In the wake of a UN report on extrajudicial killings, the prospect of intervention by the International Criminal Court on post-election violence and the formation of a Truth Justice and Reconciliation Commission, Maina Kiai, former chairperson of the Kenya National Commission for Human Rights, speaks to Pambazuka News’s Firoze Manji about what the future holds for Kenya. As long as politicians operate under the notion that ‘the big man makes the country’ rather than institutions, cautions Kiai, it will remain impossible for the country to end impunity without outside assistance.

cc With Kenya continuing its recovery from its post-2008 election crisis, Maina Kiai asks whether the country’s political class has learnt its lessons or whether there has simply been a return to ‘business as usual’. Arguing for the strengths of the accountability mechanism set out in the Waki Report, Kiai suggests that the challenge remains to direct civil dissatisfaction and the momentum for change around Kenyan politics in a positive way representative of all Kenyans.

Maina Kiai makes an impassioned plea for seriousness and commitment from all actors in the pursuit for a resolution to Kenya's political crisis

Kenya is at a cross-road that will mean either the complete disintegration of Kenya or the beginning of a new, more democratic, sustainable nation suited to the needs and aspirations of the Kenyan people in the 21st Century. In a deeply painful and costly manner–in terms of lives lost and destruction wrought—the crisis in Kenya has given the country a unique opportunity to move forward in a way that we have been advocating for the last 20 years. In a sense, Kenya is at its "civil war" moment that the US was at in 1861. Just as that war was pivotal in establishing and solidifying the democratic credentials of the US, this moment could lead Kenya to much greater heights if properly handled both domestically and internationally.

In this context, the mediation currently going on under the leadership of Kofi Annan, Graca Machel and Ben Mkapa is the last best chance for Kenya to move forward. Whatever can be done to keep the players at the table, and keep them there in good faith, is critical. And efforts that delay, or subvert the talks—whether through insensitive statements and actions or by trying to prolong the talks through acts of filibustering—must be condemned. Consistent regional and international pressure is necessary especially on the hardliners who think that the crisis will blow over. The consequences of the failure of the mediation efforts are too dire to imagine not just for Kenya but for the region.

What is going on in Kenya is a political crisis with ethnic manifestation because politics in Kenya is organized ethnically. Clearly there are cleavages and differences in Kenyan society that have erupted brutally to the surface. But these have erupted due to the failure of peaceful means of resolving and addressing these differences, including the failure of elections and political reforms promised to Kenya in the 2002 elections.

The crisis in Kenya was foreseeable. In March 2007, the KNCHR submitted a memorandum to President Kibaki urging him to maintain the "gentleman's agreement" that had been in place since 1997 whereby all parliamentary parties made nominations for appointment to the Electoral Commission of Kenya. We argued that unilateral abandonment of the agreement would likely invite chaos and instability were the elections disputed. Moreover, since January 2006 we witnessed consistent attempts by the state to reduce democratic space and instil fear in society.

THE EXTENT OF THE CRISIS

Some 1000 people have been killed in the one month since violence erupted on December 30, 2007. Note that 3000 people were killed between 1992 and 1998 in the state instigated clashes in the country. During that same period, more than 300,000 people were internally displaced, most of whom have not returned to their farms and homes. In the month since the elections, an additional 300,000 people have been internally displaced.

Part of the reason why militia—on both sides—have been so potent and dangerous is that they arose from the earlier violence of the 1990s and were never de-mobilized. Nor was there a process to deal with the root causes of that violence, with the Kibaki government choosing to sweep the matter under the carpet, despite campaign promises to the contrary. With grievances bubbling and fermenting close to the surface, it was relatively easy to reactivate the militia using methods similar to those of the 1990s. Most important, the paymasters and planners of the 1990s clashes were never held accountable.

It is estimated that in the month since the crisis started the Kenyan economy has lost about US $3 billion and about 400,000 jobs. Moreover the crisis has severely affected the economies of Uganda, Rwanda, Eastern DR Congo, and Southern Sudan and could bring them to ruin if not checked. All these nations have a history of conflict and violence that could be reawakened by economic collapse.

