Predictably, what’s left of the Ocampo Six has sought and been granted leave to appeal the charges of crimes against humanity now confirmed against them at the International Criminal Court. Equally predictably, their defence is relying on the dissenting opinion of one of the three Pre-Trial Chamber Judges — who held that neither what the media dubbed the “Kalenjin warriors” for Case One nor the Mungiki for Case Two can be said to be an “organisation” in the sense meant by the Rome Statute.

He reiterated the elements he considers necessary for an “organisation” to be treated as state-like and able to pursue an “organisational policy.” These elements include (paraphrased): a collection of persons; set up to act for a common purpose; over a long period of time; under a command or with a hierarchy including a policy making level; able to impose policy and sanction non-conformity; with the capacity and means to attack civilians on a large scale. He goes further to exclude organised criminal groups from this definition.

I am reminded of being an undergraduate and having to walk out of a seminar dealing with statehood. The reading for the seminar argued that because elements defining states were not present in Africa prior to colonisation, colonialism didn’t happen.

I am also reminded, more recently, of the Mungiki-related slaughter in Ndia. Colleagues researching that incident came back from the field with findings so outrageous that you would laugh, if it were not for all the dead. Mungiki had become so entrenched that it was taxing everything — on a sliding scale in some instances. With different taxes for different kinds of dwellings (mud, wood, concrete). For different kinds of businesses. And for different kinds of market goods (eggs, milk, produce). It was so entrenched it was even charging taxes on weddings!

Rebellion

The people, initially grateful for the order that Mungiki had brought in, eventually rebelled at the escalating extortion. Stir into the mixture the roles of the Administration Police and Kenya Police (also initially compliant, for both the order and the rents). We’ve baked a mafia. That wouldn’t go down without fighting. Hence the bloodbath.

The incidents and the stories go on and on. And that’s just one “organisation.” They are like a many-headed hydra, popping up all over Kenya. Not always with wicked motives. But with tragic results in the end. Think of Sungu Sungu in Kisii—another more recent example.

What is my point?

State-like organisation is, actually, easy to see for the ordinary citizens who live under the thumbs of these organised criminal groups when they’re in their ascendancy — they tend to wax and wane, depending on the level of economic accommodation they have with the local security services and the level of political accommodation they have with the executive and parliament. To return to my ill-fated undergraduate seminar, elements of statehood include effective control of a given territory. Monopolising violence (so as to use violence coercively when necessary). And the ability to extract rents from the population.

Either we believe in the State or we don’t. If we do, then we don’t undermine it by enabling or propping up these little and not-so-little mafia in any way, shape or form. Particularly in an election year.