essentialfor the way ahead. First, Annan would insist thatthere would be one mediation and one mediationonly; there could be no possibility for alternatives ifthe compromise being proposed did not suit theparties to the conflict. The previous absence ofcoordination in the first few weeks of crisis, evenamong African actors who rushed to the scene withnoble intentions but not enough tools or resourcesat their disposal, could not be repeated; thereshould be no interference in the mediation and themediator would decide whom to ask for supportand when. This point was stated clearly by Annanon multiple occasions. Secondly, certainly neverexplicitly stated, but implied by the previousmediation attempts, was the understanding that themediator had to be someone who could not onlybring enough moral authority to be respected, butalso enough political “carrots and sticks” to be ofinterest to the parties. The initial appearance of apreference for a US mediation over an AU oneseemed to be informed by the reality of powerpolitics and the desire for a mediator who couldbring economic incentives to the table. Even if toomuch US influence risked being dismissed bygovernments too quick to jump on the anti-imperi-alist bandwagon, US influence was going to be anessential part of the puzzle. According to the DPAteam, the ODM had a very clear preference for UN-led mediation, so finding the balance between thesepreferences would be paramount. Lastly, theoverwhelming interest and engagement of theAfrican continent in coming to the aid of Kenyaindicated there was enough will and skill to find anAfrican solution to an African problem.THE ROLE OF THE AFRICAN UNION

Moves by the AU to engage in the crisis wereundertaken just days after it erupted. WhenKufuor’s own efforts and those of the preparatoryteam he had sent to Nairobi proved to be inconclu-sive, he personally wrote a letter to Kofi Annan,asking him to take on the role of AU SpecialAdviser and Chief Mediator of the Panel for theforthcoming mediation process. The decisivenature of this engagement was a crucial factor inavoiding further deterioration of the situation.

6 FORTY-ONE DAYS OF MEDIATION IN KENYA

21 BBC News, “Kenya Crisis Talks End in Failure,” January 10, 2008, available at http://news.bbc.co.uk/1/hi/world/africa/7181184.stm .22 Joel D. Barkan, “Breaking the Stalemate in Kenya,” Online Africa Policy Forum, January 8, 2008, available at http://forums.csis.org/africa/?cat=7 .

Given the situation on the ground, time was clearlyof the essence.While within the Charter of the United Nations

there is an explicit provision against interference inthe domestic affairs of member states—except inthe case of enforcement measures under ChapterVII—the Constitutive Act of the African Union hasadopted a wider field of engagement options, frommediation to using force to intervene in specificcircumstances. Article 4(h) of the Constitutive Actspecifies “the right of the Union to intervene in aMember State pursuant to a decision of theAssembly in respect of grave circumstances,namely: war crimes, genocide and crimes againsthumanity.”One of the principal objectives of the AU, stated in

Article 3(e) of the Constitutive Act, is to “encourageinternational cooperation, taking due account of theCharter of the United Nations and the UniversalDeclaration of Human Rights.” While Article 53(1)of the UN Charter requires that any enforcementaction by regional arrangements be authorized bythe Security Council, Article 52(2) encouragesregional organizations to “make every effort toachieve pacific settlement of local disputes throughsuch regional arrangements or by such regionalagencies before referring them to the SecurityCouncil.” Given that Kenya was not an “enforcementaction,” the AU was well-placed to act quickly andwith the implicit support of the UN Charter. Due tothe regional impact that the crisis was havingalready, and the catastrophic consequences thatwould have followed its spiraling out of control,there was undoubtedly a need for speedy action.

Seizing Opportunities forPeaceTHE MEDIATION BEGINS

Kufuor’s23 selection of Annan to lead the AU-mandated mediation process, which wasannounced publicly on January 10th, was nothingless than an “inspired choice.”24 With years ofmediation experience, an internationally renownedfigure with moral authority and a strong politicalreputation, Annan combines extensive politicalexperience and unique negotiating skills with the

ability to bring a wide pool of contacts to thenegotiating table. There was a strong personalmotivation for Annan also; given that he played alarge role in the formulation of the concept of RtoP,launched at the World Summit of 2005, he hadmany reasons to prove that the promise of “neveragain” was more than an empty phrase spoken bythe international community. Furthermore, havingwitnessed a number of tragedies in his UN careerboth as Under-Secretary General for PeacekeepingOperations and as Secretary-General, he was wellaware of the implications another crisis would havefor East Africa and the continent as a whole. He felta moral obligation to do whatever he could toprevent the country from spiraling out of control.Combined with Graça Machel and PresidentMkapa, the composition of the Panel of EminentAfrican Personalities certainly did not fall short ofexpectations.While the country and those watching held their

breath as Annan was rushed to hospital with a feveron January 16th—the very day he was due to fly toKenya—the week-long delay may actually haveproved to be a three-fold blessing in disguise. Fromhis hospital bed, the week provided an opportunityfor Annan to lay a solid foundation for what wouldbecome one of the central components of hisstrategy: a single mediation, as well as the full,undivided support of the international community.He would only begin work once a unified supportbase had been formed, relying especially onprominent African figures, the US, and keyEuropean actors. This time in the hospital allowedhim to speak extensively with leaders and keypolitical actors around the world to bolster supportfor the process he was about to embark upon.Part of his strategy was also to have an inclusive

and transparent process, involving civil society—including religious leaders, women’s groups, andrepresentatives from the world of business—and tothat end the week’s delay also provided an opportu-nity to organize meetings with these groups for hisarrival and to keep them engaged until the veryend. Civil society was pivotal in creating anenvironment that was favorable for negotiations.The media, led by the Kenya Editors Guild, forexample, apart from keeping the public well

Elisabeth Lindenmayer and Josie Lianna Kaye 7

23 John Kufuor was Chairperson of the African Union at the beginning of the mediation process.24 Personal interview with Margaret Vogt, Deputy Director of Africa I Division, UN Department of Political Affairs, New York, March 13, 2008.

informed at every stage of developments within thepeace process, also reacted forcefully against themedia ban on live broadcasts, giving the govern-ment twenty-four hours to lift the ban,25 and choseto defy the ban when their demands were not met.On December 31st, just days after the violence haderupted, a group of prominent members of civilsociety launched Concerned Citizens for Peace, amultilevel peace initiative which became a rallyingpoint for peace activists and an interlocutor withinthe peace process. Similarly, religious groups andbusiness leaders rallied for a halt to the violence,condemning the polarization of Kenyan society andcalling on the leaders to work together for peace.While the Panel was active in approachingmembers of civil society for their support, theNational Council of Churches of Kenya actuallyapproached the mediation team to plead for anegotiated solution, and was vocal in urging Kibakiand Odinga to enter into direct talks. The Panelwould draw upon these efforts to move the partiescloser to negotiation and to ensure that when theysaid they were speaking with one voice, it includednot only members of the international community,but also grassroots voices from Kenyan society.The week-long delay also allowed more time for

the formation of the secretariat in Nairobi whichwould give technical support to the Panel during itswork, ensuring that all necessary resources were inplace for Annan’s arrival; the secretariat was able,however, to fully solidify its working methods onlyupon the arrival of Annan and the rest of the Panel.Furthermore, ever-changing dynamics on theground contributed to the perception of a “hurtingstalemate” whereby it was increasingly accepted byboth parties that dialogue was the only wayforward. On the ODM side, the nomination inParliament of ODM candidate Kenneth Marendeover PNU candidate Francis Kaparo as speaker, andODM candidate FarahMaalim over PNU candidateGitobu Imamyara as deputy speaker, helpedOdinga go to the negotiating table in a strongerposition. On the GoK/PNU side, the rising numberof deaths and increasing numbers of accusations ofpolice brutality made it impossible to continueinsisting that the country was not in crisis.Dialogue would be necessary in order to avoid the

ever-growing possibility of an outbreak of civil war.While the need for dialogue was accepted by both

sides, there were stark differences over theconditions of entry and the expectations ofoutcome. Upon Annan’s arrival on January 22ndand in separate meetings with both leaders, itbecame clear that many efforts would be needed tobridge the gulf between the parties’ respectivepositions. Odinga, on one hand, insisted that theelection had been rigged and the presidency“stolen” from him, and maintained that his precon-ditions for even entering into dialogue would beginwith Kibaki’s resignation, a rerun of the presidentialelection, the formation of a transitional govern-ment, and an agreement to undertake comprehen-sive, legal constitutional reforms, especiallyconcerning the contentious “land issue.” Odingaseemed determined to use the internationalmediation to his full advantage and wanted tosecure as many concessions as possible before goingto the table, not least because he was persuaded byAnnan to call off the mass protests that wereplanned for that week, protests which would havegiven him leverage and heightened the impressionof crisis but which risked seriously underminingthe mediation effort still in its fragile first phase.Kibaki, on the other hand, actually delayed his

first meeting with Annan, set for January 22nd, inorder to meet privately with close friend and allyPresident Museveni, who was proposing his ownpeace plan. Publicly, Kibaki made clear that he wasready and willing to negotiate only when Odingaand the ODM accepted his presidency as legiti-mate—thereby dropping all references to theelection having been “stolen,” and as long as Odingacame to the table with no preconditions. Kibaki wasinsistent that his presidency was nonnegotiable andcertainly not an issue to be brought to internationalmediation: for Kibaki, his election could only bechallenged in a court of law and the ODM’s failureto do this was testimony to the shaky ground uponwhich their contestation stood. Conscious that eachday the parties stalled more lives were being lost,Annan brought the two leaders together in a closedmeeting two days later on January 24th. He pressedupon them the need for genuine dialogue and theabsolute imperative of putting an end to the

