Reforms, Not Grand Coalition, Solution To The Kenyan Question

Review by Ogova Ondego
Published March 20, 2008

The power-sharing agreement signed between the Orange Democratic Movement leader Raila Odinga and Party of National Unity’s Mwai Kibaki on February 28, 2008 may not amount to much unless both leaders commit themselves to delivering on the reforms and holding firmly to the terms of the commissions charged with ending impunity and ensuring the accountability that is essential for the rule of law, a US human rights organisation warns. In fact, OGOVA ONDEGO writes, Human Rights Watch calls for “a new culture of accountable governance.”

In its 96-page report, Ballots to Bullets: Organized Political Violence and Kenya’s Crisis of Governance, that was released in Nairobi on March 27, 2008, Human Rights Watch cautions that Kenyans should steer clear of considering ‘blanket amnesties’ for any one who participated in the election fraud and post-December 27, 2007 violence that almost brought Kenya as we know it to an end.

Saying “Kenya’s recent crisis was triggered by election fraud”, HRW absolves the “ODM’s national leadership” of blame for the violence that rocked Kenya in January and February 2008.Â HRW says “the rigging of the 2007 presidential election” is the one that triggered the violence as the people felt that their peaceful attempts at bringing about change had been short-circuited.Â The report, however, puts blame at the door of ‘PNU mobilisers’ and ‘businessmen’ for organising and funding reprisal attacks in Naivasha and Nakuru.

Saying “Local leaders and Kikuyu in Nairobi contributed money for ‘self-defence’ forces,” the report says that between January 23 and 30, “Kikuyu militias in the Rift Valley towns of Molo, Naivasha and Nakuru led pogroms targeting local communities of Luo, Luhya, Kalenjin, and other minority groups seen as being associated with the ODM and, by extension, with violence against Kikuyu elsewhere in the country.”

“The Kikuyu militias who struck in late January were organized, paid, and directed by local elders, businessmen, and, in some cases, PNU councilors and mobilizers. Circumstantial evidence suggests that senior members of the government may have been aware of what was going on. Reports cited by the BBC describe contacts between the renegade Mungiki leader and State House, and several newspaper articles also describe the involvement of unnamed government ministers in raising funds for self-defense units.”

The root cause of the violence however, HRW says, is Kenya’s “history of widespread corruption” that has led to the impoverishment of some 58 percent of the population with “the rigging of the 2007 presidential election” being viewed as “the final betrayal of [the] agenda for change.”

That “Kibaki tried to pre-empt any challenge by having himself hurriedly sworn in to a second term in office before Kenyans even had time to register their anger and concern” only made an already bad situation worse.

In the 2002 general elections, Kenyans had voted overwhelmingly for an end to dictatorial government, corruption, inequality, political violence, and systemic abuse of office. However, HRW says, those promises were not only abandoned by the Mwai Kibaki regime but impunity and corruption were instead further entrenched.

Instead of arresting and prosecuting the people who had been named in the The Akiwumi report which investigated the infamous tribal clashes in Kenya starting from 1991 and named 189 people “adversely mentioned”, including Mwai Kibaki, George Saitoti, William ole Ntimama, some sitting and former members of parliament, district and provincial commissioners, councilors and civil servants, some–like Saitoti and Ntimama–were rewarded with cabinet positions by Kibaki.

Justice Akiwumi had recommended investigation and prosecution of those mentioned in the report but no one was ever prosecuted. The Task Force report on the Establishment of a Truth, Justice and Reconciliation Commission was equally shelved.

Thus, instead of the much anticipated reform, “corruption, patronage politics, state-sponsored violence, and persistent police abuses” became synonymous with the Kibaki regime and some of his former allies, led by Odinga, set out to unseat Kibaki through the 2007 elections.

Indeed, HRW notes, the Kenyan question will not be resolved through power-sharing alone. “Lasting solutions require a thorough overhaul of Kenyan institutions and a serious attempt to redress deep-seated problems that have been ignored or exacerbated for too long by those in power.”

Over the past 45 years that Kenya has been independent, no “government has yet made a good-faith effort to address long simmering grievances over land that have persisted since independence.”

HRW says that the Kenya National Dialogue and Reconciliation that was ably mediated by Kofi Annan, “provides Kenya’s leaders with a historic opportunity to step back from the brink and to reform and establish institutions that can help build long-term stability. The establishment of a Commission of Inquiry on political violence; an Independent Review Committee on the elections; a Truth, Justice and Reconciliation Commission; and the agreement on the general parameters for a constitutional review process , all agreed in such a short time frame, represent a serious and positive response to the crisis.”

However, challenges are stacked high against the reform agenda as some of the individuals implicated in recent and previous episodes of politically-motivated violence, currently hold public office. Other national institutions requiring urgent reforms for there to be guaranteed peace, safety and security include the judiciary, the police, and the electoral commission.

Saying there can be “no alternative to criminal prosecutions of those who have contributed to the violence, including the police found to have used excessive force,” HRW says that “one of the first priorities for the coalition government must be to ensure that no one suspected of inciting or organizing political violence is rewarded with cabinet positions. If the new regime is to address impunity it needs to be above suspicion itself.” Saying “There will be a temptation among Kenyan politicians to ignore accountability and ‘move on’,” HRW cautions that “Such moves must be resisted.”

