March 16, 2008

Summary

The scale and speed of the violence that engulfed Kenya following the controversial presidential election of December 27, 2007 shocked both Kenyans and the world at large. Two months of bloodshed left over 1,000 dead and up to 500,000 internally displaced persons in a country viewed as a bastion of economic and political stability in a volatile region.

The ethnic divisions laid bare in the aftermath of the elections have roots that run much deeper than the presidential poll. No Kenyan government has yet made a good-faith effort to address long simmering grievances over land that have persisted since independence. High-ranking politicians who have been consistently implicated in organizing political violence since the 1990s have never been brought to book and continue to operate with impunity. Widespread failures of governance are at the core of the explosive anger exposed in the wake of the election fraud.

The Kenya National Dialogue and Reconciliation between the political parties 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 remain in ensuring that the institutions created actually deliver accountability for recent and previous violence, correct injustices ignored by previous administrations, and tackle the systemic failure of governance that gave rise to the recent crisis.  A particular challenge will arise because some of those individuals implicated in recent and previous episodes of politically motivated violence currently hold public office.

This report describes the main patterns of violence that have unfolded since Kenya's December 2007 general election, namely police use of excessive force against protestors as well as ethnic-based killings and reprisals by supporters aligned to both the ruling and opposition parties. It also outlines the ways in which this violence is the outcome of decades of political manipulation of ethnic tensions, and of impunity intertwined with longstanding grievances over land, corruption, inequality, and other issues.

As the mediation process has recognized, a fresh start for Kenya requires thorough reforms of the institutions designed to safeguard and realize the full panoply of human rights, including the judiciary, the police, land tribunals, and the electoral commission. But unless the Truth, Justice and Reconciliation Commission and the Commission of Inquiry lead to real accountability for the perpetrators of current and previous episodes of political violence, incitement will remain a strategy for political leaders in Kenya. Human Rights Watch believes that there is no alternative to criminal prosecutions of those who have contributed to the violence, including for members of the police found to have used excessive force.

Kenya 's recent crisis was triggered by election fraud, but many of the tensions that exploded in December 2007 were years or even decades old. In the 2002 general elections, Kenyans voted overwhelmingly for an end to dictatorial government, corruption, inequality, political violence, and systemic abuse of office. The National Rainbow Coalition (NaRC) headed by Mwai Kibaki promised a new constitution, commissions to address large-scale corruption and arbitrary land-grabbing by the elite, as well as measures to tackle landlessness, unemployment and police reform. One by one those promises were abandoned by the Kibaki regime as the NaRC coalition fell apart while impunity and corruption became further entrenched.

For many Kenyans, the rigging of the 2007 presidential election was the final betrayal of that agenda for change. Voting on December 27 proceeded smoothly with record numbers of registered voters and a record turnout. The parliamentary results were swiftly tallied and announced on December 29, resulting in major losses for the ruling Party of National Unity (PNU) party. The presidential vote, however, soon took a different turn.

Reaction across the country was swift and violent. Protests erupted even before the announcement of the presidential result on December 30, as delays and irregularities in the count sparked rumors of rigging. The government banned public gatherings and the police confronted street protests with excessive force, killing and wounding hundreds of peaceful demonstrators with live ammunition. Meanwhile, some people took advantage of the lack of law and order to loot, rape, and riot.

Mobilized opposition supporters-especially in the Rift Valley and the slums of Nairobi-attacked those whom they assumed had voted for Kibaki, and his PNU, in large part the Kikuyu. This assigned an ethnic dimension to the violence and angry Kikuyu then fought back.

Politics in Kenya has become to a large extent about competition between ethnic groups, and the 2007 election campaign had emphasized the ethnicity of the candidates and the parties. The opposition Orange Democratic Movement (ODM) built a political coalition based on the widespread perception that the Kibaki government had entrenched tribalism and governed in the interests of the Kikuyu community. The PNU, on the other hand, made Luo cultural traditions a target, claiming that an uncircumcised man could not rule Kenya. It was unsurprising therefore that the violence following the rigging should take an ethnic form. Indeed, pre-election violence in Kuresoi, Molo, and Mount Elgon throughout 2007 foreshadowed what was to come.

Irresponsible politics may have created fertile ground for violence but the Rift Valley's post-election bloodshed did not arise spontaneously. It emerged as a result of incitement before the election and coordination and organization, at least at the local level.

Around Eldoret local ODM mobilizers and other prominent individuals called meetings during the election campaign to urge violence in the event of a Kibaki victory, arguing that if Kibaki was announced as the winner it must mean the polls had been rigged and the reaction should be "war" against local Kikuyu residents. In the days that followed, attacks were often meticulously organized by local leaders.

Nor were the reprisal attacks by Kikuyu militia in Naivasha and Nakuru spontaneous. PNU mobilizers and local businessmen called meetings, raised funds, and directed youth in their attacks on non-Kikuyus and their homes.

Identifying those behind the attacks should be a focus of the inquiries into the violence. In addition, further investigations are required in order to determine the extent of links between the national leaderships of the opposition and ruling parties and those who carried out the violence. There is circumstantial evidence that suggests leaders may well have been at least aware of what was happening and did little to stop it. Some may have been more directly involved.

Across the country, the police response to demonstrations against the declared election results involved excessive use of force, leading to hundreds of deaths in late December and early January. As the country slid into inter-ethnic violence, there were examples of the police intervening to protect lives, but in many other situations the police appear to have had little will or capacity to prevent violence. Although the scale of the demands on the police in many parts of the Rift Valley and western Kenya means that failure to make arrests as violence was ongoing is possibly understandable, the limited extent and slow pace of investigations and prosecutions in recent weeks leave much to be desired.

Many Kenyans have little faith in the police to act in a professional, impartial, and timely manner; this reality only encourages vigilantes to take the law into their own hands. The new coalition government should urgently address the issue of police capacity by seeking assistance, including from the UN and foreign governments.

In addition to addressing the urgent protection needs and to ensuring accountability through the institutions established as a result of the National Dialogue and Reconciliation process, the priority for the coalition government must be what Kofi Annan has called a 'reform agenda.' Indeed the parties themselves have acknowledged as much. The roots of the crisis are old and deep. If 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, a new culture of accountable governance is required.

International actors and civil society played a significant role in the political settlement in Kenya. They now have a role in ensuring that the coalition government seizes this chance to end impunity, deliver reform, and address the underlying causes of violence, many of which are long-standing human rights violations.