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Kenya: a successful case of interest-based mediation

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Two months after the presidential elections whose results drove Kenya into chaos (see previous article by the same author), several weeks of negotiation and a number of set-backs later, Mwai Kibaki and Raila Odinga finally signed an agreement which is the result of an intense mediation effort led by former UN Secretary-General Kofi Annan and his team of African Eminent Personalities, Graça Machel and Benjamin Mkapa. The “Agreement on the principles of partnership of the Coalition Government” is the main result of a successful process of interest-based mediation.

Integrative or interest-based negotiation, also known as principled negotiation, is an approach to negotiation that was initially developed by Roger Fisher and William Ury at the beginning of the 1980s, and which is thoroughly described in their book “Getting To Yes: Negotiating Agreement Without Giving In”. The main idea behind it is that in a negotiation it is necessary to concentrate on the interests of the parties and not on their positions. Interests are what the parties really want, their concerns, their needs; while positions are the stands that the parties take, their solutions to an issue. Behind a position then, there may be (and there usually are) many different interests, and to reach a satisfactory and long-lasting agreement it is necessary to address the interests rather than the positions. The process that the two authors designed includes separating the people from the problem, but taking into account their emotions and perceptions; focusing on the interests and not on the positions as previously mentioned; increasing the options and inventing new solutions to satisfy mutual and separate interests; and finally utilising standards and objective criteria for decision-making.

Integrative negotiation, unlike distributive negotiation, does not entail that what is a gain for one of the parties is a loss for the other. It is instead an approach meant to create a collaborative environment where the interests of all stakeholders are expressed, recognized and accepted as legitimate, and where they work together to find solutions that will satisfy substantially, procedurally and psychologically all the sides of the dispute. The first step of the process, after bringing the parties together, consists of establishing procedural rules. Subsequently, the issue at stake will be defined. This step is essential, since often the arguing parties see a problem from different perspectives; therefore, the solutions that they propose are different. After the products of the process (i.e. a policy, or a new legislation) have been identified, an analysis of the situation has been carried on, and its causes and effects have been examined, possible alternatives are generated to address the issue and respond to the interests of all parties. Based on the standards and criteria previously agreed, a decision is taken by the negotiating parties, ratified and subsequently implemented. Finally, a follow-up system is put in place to monitor its implementation and to address any problem that might arise.

Let’s see how the interests-based approach has been applied to the point n.3 of the National Dialogue and Reconciliation Agenda: the political crisis.

To start with, Annan succeeded in what those who came before him had failed: bringing the parts together. Before the 24th of January, Kibaki and Odinga refused to meet each other, let alone to talk about the situation of the country and look for a solution. The mediation process started formally with the agreement on its terms of reference, which included the recognition of the Annan team as mediators, the commitment of the parties to the mediation process and its outcomes, and the appointment of two three-member mediation teams, later to include a fourth member.

The definition of the issues to be negotiated resulted in a four-points agenda: the immediate end of the violence; addressing the humanitarian crisis and the needs of more than 300,000 internally displaced people; a political solution to the crisis and long term issues such as constitutional, electoral and legal reform, land reform, distribution of resources, and the redressing of historical injustices.

Relevant to our analysis is the third point, the political crisis. The parties recognized that the problem was not only the result of the elections, which all of them claimed to have won, but a more general crisis of the political system and the institutions, including the police and the Electoral Commission of Kenya (ECK). The analysis of the situation quickly established that it was not feasible for several reasons to find out who actually won the elections. Furthermore, that was not the key point: the deep crisis in which the country fell, where political, economic, social and ethnic elements were intertwined, required clearly a broader reflection and a deeper study of its causes, since the election results were just a trigger for the violence to explode. Its extent and intensity, surprising for many observers, revealed that the Kenyan institutions were unable to respond to the grievances of the population, and many lost all their legitimacy. The severity of the political crisis therefore required a comprehensive political solution, which was to be the main product of the negotiation process.