8 FORTY-ONE DAYS OF MEDIATION IN KENYA

25 African Press, “Editors Have Given the Government a 24-hour Ultimatum to Lift the Ban on Live TV and Radio Coverage,” January 25, 2008, available athttp://africanpress.wordpress.com/2008/01/25/editors-have-given-the-government-a-24-hour-ultimatum-to-lift-the-ban-on-live-tv-and-radio-coverage/ .

violence. Using terminology that would, over thecoming weeks, become familiar, Annan insistedthat this was an extraordinary situation whichneeded an extraordinary solution, starting with acommitment from the leaders to work together.When Raila Odinga and Mwai Kibaki shook

hands publicly on January 24th for the first timesince the beginning of the crisis, the sigh of reliefthat swept across the country was short-lived.While Kofi Annan had, in two days, managed toaccomplish what no one else had—i.e., convince theparties to agree to a face-to-face meeting, therebyrecognizing each other formally, no longer as anenemy but as a negotiating partner—the partieswere still not fully committed to the process. On thevery same day the parties shook hands and agreedto engage in dialogue, they also took steps whichincreased the gap that existed between them.Kibaki used the high-profile handshake to highlightthe legitimacy of his presidency, using his speech toemphasize that he was the “duly-elected president”and that the crisis could be resolved internally.Odinga, reacting to these comments, warned of thepossibility of mass action once more. What shouldhave been a unifying event swiftly became a divisiveone. Kibaki restated that the government could notshare power with those whom it had accused ofengaging in mass killings, and Odinga insisted oncemore that the only way to restore confidence wouldbe through a rerun of the presidential elections,ruling out any possibility of forming a governmentof national unity with President Kibaki. Aspositions solidified and tensions rose, violenceerupted again on the streets: mourners and policeclashed in Nairobi, fifty more houses were burnedin the Rift Valley, and people in Nakuru were forcedto dodge bullets and use cardboard to protectthemselves from flying poisoned arrows.26

It became clear that an appropriate strategyneeded to be devised. In the same way the partiestook one step forward, they could just as easily taketwo steps back; as easily as concessions were madewith one hand, conditions would be put forwardwith the other. This process was, to a certain extent,driven by the conflicting dynamics and tools thatthe parties were using: Odinga appeareddetermined to use the international communityand the momentum built up by violence to pressure

Kibaki into making significant concessions; Kibaki,however, seemed to be using his position as head ofstate, no matter how contested that was, to wave thebanner of sovereignty as justification for an internalresolution of the conflict. There was no doubt thatthe diverging and entrenched positions on bothsides would make any prospect of immediateprogress difficult to achieve.Consequently, some broad guidelines slowly

emerged. Given the fragility of the process and thefears of the people on the ground, a careful mediastrategy would have to be put in place; after all, theconstant obstacles and conflicts within the negoti-ating room would do nothing to ease the tensionsin a country desperately waiting for news of peace;but, equally, a people that was kept at arm’s lengthfrom the high-level negotiations was likely to feelexcluded from a process that concerned themdeeply. With the vital aid of President Mkapa, KofiAnnan would take it upon himself to include thepeople in the process as much as possible throughmedia transparency. While downplaying the harshrealities behind closed doors when the processseemed to go off track, he would reassure the nationwith his steady optimism.He also undertook to shield the public from the

constant stalling, the quarrels over details, and therevisiting of issues, not wishing to sow the seed offailure within the process itself. He made a point ofbuilding on what had been achieved, alwayslooking to the road already walked. Furthermore,the specific language used in interactions with themedia was going to take on huge significance, bothinside and outside the negotiating room. Annanreminded both parties that there was a need to“watch the words we say and how we use them.”This was advice to the parties, but also advice thathe would heed, and use to his advantage whennecessary in order to push the parties in the rightdirection, using words to turn hopes and ideas intoreality. This strategy would not have been aseffective in reassuring the nation and keeping faithin the process without the help of President Mkapawho made a point of translating all of the pressconferences into Swahili; this prominent figureensured that the message was heard andunderstood by the Kenyan people, and delivered bysomeone they could trust.

Elisabeth Lindenmayer and Josie Lianna Kaye 9

26 Daily Nation, “Nakuru Under Curfew as Gangs Kill Six—Soldiers Sent to Assist Police Quell Fighting Between Two Communities,” Daily Nation, January 26, 2008.

RAPID PROGRESS ON THE “ROADMAP”

By the end of the Panel’s first week in Kenya, theprincipals had agreed to enter into dialogue andhad also agreed to appoint team members27 torepresent them in the negotiations; the fact that theprincipals themselves would not be around thenegotiating table meant that a vast amount of powerlay outside the negotiating room, a dynamic thatwould prove to be both a challenge and an opportu-nity within the peace process. The secretariat of thePanel worked intensely behind the scenes duringthis week to produce the agenda—or what hascommonly been referred to as the “Road Map” forthe talks—the modalities for the negotiation, thestructure and terms of reference of the Panel, andthe Rules of Procedure. These documents wereproduced in close consultation with these newlyforming negotiating teams even before the formalnegotiations were opened. Vital adjustments weremade to the texts so that by the time the talks wereformally opened at the National Assembly onJanuary 29th the teams already had a common basisto work from, were able to adopt all the abovedocuments immediately, and could begin workingon addressing some of the essential items thanks tothe preparatory groundwork that had been carriedout by the secretariat. After the public “handshake,”rapid acceptance of the Road Map was the secondsuccess.The Road Map included four items28: (1) to

undertake immediate action to stop violence andrestore fundamental human rights and liberties; (2)to take immediate measures to address the humani-tarian crisis, promote reconciliation, healing, andrestoration; (3) to overcome the political crisis; and(4) to work on long-term issues and solutions, suchas poverty, inequality, and unemployment(especially among the youth), as well as the need toconfront impunity, tackle land reform, and consol-idate national cohesion and transparency. TheRoad Map was to provide structure and stimulus

throughout the peace talks. Annan announced histimeline publicly: violence could be stopped inseven days, the short-term issues dealt with in fourweeks, and the longer-term issues within one year.The negotiations, therefore, got off to a swift and

positive start with the mediation team having madethe important decision to separate the short- andlong-term issues at hand. The aim was to stop theviolence so that the negotiations could take placewithin a constructive framework and a peacefulenvironment. It also gave the peace talksmomentum by providing the parties with issuesthey could agree on with relative ease first, beforemoving on to the more contentious issues. Eventson the ground called for an urgent end to theviolence: on January 29th and 31st, twoMembers ofParliament from the ODM party, the HonorableMugabe Were and the Honorable Kimutai Too,were assassinated and, while at the time it wasunclear whether the motivation was related to theelection crisis in both cases,29 these deaths sparkedmore violence across the country, concentrated inKericho and Eldoret, with more deaths and casual-ties.The arrival of UN Secretary-General Ban Ki-

moon on February 1st was further proof of theundivided support of the international com-munity.30 The Secretary-General made several clearand unconditional statements of support for thework of Kofi Annan and the mediating team, whilealso making it clear that responsibility for peace laywith the leaders themselves. In his address to theSummit of the African Union in Addis Ababa onJanuary 31st, Ban emphasized the need for Kibakiand Odinga to “do everything possible to resolvethe sources of the crisis peacefully,”31 while alsocalling upon all African leaders present at thesummit “to urge and encourage the leaders andpeople of Kenya to calm the violence and resolvetheir differences through dialogue and respect forthe democratic process.”32

The following day in Nairobi, Ban held consulta-

10 FORTY-ONE DAYS OF MEDIATION IN KENYA

27 The PNU side was represented by Martha Karua, Minister of Justice and Constitutional affairs; Sam Ongero, Minister of Education; Mutula Kilonzo, a lawyer andODM-K’s MP (the party of Vice President Musyoka); and Moses Wetang’ula, Minister for Foreign Affairs. The ODM side was represented by MPs includingMusalia Mudavadi, William Ruto, Sally Kosgei, and James Orengo, who is a lawyer.