We have observed 4 forms of violence:

i) Spontaneous uprisings of mobs protesting the flaws in the presidential elections. These mobs looted, raped and burnt down buildings in an anarchical manner.

ii) Violence organized by ODM-supporting militia in the Rift Valley that was aimed at perceived political opponents. The initial militia action attracted organized counter-violence from PNU supporters especially in Nakuru, Naivasha areas of the Rift Valley, and Nairobi.

iii) Excessive use of force by the police in ways suggesting "shoot to kill" orders against unarmed protesters mainly in ODM strongholds including Kisumu, Kakamega, Migori, and the Kibera slum of Nairobi. Policing has been uneven in its implementation. In some strong ODM areas, the police have been shooting to kill, while when confronted with pro-PNU militia, they have opted to negotiate with the groups. However, in the Eldoret area, the police largely stood by and watched as pro-PNU supporters were killed and their houses burnt.

iv) Local militia in pro-PNU areas, on receiving internally displaced persons (IDPs) from the Rift Valley, have mobilized in sympathy and turned on perceived ODM supporters, killing them, and burning their houses.

The violence is neither genocide nor ethnic cleansing: The root of the problem is not that different ethnic groups decided they could no longer live together. The root of the problem is the inability of peaceful means to address grievances. For this to be genocide there would have to be either state complicity or state collapse and the first obligation would be for the state to provide adequate security for those at risk. Instead we have uneven and selective policing with emphasis on preventing Raila Odinga from holding protests in Nairobi rather than protecting IDPs and others at risk across the country. We therefore believe that the quickest and most effective way to reduce the violence is progress in the current talks.

THE ELECTION TRIGGER

It is clear that the flagrant effort to steal the presidential election was the immediate trigger for the violence. All independent observers have said that the tallying process was so flawed that it is impossible to tell who won the presidential election. Since 1992, Kenya's elections have been progressively better and fairer, culminating in the 2002 elections which were the best ever, and the 2005 constitutional referendum. The effect of this progression is that Kenyans finally believed in the power of the vote as a way of peacefully resolving differences, a fact confirmed by voting trends in the recent parliamentary elections that saw almost 70 percent of incumbents lose their seats. When this sense of empowerment was subverted, and peaceful legal spaces for protests were disallowed, it is not surprising that frustrations boiled over and violence ensued.

We have documented some of the facts and analysis that make clear that the flaws in the tallying of presidential votes rendered untenable the conclusion that Mwai Kibaki was validly elected.

With the benefit of hindsight, there were steps taken that paint a picture of a well orchestrated plan to ensure a pre-determined result. These include:

i) President Kibaki's decision to abrogate the agreement of 1997 on the formula for appointments to the Electoral Commission ensuring that all the Commissioners were appointed by him alone; ii) An administrative decision within the ECK to give responsibility to Commissioners for their home regions, something that had never been done before, meaning that they appointed all the election officials in the constituencies in their home regions, in a manner that created conflicts of interest; iii) The rejection of an offer from IFES to install a computer program that would enable election officials in the constituencies to submit results electronically to Nairobi and then on to a giant screen available to the public making it virtually impossible to change results; iv) A decision to abandon the use of ECK staff in the Verification and Tallying Centre in favour of casual staff provided by the Commissioners directly; and v) A refusal to ensure that election officials in areas with large predictable majorities for any of the candidates came from different areas so as to reduce the likelihood of ballot stuffing.