While the independent Review Committee should examine the electoral failures and recommend remedies and election reforms, the Truth, Justice and Reconciliation Commission should examine human rights violations and historical injustices including corruption and land-grabbing dating from independence in 1963.

Any one implicated in fomenting violence or those who contributed to the rigging of the 2007 election should be held to account; they should be investigated, prosecuted and convicted

“Rather than be viewed and treated as a vehicle for delaying or avoiding justice, the Truth, Justice and Reconciliation Commission and the Commission of Inquiry must lead to prosecutions and convictions.”

The report accuses the police of both selective use of force and inaction.

“While willing to shoot to kill without justification in Kisumu, when lives were not at stake, police officers in other areas markedly did not use lethal force in circumstances when they might have been justified in doing so to protect lives,” the report says.

The majority of police killings, HRW says, “took place as a police subsequently tried to contain in the slums persons they believed might try and join demonstrations.” Here, the report says, police “shot unarmed protesters and bystanders without any initial attempt to use non-lethal force, and in situations where there was no apparent imminent threat to life or property.”

HRW says police “were quick to resort to lethal force in opposition areas such as the slums of Nairobi, Kisumu, and elsewhere when lives were not obviously at risk. Faced with pro-government mobs killing and burning in Naivasha and Nakuru, the police made little attempt to intervene at all. In nearly every location there are reports of police shooting unarmed children.”

The police, too, are accused of “complicity in the ferrying of Mungiki fighters to Naivasha and Nakuru” to attack perceived ODM supporters.

As if stressing the police complicity in the Naivasha violence, HRW says, “The police, with a woefully inadequate 60 officers in Naivasha, were not able to control the violence” but that “For reasons which are unclear, [they] did not request assistance from the army or the prison service (which had 1,000 armed prison guards stationed in the town and available to help).”

When the “prison commander took the decision to deploy his men himself, the police actually fought their prison service colleagues.”

Aptly noting that “Many Kenyans have little faith in the police to act in a professional, impartial, and timely manner,” HRW says “this reality only encourages vigilantes to take the law into their hands.”

The ODM/PNU coalition government, therefore, “should urgently address the issue of police capacity by seeking assistance, including from the UN or foreign governments.”

HRW report calls for “a new culture of accountable governance” for “the power-sharing arrangement for coalition government is to pave the way for a genuinely democratic Kenya, where the rule of law and fundamental civil and political rights are fully respected.”

HRW says the post-election violence in Kenya was planned. In Eldoret, for instance, “local ODM mobilizers and other prominent individuals called meetings during the election campaign to urge violence in the event of a Kibaki victory. In the days that followed, attacks were often meticulously organized by local leaders.”

The revenge attacks by Kikuyu militia in Naivasha and Nakuru, too, were not spontaneous but “PNU mobilizers and local businessmen called meetings, raised funds, and directed youth in their attacks on non-Kikuyus.”

As the international actors and the civil society played a significant role in the political settlement in Kenya, HRW calls upon them to ensure “that the coalition government seizes this chance to end impunity, deliver reform, and address the underlying causes of violence.”

Decades of turning a blind eye to corruption, impunity, and mismanagement by Kenya’s governments by the international community, the report says, is what almost drove Kenya down the cliff.

It is upon the international actors to ensure that the long term causes of instability in Kenya are addressed. Otherwise, “peace and justice will remain elusive unless there is sustained action to address the long-term crisis of governance that has led to rampant corruption, impunity and the denial of democratic, social, and economic rights.”

Continuing pressure on the grand coalition government “is essential to ensure accountability for recent violence, and for previous crimes of corruption, political violence and land-grabbing, and to deliver on the promises of institutional reform.”

“Any investigation run solely by the police without independent oversight and control or real transparency will lack credibility,” HRW says, adding that “The work of any Truth, Justice and Reconciliation Commission or similar body will be undermined without much more effective police action or provision for its own teams of investigators.”

The report urges the civil society to be more vigilant in monitoring the coalition government to ensure the latter delivers on its promises and “that it properly confronts difficult choices, especially when it comes to accountability for past and current crimes.”

To compile its report, HRW say they conducted more than 200 interviews with a cross section of people including “victims, witnesses, perpetrators, police, magistrates, diplomats, Kenyan and international NGO staff, journalists, lawyers, businessmen, councilors, members of parliament from all major ethnic groups, by phone and in person, the vast majority in person,” examined court records in Naivasha and visited Nairobi, Kisumu, Kitale, Eldoret, Naivasha, Nakuru, and Molo.

But one may easily fault the HRW report as lacking in credibility as many of her interviewees “spoke on the condition of confidentiality, requesting that the report not mention their names or other identifying information.” Equally one may dismiss the report as not being credible enough as they simply reported what they were told without looking at it critically or counter-checking it with others.

For instance, how does one take the claims that “Human Rights Watch found no evidence directly implicating ODM’s national leadership in these events” and that “all the Kikuyu victims Human Rights Watch spoke to blamed William Ruto, a Member of Parliament, for the attacks because of his strong anti-Kikuyu rhetoric prior to the election”?