28 These were referred to as agenda items one, two, three, and four respectively throughout the mediation.29 It appears that these assassinations were not related to the election crisis.30 United Nations Secretary-General, Activities of Secretary-General in Kenya, February 1, UN Doc. SG/T/2589 (February 29, 2008).31 United Nations Secretary-General, Secretary-General, Addressing African Union Summit, Underlines Kenyan Leaders' Responsibility to Resolve Sources of Conflict

Peacefully, UN Doc. SG/SM11396 (January 31, 2008).32 Ibid.

tions with Annan and the mediating team, as wellas with Kibaki and Odinga; when both leaderscontinued to reiterate their positions, Ban urgedthem to think beyond their personal interest for thepeople of Kenya.33 In what was an important showof support for the staff involved, the Secretary-General also took part in a town hall meeting withsome of the 5,000 UN Staff based in Kenya invarious UN agencies; to these staff and to themedia, he made it clear that the UN was ready toincrease its support for the process as needed.Ending his trip in a media conference that evening,he described the violence and suffering as“unacceptable”34 and stressed the need for thenegotiating teams “to persevere and show thecourage, vision and leadership to expeditiously finda just and peaceful solution.”35

Furthermore, in the shadows were the warningsand perceived threats of possible alternative actionon behalf of the United States, which issued anambiguous statement on the need for an “externalsolution,” without giving any details of what such asolution would entail.36 The pressure for a negoti-ated solution was mounting.The Kenyan government insisted that the

statement from the US was unnecessarily threat-ening. However, this, combined with the interna-tional pressure from other sources as well as thepressing need for a solution to end the violence, ledto two major agreements on agenda items one andtwo, to end the violence and address the humani-tarian situation on the ground. These agreements,made on February 1st and 4th respectively, involvedconcrete measures to hold joint meetings topromote peace, ensure freedom of expression andthe right to peaceful assembly; investigations intocrime and police brutality; assisting the safe returnof internally displaced persons; and the establish-ment of a truth-and-reconciliation commission.Within just ten days, the Panel and the parties hadmade substantial progress.As negotiations got underway in the windowless,

well-guarded room in the basement of Nairobi’sSerena Hotel, the impression was that the parties

were moving steadily toward a peaceful solution.Discussions inside the room appeared constructiveand focused on practicalities, such as the need tocreate transport corridors to ensure aid could travelrapidly, and on the need to mobilize local leaders tobring communities together. The parties alsounderlined the fact that while the Kikuyus were thelargest group to be affected by the violence and thesubsequent internal displacement, all people ofKenya had been touched in one way or another,especially the poor. In order to keep the discussionsfocused on the most urgent aspect of the crisis—theviolence—which, according to Annan, posed thebiggest threat to the success of the talks, representa-tives from the Kenya Red Cross Society (KRC) andthe United Nations Development Program(UNDP) were invited to give a briefing on thesituation on the ground during the fourth session,on February 4th. It was reported that 923 peoplehad been killed and 250,000 displaced, withgenuine protests rapidly shifting to activities bygangs and criminal groups that predated theelection violence; across the country, people werestill being forced to leave their homes. Both sidesexpressed the need for cross-party action for peaceand reconciliation on a community level to addressthese issues, while also accepting that, on a nationallevel, the mediation being led by the Panel was theonly form of mediation that the parties wouldconsent to engage in.Increasingly, however, the mood around the

negotiating table was less than constructive. Theteams disagreed fundamentally over the name ofthe negotiation process, with ODM insisting that itshould be called an “international mediationeffort,” or at least include the word “mediation,”while GoK/PNU wanted to play down externalinvolvement and call it a “national dialogue.” Theteams engaged in what seemed to be bitterexchanges of accusations when the GoK/PNU teaminsisted that the high levels of violence were a directresult of political incitement on behalf of the ODM,while the ODM team insisted that political violenceof that level could only be organized by a govern-ment with the structures in place to make this

Elisabeth Lindenmayer and Josie Lianna Kaye 11

33 United Nations Secretary-General, UN Doc. SG/T/2589.34 Ibid.35 Ibid.36 US Assistant Secretary of State for African Affairs Jendayi Frazier, quoted in Evans Wafula, “Kenya: Prime Ministry Jeopardizes Talks,” AfricaNews, February 27,

2008, available at http://voicesofafrica.africanews.com/site/list_messages/16058 .

possible. Furthermore, the parties demonstrated aninability to look beyond the 2007 elections towardthe root causes of the crisis, and were unable tobegin moving toward possible solutions. The ODMstill clung to their belief that victory belonged tothem, while the GoK/PNU put emphasis on thehigh levels of violence across the country—andwho might be to blame—as a means of refocusingattention away from the flawed electoral process.At this early stage in the negotiations, Annan’s

interventions were brief and to the point, seeking togive as much ownership of the process to the partiesas possible while also keeping the talks focused andforward-looking. He ruled in favor of theGoK/PNU side and agreed that the process shouldbe called a “Kenya National Dialogue andReconciliation,” no doubt building on the fact thatan international mediation had been accepted,downplaying the importance of its appellation; sucha concession to the government side at this earlystage would keep them on board and make theprocess more about the parties involved, ratherthan the mediators who were guiding the process.Ever aware that time was of the essence and that

the more urgency was impressed upon the parties,the more quickly an agreement would be reached,Annan insisted that he and the rest of the Panelwould not be able to stay long, and that a deputychair should be appointed to negotiate on behalf ofthe Panel in their absence. He suggested CyrilRamaphosa of South Africa as a deputy chair whohas much mediating experience in South Africaand Northern Ireland. But the GoK/PNU siderejected Ramaphosa on the basis of his perceivedlinks with the opposition, forcing Annan to issue astatement on the withdrawal of his name for chairon February 4th. Nevertheless, it was made clearearly on that Kofi Annan would not be availableforever and that an alternative had to be found.Secondly, the use of “outsiders” in the mediatingroom, this time in the form of KRC and UNDPrepresentatives, also set a powerful precedent forfuture discussions. The ability to reach out to“experts” and “informed voices” was a modalityused throughout the negotiations, at times todepoliticize discussions, to simply keep themfocused, or to prove that what felt like unchartedterritory had actually been tried and tested,successfully, elsewhere.

DELAYS ON AGENDA ITEM THREE:HOW TO RESOLVE THE POLITICALCRISIS

After the rapid progress on the less contentiousagenda items one and two, the obstacles andchallenges that arose with respect to agenda itemthree, “How to Resolve the Political Crisis,” werebound to feel more frustrating for both the partiesat the negotiating table, and for the people of Kenyafor whom peace had suddenly seemed within reach.The progress toward resolving the political crisisironically coincided with another political eventunfolding in the nation’s capital: the proposedIntergovernmental Authority on Development(IGAD) talks in Nairobi, to be held the week ofFebruary 4th. For GoK/PNU, this was simplyanother opportunity for the East African nations toengage in helping their neighbor at this moment ofcrisis, not least because of the impact it was havingon the surrounding nations; it also seemed to be amove to further consolidate the legitimacy of thepresident in a meeting that could only be convenedby heads of state.ODM swiftly raised the red flag, accusing the

government of reneging on its commitment to themediation process under the auspices of theAfrican Union, and of trying to derail the peaceprocess itself. ODM called upon the people ofKenya to unite in peaceful protests against theIGAD talks across the country. This new develop-ment equally threatened the mediation processbecause any mass gathering in such a heightenedmoment of tension risked turning fatally violent.However, the IGAD talks went ahead at a ministe-rial level and ministers met with the Panel toinform them that they came to Nairobi to expresstheir support to the people of Kenya and for themediation efforts of the Panel. Annan was quick tointervene publicly, insisting, on the one hand, thatthere was, and there would continue to be, only onemediation process, and that it was unwise to call forprotests at this moment. The Panel successfullypersuaded ODM to cancel the planned protests,aided by reports from the US and Canada that theywould impose travel bans on those who wereaccused of being involved in the postelectionviolence, or on those who obstructed the talks.Once again, the international community spokewith one voice and applied extra pressure whenneeded.

12 FORTY-ONE DAYS OF MEDIATION IN KENYA

On February 6th, the Panel was once againcomplete: Graça Machel and President Mkapa—who had been obliged to temporarily leave thenegotiations due to prior pressing commitments intheir respective countries—having returned toNairobi to participate in this crucial phase of thenegotiation. Agenda item three can be divided intotwo phases, which are intrinsically linked under thebanner of the political crisis. The first dealt with theflawed election process and what could be done toaddress this, while the second was linked to thenature of power sharing to form a transitionalgovernment. As such, the first looked at the past,the second looked to the future, but only if theywere undertaken together would they constitute apeaceful solution that would ease tensions in thepresent.Behind closed doors, discussions were stalled on

the most fair and efficient way to deal with the issueof the recent election. The parties, however,continued to accuse each other of malpractice.ODM insisted that they had actually raised thealarm six months to a year prior to the electionsfollowing flawed registration practices and whatthey called a questionable recomposition of theECK in favor of the GoK/PNU. They alsomaintained that the refusal on the part of the ECKto establish a national retallying center wassuspicious and part of a wider organized plan tosabotage the election process to benefit theGoK/PNU. In what amounted to not much morethan a self-described “blame game,” the GoK/PNU,maintained that accusations of electoral fraud werewithout foundation given that, according to them,international observers only visited 3 percent ofpolling stations and the discrepancies found wereminor. Furthermore, restating their initial position,they said there needed to be inquiries into thepostelection violence in order to ensure that thosewho were responsible for inciting it and carrying itout were brought to justice. According to theGoK/PNU, the ODM was unlawfully using threats,intimidation, and violence as weapons ofmediation. Both Graça Machel and PresidentMkapa made many attempts at moving the partiesforward: Machel insisted that the parties should bewilling to risk their personal or political interestswhere necessary given that the fate of the whole

country was at stake; Mkapa reminded them thatthey had worked together before and that commonground should not be so hard to find.One way of attempting to bring the parties out of