WAY FORWARD AND ROLE OF US CONGRESS AND GOVERNMENT

At this "constitutional moment" that Kenya has reached, we believe the way forward must be centred on truth and justice as the only sustainable road to peace and development. This is the time for Kenya to end the impunity that has been a feature of our history since independence, and also to end the "winner take all" "first past the post" system. Specifically, we call for:

i) An international independent investigation into the 2007 presidential election process in order to come to closure on the elections, find out who did what and why; who ordered it; and promote accountability; ii) An international independent investigation into the post election violence—from citizens and police–so that there is accountability on all sides.

iii) An interim transitional government to be formed with limited powers of governance and for a limited time–between 1 and 2 years—with Kibaki and Odinga exercising equal powers.

iv) The primary duties of this interim government should be to undertake constitutional reform, and especially explore ways of reforming the current Imperial Presidency; motivate electoral reforms, police reforms, judicial reforms, land reforms, civil service reforms, devolution of power; and conduct new elections at the end of its term.

v) The interim government should also be charged with cooling passions and starting the process of reconciliation through a Truth Justice and Reconciliation Commission that starts operations immediately after the new elections. It is important that presidential elections be held at the end of the interim government to inspire confidence in Kenya's electoral processes, and as a sign of the new Kenya.

vi) It is also important to note that significant work in all of these areas of reform has already been done in various constitutional drafts and also by Government Commissions and Task Forces so Kenya would not be starting from scratch.

To ensure that there is good faith in the mediation it is imperative that the U.S. Government work with the rest of the international community to maintain pressure on Kenya's leaders to treat the mediation with utmost seriousness. To this end, we welcome U.S .leadership in raising the crisis in Kenya at the UN Security Council, and call for pressure at this level to be maintained and increased.

We also urge Congress to request the release of the exit poll conducted by International Republican Institute (IRI) without delay so as to maintain pressure on all sides to negotiate in good faith. In addition, we urge Congress to work with the EU to have the EU Observation Mission Report released immediately.

In case of continued intransigence from any of the parties we call on Congress to impose travel bans on the hardliners on both sides and especially those implicated in instigating violence whether through militia or through the police. These travel bans should extend to hardliners in the civil service and to their immediate families.

Moreover, assets of the hardliners and those involved in violence should be traced and the assets frozen.

Finally, it is important that U.S. military and security assistance be frozen immediately. All US assistance to Kenya should be channelled through non-governmental sources.

* Maina Kiai is the Chairperson of the Kenya National Commission on Human Rights (KNCHR), an independent state body charged with protecting and promoting human rights in Kenya. He writes on behalf of the KNCHR, as well as for Kenyans for Peace through Truth and Justice (KPTJ), a coalition bringing together more than 50 human rights, legal and governance groups in Kenya

* Please send comments to or comment online at www.pambazuka.org

We, the Kenya National Commission on Human Rights (KNCHR) wish to question the constitutional legitimacy and legal basis of the Police Commissioner, Major General Hussein's decree barring anyone from holding political rallies after the just concluded general elections.

We have learned from media reports that the Police Commissioner issued this decree before the just-concluded elections. The Government spokesperson has subsequently reinforced these orders by repeatedly making this announcement in the media.

We wish to state here that these orders are illegal, and violate the fundamental freedoms of association, freedom of movement and freedom of expression, guaranteed in both the Constitution of Kenya and international instruments which Kenya is signatory to. In any case, if all public gatherings have been bannned, how will the elected members of Parliament appeal to their constituents to stop the violence?

We understand the Police Commissioner may be concerned about the state of security in the country. However, to issue such orders and decrees not only contravene the law, but only serve to aggravate the situation further.

Rather than arbitrarily ban the Orange Democratic Movement (ODM) Rally scheduled for Thursday 3rd January 2008, we appeal to the Police Commissioner to seek assurance and commitment from the convenors of the rally that their supporters will maintain peace and order during the rally. We also appeal to the Police and security agents to provide adequate security during the rally.

The National Commission has learnd that in the interest of security, the Government has ordered curfews in Kibera, Migori, Mathare, Kisumu and Eldoret. Whereas this is provided by law in tense security situations, the Police Commissioner should publicly make an announcement to this effect in order to bring this to the notice of all persons affected.

Further, the curfews should be conducted in a humane manner that allows the persons affected to access food and other social amenities.