Both parties claim victory of the Presidential Elections, and both want their leader as the President of Kenya. These are their irreconcilable positions, but what are their interests? As previously mentioned, interests are what parties really want, their concerns, needs and fears; in the case of Kenya, there are two main interests for both groups. On one side, they want to govern the country, they want power: they both believe to have won the elections and that the electorate gave them the mandate to lead the country. They want to represent their constituents, to implement their programmes and to set up policies that favour those who voted for them or supported them in other ways. On the other side, they fear exclusion: Odinga and his party have long been banned from power, while the Luo tribe from which Odinga hails, along with many other of the 41 tribes of Kenya, feel that they have been barred from the control of economic and political resources, handled mainly by the Kikuyu, the tribe of Mwai Kibaki. Kibaki and his supporters as well fear that, were Odinga to win and control the country, they would lose all their privileges, maybe be persecuted, and the Kikuyu community and its allies would risk to lose the position they held until now in the political and economic spheres. Ultimately, leaving aside all the other interests that each party will certainly have, the major issues for both disputants are power and inclusion.

It is here that the peculiarity of interest-based negotiation emerges more evidently: in a distributive negotiation one of the parties would get the Presidency, and the other wouldn’t, thus creating even more resentment and certainly not resolving the problem. The interest-based negotiation instead, after having identified the interests of the parties, seeks to create new and alternative options that can fulfil the interests of all stakeholders and give place to a sustainable and durable agreement. In the case of Kenya, it meant creating a new position of power, the post of Prime Minister, which did not exist in the country since 1964 when Jomo Kenyatta, the first President of Kenya, held it for a short time. The “Agreement on the principles of partnership of the Coalition Government” states: “There will be a Prime Minister of the Government of Kenya, with authority to coordinate and supervise the execution of the functions and affairs of the Government of Kenya.” The power-sharing accord implied as well that the two main parts would share executive power and the positions in the Cabinet, taking into account “the principle of portfolio balance” and reflecting “their relative parliamentary strength”. In this way, the main interests of the disputants have been addressed, and the agreement has been signed by Kibaki and Odinga on the 28th of February 2008. As stated in the accord itself, it shall be entrenched in the Constitution, and that is why the Parliament is now involved, to pass the Bills that will allow the agreement to be included in the constitutional framework.

Will this agreement work? In principle, it has good chances. As we have seen, it responds to some of the main concerns of the parties, and regardless of whom actually won the election – something that we will probably never know – it cannot be denied that politically Kenya is profoundly divided. Thus, power sharing will not answer only to the needs and fears of the political parties, but also to those of the population.

However, the historical precedent does not stand in favour of it: in 2002 Odinga and Kibaki also had a power-sharing deal formalized in a Memorandum of Understanding, but Kibaki refused to implement it after the elections.

It has to be seen how the two leaders will be able to work together, and if the minor details that still need to be arranged will trigger again bitter confrontations that could ultimately cause a failure of the agreement. There are troublesome forces in the country already in action: for example, the Head of Civil Service spread doubt on the opportunity of the 50/50 division of civil service staff, causing strong reactions. An anonymous leaflet addressed to the Members of Parliament and pretentiously titled “The Truth about the Accord” tried to diminish the importance and role of the Prime Minister in favour of the Vice-Presidency, suggesting as well that ODM is seeking to divide civil service along tribal and political lines.

For the moment, the national mood of reconciliation and the spirit of national unity that still pervades the country neutralized these attempts of reviving confrontation, but it is not so evident what can happen in the future, when the spirit of collaboration and reconciliation will have faded and more pragmatic attitudes will guide Kenyan politics.

The views and opinions expressed in this article reflect those of the author and do not necessarily reflect those of the United Nations.

Las opiniones expresadas en este artículo son exclusivamente las de su autora y Naciones Unidas no asume responsabilidad alguna respecto a las mismas.

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