these destructive patterns of mutual accusationswas to once again draw on the knowledge of expertsin the field, thereby attempting to turn a politicalquestion into a technical one. As onemember of theDepartment of Political Affairs (DPA) remarked,experts were strategically asked to intervene atcertain points to provide clarification within andaround the formal negotiations.37 Annan decidedrelatively early on in the discussion to bring in twoexperts from the Electoral Division at DPA to briefthe parties on the technicalities and the pros andcons of all the options that lay before them. Theexperts produced documents which clarified theissues around the choices of rerun, recount, andfresh elections: a recount would require opening all27,500 ballot boxes, a phenomenal task that wouldnot give any results fast and could not be guaran-teed to be any fairer than the elections themselves;a rerun implied that the former election was flawedand would therefore be divisive and politicallydangerous; new elections could take a year and sodid not offer a solution to the current crisis. Therewas no fast way to get at the “truth” concerning theelections; the Panel suggested that an IndependentReview Committee be set up to look into whathappened during the elections; the committeecould then recommend a recount if it was deemedthat this would still give an accurate result. While acertain amount of understanding was reachedregarding these issues—and this interventionproved to be fundamental for the agreement on thecommittee that emerged later—the issue was still apolitical one and backtracking on progress madecontinued for this reason.Backtracking on previous commitments was

actually becoming a pattern. Having agreed toaddress the political crisis—which entailed implic-itly and explicitly creating some form of transitionalarrangement which would ultimately have toinvolve power sharing—the GoK/PNU side begansuggesting that power sharing would mean the defacto end of the multiparty system in Kenya,something that they could not agree to. They were,it seems, reacting to the continued insistence by

Elisabeth Lindenmayer and Josie Lianna Kaye 13

37 Personal interview with Deryck Fritz, Electoral Division, UN Department of Political Affairs, Nairobi, February 19, 2008.

ODM that the elections had been stolen, therebyentrenching their initial status quo position evenmore. It became obvious that, for progress to bemade, the ODM would have to drop its accusationof electoral robbery and GoK/PNU would need togo back to its previous position of being willing toconsider transitional arrangements. At thismoment, Annan began to show more firmness andto step up the pressure on the parties. Despite theclear setbacks in the talks, he sent a message to thepeople of Kenya which emphasized that the teamshad been working hard, thereby increasing pressureon the parties to meet public expectations. Heurged the parties to be careful in their use of wordsby avoiding terms that antagonized the other side,insisted that the time for questioning the legitimacyof Kibaki was over, and that there was a need tomove on: as such, the revisiting of issues in thefuture would be ruled “out of order.”In this same vein, and in response to leaks to the

press, which in conveying the impression ofdisagreement could prove detrimental to the talks,on February 11th Annan decided that there wouldbe a two-day retreat at an undisclosed location. Itwas hoped that, away from the press and in a moreneutral environment, the negotiations wouldadvance at a steadier pace, with the prospect of animminent agreement on agenda item three. Theparties had been asked explicitly not to relatedelicate issues being discussed at the negotiatingtable to the press, but the detailed nature of reportsthat appeared in The Daily Nation and TheStandard made it obvious that these instructionswere not being adhered to. The impression ofstalemate risked sowing the seeds of doubt inAnnan’s ability to get an agreement.Before leaving for the retreat, two fundamental

steps were taken. First, on February 11th, theparties agreed to establish an Independent ReviewCommittee mandated to “investigate all aspects ofthe 2007 presidential election and makerecommendations to improve future electoralprocesses.” This was Annan’s preferred option fromthe beginning as it was nondivisive and forward-looking. An agreement for a report to be deliveredin three to six months would hopefully forestalldefinitive clarification on what happened duringthe 2007 elections to a moment when the countrywas more stable and less likely to react violently.Secondly, the Panel responded positively to a

request to brief parliament on progress in the talksin an informal session, or a kamukunji, on February12th, just hours before leaving for “the retreat.”THE KAMUKUNJI

The kamukunji was an important moment forparliamentarians who had, up until that moment,been largely excluded from the otherwise “elite”-level discussions, which had taken place betweeneither Odinga and Kibaki or the appointed negoti-ating parties, and the Panel. As such, it was the firsttime they were able to express their frustrations andfears. There was a heavy media presence at theopening session; journalists stood en masse in theupper galleries, the interminable flashing ofcameras a backdrop to the otherwise somber,traditional British-style chamber. Annan used theoccasion to advocate both patience—through hisinsistence that change is not an event, but aprocess—and some degree of speed, emphasizingthe fact that there were many urgent things to bedone. Graça Machel made a more emotional appealto the MPs through her emphasis on the humani-tarian aspects of the crisis; the suffering Kenyans,she said, should be the focus of the talks. After thepress had reluctantly left upon request by theSpeaker of the house, tensions in the chamberbegan to rise, with flying accusations mirroring, ona much larger scale, the nature of the discussionswhich were taking place in the Serena Hotel negoti-ating room, themselves a microcosm of the tensionstearing the country apart.Concerns on the GoK/PNU side were raised

about the continuing lack of clarity around theelections and instability that would be caused bychanges to the constitution. When one MP insistedupon the absolute need for a pronouncement onwho had won elections he was shouted down byfellow MPs for undermining the whole point of thepeace process and for offending Kofi Annan. Overand above the partisan lines of argument which thePanel was becoming accustomed to hearing, therewere also many new and refreshing perspectives:various MPs spoke of the need to focus on whatunited rather than what divided the parties; manywomen stood up to speak about their sufferingcommunities and the grassroots mechanismsneeded to deal with the crisis, and the cross-partisan activities that could be undertaken inresponse to the aftermath of the violence.

14 FORTY-ONE DAYS OF MEDIATION IN KENYA

For Annan, however, this was also a chance to usethe press to plant the seeds of his expectations bothin the minds of parliamentarians and in the mindsof Kenyans across the country. The reaction of thePNU to his comments, which could have easilybeen ignored, dismissed, or played down, actuallyhelped raise the profile of the carefully chosenwords he had used, thereby adding to the pressurethat was put on the parties. In what could only beperceived as an attempt to accelerate the process,Annan spoke of the reforms under discussion,including the “possible constitution of a grandcoalition which could oversee reforms within twoyears.” Those words, “grand coalition” implied alevel of agreement which had not yet been reached.Yet, in press statements issued the following day, heinsisted that a grand coalition was an option oftenchosen when a country was in deadlock and thatthis represented “his perspective on the discus-sions,” rather than any formal agreement, thecomment could be erased neither from the mindsof Kenyans nor from the minds of those in theinternational community attentively watching theprocess.

Negotiations in CrisisTHE RETREAT: MEDIA BLACKOUT

On February 12th, as the convoys carrying thePanel and members of the secretariat sped fromParliament through midday traffic to WilsonInternational Airport on the other side of the citywhere air-force planes were waiting, the mediascrambled to find out exactly where this“undisclosed” location could be. The members ofthe secretariat were already waiting for take-off onthe Kenya Air Force plane when Kofi Annanboarded and sat alone, no doubt needing time toreflect on the steps ahead. As the plane crossed overthe Kenyan savannah and landed on red dust in themiddle of a field, it was clear that this would be avery different working environment to the one theteam and the parties had become accustomed to inNairobi. With a media blackout and no-fly zoneover this “undisclosed” location it may well haveseemed dramatic, but it was a move carefullydesigned to help the parties focus on reaching anagreement on the second, most politicallycontentious part of agenda item three: transitionalarrangements for “governance,” another term being

used to refer to power-sharing structures. AsAnnan repeatedly mentioned, these wereexceptional times, and exceptional times call forexceptional measures.The new negotiating room was a light, airy space

down a cobbled path behind the lodge, heavilyguarded by camouflaged military personnel whosat and watched the parties come and go from thegrass around the buildings. Kilaguni lodge is astunningly situated hotel in Tsavo West NationalPark, southeast Kenya, not far from the border withTanzania. On clear days the peak of MountKilamanjaro is visible. Situated in one of the bestsafari parks in the country, Kilaguni had not seenany tourists for more than a month. It was both aworld away from Nairobi, and a shocking reminderof the far and devastating reach of the politicalevents happening there. For Annan this was also achance to prove to tourists that the country was asafe place to visit. The parties were hardly there toenjoy the park, but it did provide much-neededspace for dialogue. Back in the capital, it seemed,the undisclosed location was not a secret anymorebut there was an understanding and acceptance thatAnnan had asked for the parties to be left alone fora reason, aided no doubt by the no-fly zone over thegame park.When talks resumed the following day, the

parties appeared, outwardly at least, to be less tense:Annan was no longer wearing a suit, but an openshirt more fitting for the safari surroundings.Without the benefits of air conditioning, the partieswere also dressed in a more casual manner andbreakfast together overlooking the vast Kenyancountryside seemed to have set a more relaxed tone.This appearance, however, betrayed the difficultreality: these talks were only the beginning of a longjourney to reach an agreement on transitionalarrangements for power sharing. Much of the timeat Tsavo was spent in separate caucuses withtechnical experts the parties had brought withthem; the time the parties spent together at thetable with Annan was fraught with underlyingtensions, tensions telling of the vast obstaclesahead.Drawing once more on expert political advice to

help the parties reach pragmatic solutions, onFebruary 13th Annan invited Gernot Erler,Minister of State of the Federal Republic of