We also appeal to the police and security agents to handle the situation with utmost caution, while ensuring the security of all without taking sides.

* Maina Kiai is Chair of the Kenya National Commission for Human Rights

* Please send comments to or comment online at http://www.pambazuka.org/

On November 21 Kenyans went to the polls to vote 'Yes' or 'No' to a new constitution. When the final results were announced the 'No' vote represented by an orange on the ballot paper trounced the 'Yes' vote characterized by a banana. The draft charter of the constitution being voted over had been the subject of bitter divisions in the country in the lead up to the vote. Maina Kiai from the Kenyan Human Rights Commission reflects on the lessons learnt from the referendum. He writes that Kenyans have clearly shown that they believe in the right to vote as a way of making decisions and that once again voters have firmly rejected the culture of Moism - characterized by patronage and divide and rule tactics. Kenya's politicians should take notice of the vote and listen to the people, he says.

The people's verdict in rejecting, ostensibly, the draft constitution is more than clear. I say "ostensibly" because I am not convinced that voters were voting only on the merits or demerits of the draft. Indeed, I would guess that quite a significant number were expressing their views much more on the other issues that have dominated the processes since the Bomas meeting as far back as 2003, than on the substance of the document. These issues included the sense of protecting our own; sending a protest message; unhappiness with the process; use of state resources; presence of perceived corrupt people in the cabinet; arrogance of the small clique in power; and exclusion of most Kenyans from the "warmth" of power.

Moreover, the one-month period for civic education was plainly inadequate to reach the millions of Kenyans, and the political class - on both sides - hijacked the process. Since Bomas, the issues have been more about politics, power, ethnicity, revenge and protection of old and new corruption, than about delivering a new constitution. And it has been about controlling the process, leading to the birth of a new constitution for Kenya, with both sides doing whatever they can to thwart the other's purported (and real) control of the different processes that emerged since 2003.

Of course there are real issues of substance dividing both sides, but way beyond these issues, is the question of control of the process that leads to the final document. This is on the basis that whoever controls the process will get what they want in the final document without the need for compromise and negotiations. And it is in this sphere that the political class - on both sides - outwits us all in being able to then sell their personal views as views of communities.

It has been argued previously that it is critical to remove the process and control the issue from the table so that we can genuinely discuss a draft without too much politics, and also giving time to genuine and expansive civic education on substance rather than politics. Could it be, for instance, that the 30,217 people in Tetu constituency who voted 'Yes' were all convinced on the substance of the document, as opposed to the 255 who voted 'No'? Or that the 29,974 people in Nyando who voted 'No' all disagreed with the merits of the entire document, as opposed to the 260 who voted 'Yes'?

These margins reflect more a "protection" and "our own" mentality than anything else, for even in the closest of families, there are always real divisions and difference of opinions on fundamental issues and the only way to overcome these differences is to project a need for togetherness as protection against a larger outside enemy. And in our referendum, the tribe and its perceived interests, and power swamped the contents of the draft.

Given the control factors and processes that led to the Wako Draft, it was not surprising that politics topped the agenda.

It was in this context that the Kenya National Commission on Human Rights spent considerable time and energy with various political actors, advocating a formula on the process that would not be controlled by either side. We argued that the political class needed to accept that the country was divided and that there was virtually no Kenyan who would not be perceived, rightly or wrongly, to be supporting one side or the other; and that therefore the only possible way to move from process issues and into content was to get five to seven eminent, credible, distinguished African constitutional law experts who are above reproach, to then craft a draft from the various views and existing drafts that exist in the country. This would include the collation of views by the Ghai Commission, the Ghai, Bomas, Ufungamano, Law Society of Kenya and the Federation of Women Lawyers (Fida) drafts to mention a few.

We were clear that we needed credible African experts who understand the African reality well, but who were also above Kenyan political control. And to ensure that no one said they were "appointed" by one side or the other, and that there was an accountability mechanism for these experts, we suggested that we approach Archbishop Desmond Tutu, or former South African president Nelson Mandela, and ask them to select the experts. Unfortunately our pleas fell on deaf ears all round.