Elisabeth Lindenmayer and Josie Lianna Kaye 15

Germany, to share his experience of coalitiongovernment.38 The intervention by Erler waspertinent and clear: coalitions are an exceptionalform of democracy for the specific purpose ofdealing with a crisis; the principle of proportion-ality is applied in terms of personages and alloca-tion of responsibilities; there is a need for trust andreadiness to cooperate; while this effectivelytemporarily suspends a clear opposition, the publicnormally provides an adequate level of scrutiny.Most importantly, a grand coalition is less aboutpopularity than it is about pragmatism. Thisintervention would no doubt play a role incontributing to the substance of the agreement tofollow.The initial response from the GoK/PNU side was

one of concern. They were keen to demonstrate thefundamental differences between Germany andKenya. One country’s political system is based on arepresentative form of democracy, the other a moredirect form: in Germany the head of government isproclaimed by the parliament, whereas in Kenya heor she is elected by the people; Kenya also has amore fragmented party system, the governmentalready being a coalition of twenty-five differentparties and a grand coalition would simply wipe outany semblance of opposition altogether.Furthermore, their understanding of the discussionwas that a power-sharing agreement necessitatedsome level of trust, and that in none of thesituations described by the German minister wasthe legitimacy of the head of state directly calledinto question. Any coalition government in Kenyatherefore would be built on incredibly fragilegrounds. This negative reaction to the interventionraised fears on the ODM side and the discussionsdegenerated once more into accusations that theother side was more concerned about politicalpositions in the next government than about theplight of ordinary Kenyans.As the discussion continued and time passed,

little progress seemed to be made. While violence

on the ground had diminished dramatically sincethe arrival of the Panel, reports continued toemerge of community elders and gang leadersarming groups of young men in preparation forlarge scale “contingency plans” should the talks fail.Many newspapers were reporting that the sense ofominous calm in the country was anything but agood sign. The nation had pinned its hopes onAnnan but the parties were dragging their feet andhis optimism alone would not hold the countrytogether forever. A code of conduct would, Annansaid, be imposed if necessary to prevent the partiesfrom obstructing the talks with their negativeinterjections and references to past actions. Theparties responded with a reiteration of theirpositions: GoK/PNU held that it could onlyenvisage changes that could be accommodatedwithin the current constitution under Article 16,39as a shared executive would need to be subject tothe will of the people in a referendum, somethingthat would be impossible given the currenttensions. The ODM believed that Article 16 left toomuch room for interpretation (and misinterpreta-tion) and that structural changes, even if only for atransitional period, would need to be anchored inthe constitution. Annan suggested that the lawyersget together to discuss the legal issues. Thatafternoon and the morning of February 14th werespent in caucus.The tactic of extracting parties from their usual

environments and enclosing them somewhereneutral where they are forced to spend timetogether is not an unusual one: Jimmy Carter usedit in the Camp David Accords and many othernegotiators have used it across the world. It is mostuseful in highly intractable conflicts where theparties to the discussion do not know each otherpersonally, and the time can be used to build uptrust and a certain level of understanding of theother party’s position and perspective. In Kenya,however, the parties already knew each otherincredibly well. On a personal level, these parties

16 FORTY-ONE DAYS OF MEDIATION IN KENYA

38 See Spiegel Online, “A Grand Coalition For Kenya? ‘The Most Neutral Solution Possible,’” February 18, 2008, available atwww.spiegel.de/international/world/0,1518,536031,00.html .

39 The Constitution of Kenya, Revised Edition (2001) (1998), Chapter 2, Part 2, Article 16, (1) There shall be such offices of Minister of Government of Kenya as maybe established by Parliament or, subject to any provisions made by Parliament, the President. (2) The President shall, subject to the provisions of any written law,appoint the Ministers from among the members of the National Assembly: Provided that, if occasion arises for making an appointment to the office of anyMinister while Parliament stands dissolved, a person who was a member of the National Assembly immediately before the dissolution may be appointed to thatoffice. (3) The office of a Minister shall become vacant – (a) if the president so directs; or (b) if the holder of the office ceases to be a member of the NationalAssembly otherwise than by reason of the dissolution of Parliament; or (c) in the case of a Minister who, immediately before the dissolution of Parliament, was amember of the National Assembly, when the Assembly first meets after that dissolution, he is not then a member thereof. (4) Whenever a person is elected to theoffice of the President, the offices of all Ministers then holding office shall become vacant upon the occasion of the President first making one or more appoint-ments to the office of Minister.

Elisabeth Lindenmayer and Josie Lianna Kaye 17

were able to sit together and have dinner; this,however, was a political issue in which trust wasfundamentally absent. Some important progresshad been made, but time and tactics, rather thansimply surroundings, would play a definitive role inmoving the parties in the right direction in thecoming weeks. The retreat, however, had addedmomentum to the talks and impressed the sense ofurgency upon the parties. The parties also seemedto have made some progress in caucus ongovernance arrangements. It was recognized,however, that no more progress could be madebefore the parties had an opportunity to discussissues of governance and structure with the princi-pals, so the next meeting was scheduled for thefollowing week, on February 19th.Annan knew that it would be awkward to go back

to Nairobi empty handed; not least because publicconfidence was at stake along with the vital need tokeep calm. A document was prepared detailing thepositions of agreement to date around the disputedpresidential electoral results. After forty-eight hoursof negotiations at the lodge, the parties had failed tomake any substantial progress on the heart of thematter; however, the agreement reached onFebruary 14th was hardly insignificant. TheAgreement “towards resolving the political crisisarising from the disputed presidential electoralresults,” which details the problems around therecount, retally, rerun, and audit, makes it clear thatthe issue of the 2007 election result would not berevisited. The Independent Review Committee wasthe sole route forward on this issue and, until thereport was released three to six months’ later, theissue would be closed. Furthermore, the partiesagreed to comprehensive reforms and mechanismsincluding comprehensive constitutional reforms,comprehensive electoral reforms, a truth-and-reconciliation commission, and legal and judicialreforms, among many others. As soon as the partieshad signed on the dotted line and were given strictinstructions not to speak to the press, they wastedno time in rushing back to Nairobi for meetingswith their respective principals.The press conference held in Nairobi immedi-

ately upon return from Kilaguni Lodge was a tensemoment for some members of the team, who were

concerned about what Annan could say to maintainthe feeling of optimism and faith in the process.Annan, however, was more aware than ever that hehad to act while he still had everyone’s support andattention. He emphasized the agreement that hadbeen reached around the election and the reforms,reiterating the need to move on from the divisiveissue of the election results; more significantly, hementioned that discussions were now underwayconcerning the details of a “new government.”Much like the words “grand coalition,” the words“new government” would ring in the ears of theGoK/PNU negotiating team, increasingly awarethat compromise could no longer be avoided.Most importantly, however, in a reversal of his

previous position, Annan announced that he wasprepared to stay as long as it took to reach anagreement. To the parties this was a message that hewas not in transit like the mediators who precededhim; an agreement had to be reached because thiswas the end of the road, and his solution was theonly one available short of more drastic measures.To the people of Kenya for whom he had come toepitomize hope, this was a message that he was asinvested in the future of Kenya as they were and hadno intention of abandoning the process. To theprincipals, however, this message meant that theresponsibility for peace rested with them, not withhim: after all, “the mediator cannot fail as long asthe mediator stays put, only the protagonists can.”40

STALEMATE IN NAIROBI

Those close to Kofi Annan have described him as acareful choreographer with a masterful, intuitiveunderstanding, and control, of events around him.Just before the talks recommenced in Nairobi, thenUS Secretary of State Condoleezza Rice was sent byPresident George W. Bush on February 18th tosupport the mediation efforts being led by thePanel. President Bush began his Africa tour theSaturday before her visit, insisting that a deal onpower sharing be agreed upon. Following a closed-door meeting with Annan and key members of theteam, in a press statement that was completely inline with Annan’s sentiment, Rice made it clear thatthe world was waiting for an agreement. Accordingto Rice, the “time for political settlement wasyesterday,” and it was now up to the principals to

40 Thomas Princen, Intermediaries in International Conflict (Princeton, NJ: Princeton University Press, 1992), p. 98.

take the last step. She insisted that as long as thecrisis remained unresolved, Kenya could neverenjoy “business as usual” with the United States.With a visit of support just a few days later fromChairperson-elect of the African UnionCommission, Jean Ping, there could be no doubtthat the Panel worked with the support of theinternational community.Back in the negotiating room at the Nairobi

Serena Hotel on February 19th, having agreed thatreforms should be undertaken, it was time—in thewords of Annan—to work on “the how”: thenecessary transitional arrangements to undertakethe implementation of the reforms. The PNU teamarrived at the first session armed with numerousexamples of other crises that had been successfullyresolved without recourse to constitutionalamendment. This marked a transition from talkingabout “power sharing” to the idea of “accommoda-tion”; this was indeed far from the equal partner-ship that ODM was looking for. The PNU positionwas rooted in the principle of nonfragmentation ofpower in order to prevent the creation of twocenters of power. In the Kenyan Constitution, theyinsisted, the President was the head of state andhead of government at the same time, so thecreation of a prime-ministerial position, as wasincreasingly being suggested, was not a solution forKenya. When the talks turned once again to theneed to identify perpetrators of the violence in theRift Valley, the ODM side became exasperated atthe lack of progress, the stalling, and apparentrevision of positions.For Annan, however, a level of agreement had

already been reached on a governance structurethat would involve a prime-ministerial position. Atsome moments the idea of having a Prime Ministerappeared to evolve organically throughout thenegotiations; at other times, it appeared as if it hadbeen the only solution all along, one toward whichthe Panel attempted to steer the parties. It clearlyhad its roots in the decision to pass on the issue ofthe electoral crisis to a review process in order tofocus on finding a political solution whereby thetwo parties would come together in order toimplement a package of social and economicreforms. The emphasis was on the pragmatic rather

than political nature of this necessity. Following thekamukunji where Annan mentioned the words“grand coalition” provoking what he called a “stormin a teacup” among the GoK/PNU side, it becameevident in the negotiating room that a power-sharing deal was inevitable, and what remained wasonly the question of working out the details, whichinitially revolved around the issue of equalitywithin the government.For the PNU side, powers remained with the

President and could be divested to another partybut only within the framework of the currentconstitution, because to fail to do so could amountto a “civilian coup.” For ODM, drawing on histor-ical examples, to not enshrine the powers of a newgovernment position within the constitution wouldallow for the removal of those powers at thePresident’s whim. Annan insisted that this was amajor crisis requiring an extraordinary response,and that the focus should be solutions, notproblems. So when the Panel asked both the ODMand PNU sides to prepare papers outlining theirrespective stances on solutions to the politicalcrisis, the ODM side came up with a radicalproposition: a Prime Minister with executivepowers, substantial responsibilities, and twoDeputy Prime Ministers.A prime-ministerial position with executive

powers, however, could raise serious political andconstitutional issues, whereas a Prime Ministerwith no formal position or power would constitutea meaningless level of bureaucracy. What wasneeded, the Panel said, was agreement on thedetails of how to achieve a compromise. Annandecided to give Hans Corell—former UN LegalCounsel, the fourth expert to be brought into thenegotiating room—a larger role to play in thenegotiations.41 His task was probably the mostambitious: to turn the most politically contentiousissue—governance—into a technical one, to beundertaken with a Legal Working Group onGovernance. After three days of extensive closedworking-group sessions, the group returned to thesession with a Draft National Accord andReconciliation Act 2008 containing provisions onthe appointment and functions of a Prime Ministerand two Deputy Prime Ministers, the formation of

18 FORTY-ONE DAYS OF MEDIATION IN KENYA

41 Martin Griffiths, “The Prisoner of Peace: An Interview with Kofi Annan,” (Geneva: Kofi Annan Foundation and the Centre for Humanitarian Dialogue, May 9,2008), p. 12.

a coalition government, and details on how thecoalition could be dissolved. Substantial disagree-ment, however, remained. There was no agreementon the power and responsibilities of the PrimeMinister, the process for nominating ministers, thesecurity of tenure, what would happen upondissolution of the coalition, nor whether thechanges should be brought into being by an act ofparliament or through changes to the KenyanConstitution.When the parties began doubting their achieve-

ments and the amount of progress made, Annanreminded them of how far they had come by listingtheir achievements to date. When they went offtrack on tangential issues, he tried to refocus theprocess through a reminder of the extraordinaryresponsibility that lay on their shoulders. When thediscussion stalled on the issue of what name shouldbe given to the new arrangements, he suggestedthat substance should come first, and that a namewould come later. When no compromise seemedpossible between the divergent positions of theparties on the position of a Prime Minister (with orwithout executive powers), he used his creativity tosuggest a midway position with “substantial powersand special responsibilities delegated from thepowers of the president.” When the working groupreturned after three days of negotiations with hugegaps between the positions of the parties, hesuggested—to protests—that the parties outlinetheir views and that he would “bridge the gap”between the majority and minority positions. Andwhen the red flag of the constitution was continu-ally waved as an obstacle to any change or progress,he insisted that it was not necessary that thechanges be in the constitution, rather that they be“constitutional.” For Annan, the task was topreserve the essence of the constitution, a legallyenshrined document intended to protect theKenyan nation.But when the parties returned to the negotiating

table after a weekend of consultation with theprincipals and little progress made, Annan wasrunning out of options, or at least that is how itseemed. On the last session before the weekend,discussions had become fragmented and had lostdirection. At some points it seemed that the PNUside was becoming divided internally betweenmore extreme positions and more pragmatic ones;furthermore, with members of both teams leaving

at different times for prior engagements, theperception was that the urgency of the situation wasfading, and the talks were becoming secondary tothe various members’ obligations outside the room.The PNU was increasingly insistent upon the needfor meetings with Kibaki, raising fears among theODM that this was a procrastination tactic in orderto buy more time. Tensions were also rising both onthe ground and in the international community:the ODM had once again threatened mass action ifparliament was not summoned in a week to enactnecessary constitutional changes and PresidentBush had indicated that Kenya displayed “warningsigns that the international community should payattention to.” It was hoped that following themeetings over the weekend and Annan’s advice toboth Kibaki and Odinga to take definitive decisionsand to give their negotiating teams “clear instruc-tions,” that there would be swift progress on theconclusion of agenda item three. Indeed, Annaninsisted that “The Panel of Eminent AfricanPersonalities had done [its] work,” and now he wasasking “the parties to do theirs.” When the partiesreturned to the negotiating table, however, things, ifanything, seemed worse.While the negotiations began constructively,

during the session of February 25th and 26th, noprogress was made on essential issues. Workingfrom the document produced by the Legal WorkingGroup on Governance, the parties were tasked withgoing through each item under the guidance ofAnnan in order to resolve the outstanding differ-ences. Many of the items, however, produced moredisputes, with the parties concluding each time thatit was an issue only the principals could deal with,while the very purpose of the session was to narrowdown the areas of dispute as much as possible so asto then present the principals with only theessential elements that still needed to be resolved.The PNU continued to insist upon the “holy”sanctity of the constitution, whereas ODM insistedthat historically both the Inter-PartiesParliamentary Group Package of 1997 and theMemorandum of Understanding of 2002 had failedprecisely because they had no legal force. Theycontinued to disagree on the fundamentalquestions related to the powers and responsibilitiesof the Prime Minister, the representation of eachparty in the coalition government, the process fornominating ministers, and the course of action to

Elisabeth Lindenmayer and Josie Lianna Kaye 19

be taken should the coalition dissolve. With ODMclaiming that it had already compromised giventhat the election had been “stolen” from them in thefirst place, and PNU maintaining that the issuescould have been resolved without the involvementof the international community, the atmosphere inthe negotiating room was becoming increasinglyhostile. It was clear that more drastic action wasneeded to avoid the peace talks breaking downaltogether.PEACE TALKS “SUSPENDED”

On February 26th, in consultation with formerPresident Mkapa, Annan decided to temporarilysuspend the talks with the negotiating teams inorder to engage directly with Kibaki and Odinga.The gap between the positions of the parties, andthe desires of their leaders, as well as the lagbetween the speed of progress in the room and thecrisis happening on the ground, could no longer betolerated. Behind closed doors, Annan expressedhis extreme disappointment at the parties’ lack ofprogress, and at the fact that talks were no longercontributing to the resolution of the crisis. Theparties, he implied, had given him no other choice.While this was news that took the world bysurprise, he could neither afford for this to raisefears on the ground, nor—with the gangs formingin the wings—could he afford for this to beperceived as a “failure.” In his press statement onFebruary 26th, Annan insisted that this was not “anact of desperation” but a move in order to engagedirectly with the principals given that there was “aneed for urgency and speed”; most importantly ofall, he emphasized to the people of Kenya that “thetalks had not broken down.” In his most hard-hitting statement to date he chided the parties: “ifthere had been goodwill and determination weshould have been able to resolve the issues we’rediscussing today two weeks ago.” This failure wasnot his. This failure was entirely theirs. And if thosewho had been mandated with the power tonegotiate could not be flexible in their positionsdue to the instructions they had been given then hewould go straight to the top, to those who could.Annan was not only talking about the parties when

he asked: “what is the point of being described as agood negotiator who can never make a deal?”42

This was a masterful move of brinkmanship. Itwas also a clear statement: peace lay on theshoulders of the two most powerful leaders in thecountry, Kibaki and Odinga, and no one else’s. Theprice of their failure, in Kenya, the East Africanregion, and in the international community, wouldbe immeasurable. But the reward for their successwould be priceless. To the nation, it was obviousthat Annan, who had worked longer on thismission than any during his entire term asSecretary-General, had done everything within hispower to bring peace to Kenya. In his own words, itwas obvious that he had become a “prisoner ofpeace,” unable to leave and unable to broker a deal;action needed to be taken to break out of thispattern if peace was to prevail.For the international community, voiced through

statements by Condoleezza Rice, failure was not anoption; the future of the relationship of the US withboth sides and their legitimacy depended on “theircooperation to achieve this political solution.”43More importantly, less appealing alternatives—UNSecurity Council sanctions or US unilateral action,for example—were still on the table, and the US was“exploring a wide range of options.”44 OriginallyAnnan had been pleased that he had perceived“hardliners” at the negotiating table, as theagreement taken to the principals at the end wouldbe sold much more easily if such an agreementcould even be made by them. However, he had alsocome to realize that one of the parties at the negoti-ating table—whose posts included the ministries ofeducation, foreign affairs, and justice—hadpersonal stakes in the outcome of the agreement asthese positions could be affected in the subsequentcabinet reshuffle: they were actually much lesslikely to reach an agreement than the principlesthemselves.Protests from the GoK/PNU side were loud and

clear. They resented attempts by the US to impose asolution, and insisted that the talks had beensuspended just as the group was making progress;they resented being pressured on items they were

20 FORTY-ONE DAYS OF MEDIATION IN KENYA

42 The Kenya National Dialogue and Reconciliation, “Transcript of Elements of a Press Encounter by H.E. Kofi Annan in Front of the Nairobi Serena Hotel, February26, 2008,” available at www.dialoguekenya.org/docs/26FebKAPressEncounter.pdf .