I believe that the referendum outcome vindicates this approach and by rejecting the draft, we now have another opportunity to reconsider it. The key to building bridges lies not in the actual substance of any draft constitution; it lies in the process and the confidence around the process that we can generate. That way, we can then have debates on the contents without politics and power games, knowing that we can never all agree on the substance but at least this would ensure that we have a proper debate without politics and power intervening.

It will be tempting for the 'No' side, composed of Kenyan politicians, to interpret the vote as a mandate for them to lead and direct the process for a new constitution. This will be the road to ruin in as much as the Kiraitu approach led to ruin.

There are also other lessons that we can draw from this exercise to guide us into the future and bind us together. Important among them is that Kenyans have shown that they firmly believe in the right to vote as an indispensable tool in making decisions, or to send messages to the political class. I was very impressed by the calm and maturity exhibited by voters - in contradiction to the politicians. Even in areas where there were clear divergent views, the level of respect for the other side was overwhelming. This, despite the best efforts of politicians to incite violence and ethnic hatred; inflame passions; and raise our emotions. Clearly, our leaders have some lessons to learn from us, and we should now increase the pressure on them to start listening to us, rather than vice versa. This means that we, the public, must start holding our leaders accountable for breaking the law in trying to incite us to violence; hold them accountable for the misuse of state resources; and reject attempts to excite ethnic hatred through hate speech, for a start.

A third key lesson is that Kenyans, yet again after December 2002, rejected firmly the culture of Moism that has pervaded the political class in the country. This is the culture of patronage, the culture that views state resources as personal, the culture of divide and rule. This is the culture of decision-making by a small kitchen cabinet on the basis of their personal, not national, interests. It is the culture of arrogance and forcing issues down our throats, without the courtesy of explaining, simply because the State machinery is in their hands. And it is the culture of handouts as though money is the only thing that matters to us all. After a reasonable start in January 2003, and for about a year, key players in the Kibaki regime reverted to Moism as a way to maintain themselves in power, forgetting the reform promises they had made. Well, the voters have reminded us all - and I hope the victorious 'No' side learns this - that Moism is not just about Daniel Moi as a person: It is about a way of governing that is not only disrespectful, but also selfish, and cliquish.

I also draw the lesson that Kenyans want far more bolder and deeper reforms than have been carried out so far. In the early days of this regime, the support for reforms was amazing, and the bolder the better. It is time for the government to get back on this track. That must mean a complete "zero-tolerance" to corruption; a sweeping of the civil service including the retiring of those public servants - no matter how good - who have reached retirement age. With 65 per cent of the population being under the age of 30, few things affect the image of the government than its reliance on "old" men, when what it needs is energy.

It also means revamping the police to make it friendly not fearful; working to change attitudes in the public service; focusing more on delivery and accessibility; and bringing in more and competent women reflecting the face of the country, to high positions of governance. This necessarily means bringing in people from outside the government to serve (as public service should) from the private sector and civil society.

More reforms must also include more transparency and accountability to the people of Kenya. Nothing, for example, prohibits various politicians, government departments and agencies from holding public accountability forums where they submit their records to public scrutiny over and above the accountability to parliament. There are many questions that many of us still have from the referendum that we would like answered. For instance, how much was actually spent by the two sides in the campaigns? And where did the funds come from, outside the veil of "well-wishers"? Honesty in answering these questions will perhaps begin building some bridges between us the people and the political class on both sides.

The people of this country have many things to say, some good and some bad. They need to be listened to, even if one does not agree with them, and no matter how painful.

* Maina Kiai is the chairman of the Kenya National Human Rights Commission.

* Please send comments to [email protected]

* Read the report 'How and Where the Cause of Justice was Defeated in the Referendum Draft Constitution of 2005' for background information on the referendum.
http://www.mazinst.org/referendumdraft.html