43 D. Lucas Barasa and Bernard Namunane, “Talks Suspended as US Threatens to Act,” Daily Nation, February 27, 2008.44 Stephanie McCrummen, “Annan Suspends Talks in Kenya, Pressure Rising on Rivals to Reach Power Sharing Deal,”Washington Post, February 27, 2008, available

at www.washingtonpost.com/wp-dyn/content/article/2008/02/26/AR2008022600738.html .

not ready to agree to. They also emphasized whatthey saw as a contradiction between what they, theparties, were being told and what Kibaki was sayingto Annan, creating the misperception that theywere stalling unnecessarily. Furthermore, theyblamed the media for printing false stories aboutwhat was happening in the negotiating room and,most of all, for raising expectations about what wascoming and when. The ODM side, however,commended the chair and claimed that it had beencommitted to the process from the beginning andthat it, like the Kenyan people, also felt frustrated atthe lack of progress and the reversal of positions.More skilled at using the press to their advantage,the ODM had made it clear that the stalling was onthe GoK/PNU side, not theirs. Combined with KofiAnnan’s statements and actions, President Kibakiseemed increasingly cornered: the prevailingperception was that the impasse lay directly on theshoulders of the GoK/PNU; but, if failure lay ontheir shoulders, the possibility for success was intheir hands. Annan was handing the possibility tocreate peace in the country over to Kibaki: it was upto him to rise to the challenge. He could no longerhide behind his representatives.

An Agreement is Reached45

In a crescendo of well-orchestrated pressure as theforty-first day drew near, Kofi Annan asked thatPresident Jakaya Kikwete of Tanzania46 join him,along with former President Mkapa, for the finalstage of negotiations with President Kibaki and Mr.Odinga. Having suspended the talks so abruptly,the leaders were most probably not only in shockbut also absorbing the very clear message that themoment for agreement could no longer bepostponed. The decision to bring in PresidentKikwete at this point was double-edged: a respectedfigure on the continent and at the time chairpersonof the African Union, he brought with him bothknowledge and power. Firstly, Kikwete couldemphasize the success of the Tanzanian example,where power had been shared between thePresident and Prime Minister in such a way as tonot create two centers of power; in fact, theTanzanian Prime Minister actually has much more

power than what was being proposed for Kenya.Kikwete’s power had indeed not been diminished asthe result of a strong Prime Minister.47 Secondly, asan AU-mandated mission, its chairperson, Kikwete,could make clear that the whole continent wasbehind the effort and that there could be noalternative platform for negotiations. This was,indeed, the end of the road.The negotiations with the leaders took place at

Harembee House behind closed doors. In the roomwere five key members only: despite attempts byboth sides to bring in more party members, MwaiKibaki, Raila Odinga, Kofi Annan, BenjaminMkapa, and Jakaya Kikwete were the only peopleparty to the entire discussion. Annan wasdetermined to leave the room only once agreementhad been reached; furthermore, the parties wererequested to not only reach an agreement, but alsoto draft, sign, and make it public, in order to ensurethat promises would not be broken, commitmentswould not waiver, and, most importantly, that therewould be accountability for the agreements made.48The draft text, which the negotiating teams had

struggled with for weeks and which the Panelsecretariat had developed as far as possible on thebasis of the discussions, was scrutinized by theprincipals; many parts were cleaned up and otherswere simply dropped.When the leaders, Kibaki andOdinga, came to the question of ConstitutionalAmendment both insisted on bringing in theirlawyers. The leaders went through the draftagreement point by point, with new members fromeach side now in the room. At each stage they askedtheir lawyers—thereby building on Annan’s ownstrategy of turning a political question into atechnical one—if the item in question necessitateda constitutional amendment. On each point, bothlawyers agreed that constitutional amendment wasnot needed—until they reached the question ofcreating a prime-ministerial position. If the prime-ministerial post was going to be one which couldnot be withdrawn by the President, the lawyersfrom both the PNU and ODM sides agreed that aconstitutional amendment was needed. It seemedalmost too simple; all the principals had to do nowwas to sign the agreement and go public.

Elisabeth Lindenmayer and Josie Lianna Kaye 21

45 The information in this section is based on a personal interview with Kofi Annan, New York, March 23, 2008.46 Jakaya Kikwete replaced then Ghanaian President John Kufuor as Chairman of the African Union, following his election on January 31, 2008, in Addis Ababa.47 In the Tanzanian Constitution, the prime minister “supervises, coordinates and controls” (italics added).48 Correspondence between Martin Griffiths and Elisabeth Lindenmayer, May 21, 2008, Centre for Humanitarian Dialogue.

On February 28th, after five-and-a-half hours ofintense negotiations with President Kibaki and Mr.Odinga, an agreement was reached on all the issuesof contention in the draft act of parliament. Laterthat same day, at a ceremony at Harambee House,Mwai Kibaki and Raila Odinga signed theAgreement on the Principles of Partnership of theCoalition Government. The agreement outlines theposition of a Prime Minister charged with coordi-nating and supervising the execution of thefunctions and affairs of government; each memberof the coalition is to nominate someone from theNational Assembly as Deputy Prime Minister; thecoalition government will take into account theprinciple of portfolio balance and reflect theirrelative parliamentary strength; the removal of anyminister will be subject to consultation and concur-rence in writing by the leaders. The draft Nationaland Reconciliation Act would be quickly submittedto Parliament and written into the constitution.This transitional form of government would be inplace for five years when elections, based on theoutcomes of the Electoral Review Committee,would take place.The agreement met neither of the parties’ initial

demands. Initially, the ODM had insisted uponnothing less than the rightful return of thepresidential position “stolen” from them in theDecember 2007 elections, just as the GoK/PNU hadrefused to share equal power with those who it hadaccused of inciting violence and sending thecountry into chaos. It was nothing less than acompromise. Respecting the GoK/PNU’s positionthat this should not create two centers of power, theprime-ministerial position is not an executive post,but one which derives its powers directly from thePresident. Respecting the ODM’s position that thecreation of this position could not be reversed by apresidential decision, it is now enshrined in theConstitution. When Parliament convened onMarch 6th, the four bills legalizing the grandcoalition were passed without amendment.It certainly was a compromise. But there was

something very statesmanlike about being able tomake such a compromise. On the one hand, theparties had no choice: to fail to reach an agreementwould have meant trying to explain to the nation,the continent, and the international community

how they could justify letting politics get in the wayof peace. Furthermore, blood would be on thehands of the two men whose same hands could soeasily have picked up a pen to sign an agreement.And yet, the signing of the agreement came acrossas anything but an act of submission. This wasneither dictated to them from above nor the resultof coercion from outside forces. Annan had gone tothe only two people who could decide the fate of thenation: the process was no longer about theappointed teams at the Serena Hotel, or the Panel ofEminent African Personalities: it was aboutPresident Mwai Kibaki and the Honorable RailaOdinga’s ability to use dialogue to come to anagreement. The perception—real or imagined—was that the leaders of the country unequivocallychose peace. Consequently, when the agreementhad been signed and people rushed into the streetsto celebrate the new year which had been stolenfrom them by the tragic crisis two months before,there was no doubt that the agreement had beenbrokered by Kofi Annan, but that peace itself hadbeen chosen and embraced by the Kenyan people.

ConclusionWhen the Chairman of the Panel, Kofi Annan, saidfarewell to Kenya on March 3rd, six long anddifficult weeks had passed. But this was only thebeginning of an even longer and more difficult roadahead toward sustainable peace in Kenya. Thetechnical elements of agenda item three were left inthe hands of Attorney-General Amos Wako and ateam of lawyers whose job it was to draft thenecessary bills for the implementation of thepower-sharing agreement into law, and 2 billionKenyan shillings49 were pledged by the US insupport of the speedy implementation of theagreement, in addition to the Sh1.75 billion alreadypledged by the US toward reconstruction. Thenegotiations over the root causes of the crisis,however, were left in the hands of Nigerian ForeignMinister Oluyemi Adeniji, who was tasked withaddressing the last item on the agenda: the landissue, historical injustices, the cycles of disposses-sion, and the steps needed to move toward recon-ciliation.There are key lessons to be learned from the crisis

in Kenya. The February 28th Agreement was not a

22 FORTY-ONE DAYS OF MEDIATION IN KENYA

49 $30 million.

sufficient step, but it certainly was an important onetoward peace in Kenya. With memories of Rwandastill in the minds of many, and the specter ofSomalia not so far away, one shudders to think whatmight have been had the African Union notstepped in. Their swift action was a key element ofthe success in Kenya. This AU engagementhighlights the importance of the partnership andthe comparative advantages of regional organiza-tions: speed was of the essence. The lives alreadylost and the families torn apart are irreversibletragedies; but the extent of the violence could havespread so much further, the number of deaths couldhave spiraled out of control and the crisis mighthave escalated from Kenya to the rest of the region,with devastating consequences for the entireAfrican continent. All of this could have been hadthe African Union not acted on the basis of itsPrinciple of Non-Indifference50 and Article 4(h) ofits Constitutive Act. Few of us can feel indifferent inthe face of mass killings and large-scale violence;but acting on that nonindifference, and doing sosuccessfully, takes a great deal of resolve, commit-ment, and political will.While the mediation was initiated by the African

Union, the Panel realized that to be successful itwould need the broader support of the interna-tional community, including African nations, theUS, the EU, and the United Nations. It became clearthat everyone was walking in the same directionand speaking with one voice. The mediation effortsin Kenya prove that when the internationalcommunity has unity of purpose and stays thecourse, peace stands the very best chance ofsuccess; complex cases such as Darfur and theDemocratic Republic of the Congo have provedthat unity is not always a sufficient condition, but itcertainly is a necessary one.In addition to these broader lessons, there are

also lessons to be learned regarding the specificconflict-resolution tools used in the course of themediation. First, fostering the conditions for asingle mediation process—with internationalsupport where possible—is an essential step tobegin pursuing solutions meaningfully. In Kenya,

Annan assured that, first and foremost, he had theAfrican leaders behind him and that he also had thesupport of the international community and inparticular the United States—which stepped in atpivotal moments to put pressure on the parties.While the process began with multiple mediatoroptions, the Panel managed to assert authority overthe process, and to generate enough worldwidesupport in order to ask the parties to accept itsmediation as the only one they would engage in.Second, civil-society actors have a vital role to

play in the dialogue; even if involving themintimately in the negotiations around the table isnot always practical, their consultative involvementearly on helps shape the process in a way thatensures that the people have a voice and that thenecessary pressure is put on the government duringthe implementation phase. In Kenya, the activeinvolvement of the media, religious groups,business communities, and peace activists wascrucial for creating an atmosphere that wasconducive to fruitful negotiations and forgenerating that vital link between an elite-levelprocess and the grass-roots realities, to avoiddisenchantment or dangerous disconnect. Civil-society engagement can be fostered and encouragedactively by mediators willing to take the time tolisten to their views and engage them in the processwhere possible and appropriate.Third, separating the short-term from the long-

term issues when drawing up a Road Map canprove essential in creating the much-needednonviolent space for dialogue to proceed, as well asgetting the parties used to agreement at a timewhen agreement with “the enemy” can be seen as aweakness. Putting the emphasis on ending theviolence, over and above seeking “truth” about theelections, meant that Kenyan lives rather thanpolitical power were put at the heart of the peaceprocess. Given that ending the violence andaddressing the humanitarian situation also involvedapolitical, or at least nonpartisan, discussions, itwas easier to encourage the parties to agree, and togenerate a sense of teamwork and compromise.Rapid agreement on the shorter-term agenda items,

Elisabeth Lindenmayer and Josie Lianna Kaye 23

50 While the AU does not make specific reference to the “responsibility to protect”—the same negation of the principle of nonintervention is articulated by theAfrican Union as the “Principle of Nonindifference.” The same essence but different wording, the Principle of Nonindifference was invoked in the mandate of theAfrican Union as a justification for need to engage rapidly following the unraveling of events in Kenya. Taken from a personal interview with Fiona Lortan,Representative of the African Union to the Secretariat, Nairobi, February 19, 2008.

one and two, of the road map, was without doubt animportant building block for the more difficult,long-term agenda items to follow.51

Fourth, a carefully thought-out media strategy isessential both to ensure that the process within theroom is not derailed by political-point scoringoutside the room and to keep the people fully onboard and correctly informed; it can also prove tobe a useful tool in moving the process in the rightdirection. In Kenya, the Panel asked the partiesearly on to avoid making inflammatory statementsto the press about the details of what was going onbehind closed doors; when it seemed that they werenot keeping their promises and that pressstatements risked sowing the seeds of failure, thedecision to take the parties to an undisclosedlocation, where the media could no longer play arole, may have actually prevented the talks fromdeteriorating into exchanges of accusations andfinger-pointing. It certainly helped get things backon track, and created a temporary space where themedia was no longer a political tool. On the otherhand, the Panel made it their priority to keepdialogue with the people of Kenya as frequent andopen as possible, while shielding them whennecessary from destructive events behind closeddoors which may have made them lose hope; thetranslation of almost all press conferences intoSwahili by a prominent figure, such as PresidentMkapa, formed a vital part of the media strategy.The media was also a very useful tool to putpressure on the parties when necessary, to addmomentum or to plant the seeds of desirableoutcomes in the minds of the government, thepeople of Kenya, and the international community.For the Panel, the media provided a perfect meansby which to test terms such as “grand coalition” and“new government,” helping to make compromiseseem inevitable.Fifth, an emphasis on pragmatism can help

overcome political differences. Turning politicalquestions into technical ones, postponing divisivedebates over appellations, and focusing on practi-calities rather than the “big picture” can all beuseful strategies in helping negotiators to work as ateam and to put peace before political aspirations orconcerns. In Kenya, the use of technical experts—be they humanitarian, electoral, legal, or political—

was an essential part of helping the parties tounderstand which solutions were feasible given theexplosive environment in which they wereoperating; they also helped orient the parties to aproblem-solving framework and away fromadversarial negotiation strategies.Sixth, understanding that negotiations are a

process, rather than an event—and that the processis owned by the parties themselves—is integral to aholistic approach to peacemaking. Expectationscan be managed more fruitfully if dialogue isengaged in as part of a process, rather than simply apolitical exercise or event; the process has its owninherent worth, and trusting that the process will beconstructive also means being patient. The Panelreminded the parties to have patience when theyappeared frustrated, and reminded them ofprogress already made when they were despondent;similarly, the Panel was flexible and open enough tosee the talks as a process, one which needed theirfull engagement if they were going to succeed.Annan’s decision to stay was part of this realizationand certainly helped the parties to realize he wascertainly not in transit, but as much a part of theprocess as the parties. That said, while the mediatoris a part of the process, the process always belongsto the parties. This was essential in the final stagesof the peace process in Kenya: suspending the talkswas the mediators’ decision, but it was based onactions by the parties; and the ability to save thetalks from collapsing lay with the parties, not themediator.Lastly, creativity, flexibility, and awareness of

timing are crucial. A mediation process isinherently unpredictable, and the mediator musttry to constantly reassess, remain open toambiguity, and to offer new options whennecessary. In Kenya, for example, one of the majorobstacles was finding a solution which would createa prime-ministerial position which was nonexecu-tive but still meaningful; Annan’s proposition tomake this a nonexecutive position with substantialpowers and special responsibility delegated from thepowers of the president was a midway, creativesolution that satisfied both parties.Political will and mediation skills, however,

would have been useless without the desire for

24 FORTY-ONE DAYS OF MEDIATION IN KENYA

51 See "Rapid Progress on the 'Road Map,'" in this paper, pp. 10-15.

peace on the part of Kenyans themselves. The spiritof compromise can only come from the parties.Whether peace will be sustained in Kenya willdepend first and foremost on the people of Kenyaand on their willingness to implement and keep theagreement they have reached. They must tackle theroot causes of the conflict—the issues of land,dispossession, poverty, and injustice—which werethe underlying and deep-seated reasons for theexplosion of violence during the 2007 elections.They must also continue to enjoy the sustained and

undivided support of the international community,when needed, in consolidating the peace achieved.Kenya may have made some impressive stridestoward peace but it has a long way to go before itcan affirm that it fully avoided the dangers of civilconflict and entirely embraced the opportunity toaddress underlying factors which could lead to amore just, equitable, and prosperous society. Aboveall, peace in Kenya would not have been possible ifthe people of Kenya had not wanted it; peacecannot be imposed.

Elisabeth Lindenmayer and Josie Lianna Kaye 25

Further Reading

Barkan, Joel D. “Breaking the Stalemate in Kenya.” Center for Strategic and International Studies OnlineAfrica Policy Forum, January 8, 2008, available at http://forums.csis.org/africa/?cat=7 .

Barkan, Joel D. “Hearing on the Immediate and Underlying Causes and Consequences of Flawed Democracyin Kenya,” Testimony, Prepared for the Senate Foreign Relations Committee’s Subcommittee onAfrican Affairs, February 7, 2008.

Bekoe, D. A. "Toward a Theory of Peace Agreement Implementation: The Case of Liberia." Journal of Asianand African Studies 38, nos. 2-3 (2003): 256-294.

Human Rights Watch. “Ballots to Bullets: Organized Political Violence and Kenya’s Crisis of Governance.”New York, March 2008.

McGreal, Chris. “Who’s to Blame? It Depends Where You Begin the Story,” Guardian, February 7, 2008,p. 6.

Opiyo, Dave, and Odhiambo Orlale. "Mourners and Police Fight it Out in the City as ODM Prays for KilledProtesters." Daily Nation, January 24, 2008.

Princen, Thomas. Intermediaries in International Conflict. Princeton, NJ: Princeton University Press, 1992.

26 FORTY-ONE DAYS OF MEDIATION IN KENYA

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