Human Rights Violations in the Context of the General ElectionThe Hijacking of Kenya’s 2007 Presidential PollWhile it is true that the post-election violence in Kenya has deep-seated roots, the immediate trigger for the violence was the rigging of the election. This was not only a proximate cause of the violence but also an abuse of Kenyans’ democratic rights. The principle of free and fair elections is enshrined in Kenya’s constitution48 and provided for in numerous other acts of parliament.49 In addition, Kenya has signed and ratified international and regional treaties relating to human rights, including the International Covenant on Civil and Political Rights (ICCPR) and the African Charter on Human and Peoples’ Rights, which contain standards on the conduct of democratic elections.50 Furthermore, it has agreed and endorsed the African Union’s ‘Principles Governing Democratic Elections in Africa’.51 Kenya’s December elections should have been an important milestone for Kenya and for Africa. After a closely-fought campaign, Kenyans registered and turned out to vote in record numbers. There were serious irregularities reported on both sides in some areas.52 But the most damaging acts of fraud were committed during the final stages of tallying the presidential poll, when the Electoral Commission of Kenya (ECK) presided over what was by all appearances a desperate last-minute attempt to rig the contest in favor of incumbent Mwai Kibaki.53 In the closing hours of the tabulation process a lead of over one million votes for opposition candidate Raila Odinga evaporated under opaque and highly irregular proceedings and was transformed into a razor-thin margin of victory for Mr. Kibaki.54 The result was also entirely at odds with the Orange Democratic Movement’s successes in the parliamentary vote in which ODM won 99 seats to PNU’s 43.55 The entire process quickly fell apart in confusion. In the face of public outrage and mounting pressure to reverse the move, five electoral commissioners publicly denounced the apparent fraud.56 Even the head of the ECK later said that he could not determine who actually won the vote.57 Nonetheless, Mr. 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. All domestic and international observer missions swiftly issued statements condemning the tallying process and casting doubt on the result of the presidential election.58 When the announcement of the presidential election was made at the Kenyatta International Conference Centre on December 30, journalists were told to leave the building. Almost immediately, the government, through then Internal Security Minister, John Michuki, ordered broadcasters to suspend live broadcasts. This was not only an infringement of the freedom of the press, but contributed to considerable tension across the country as Kenyans, eager to know what was happening in Nairobi, were denied the chance to scrutinize their own democratic process.59 Violence erupted even before the announcement of results as concern and suspicion about delays spread through the country. Within hours of the results’ announcement, Kenya began to slide into violence. 48 Constitution of Kenya, Section 5, as amended 1992, states: “5. (1) The President shall be elected in accordance with this Chapter, and subject thereto, with any Act of Parliament regulating the election of a President.” available online at: http://www.kenyalaw.org/kenyalaw/klr_app/frames.php (accessed February 24, 2008). 49 National Assembly and Presidential Elections Act (Chapter 7), Local Government Act (Chapter 265), Election Offences Act (Chapter 66), Societies Act (Chapter 108), Registration of Persons Act (Chapter 107), Police Act (Chapter 84), Public Order Act (Chapter 56), Kenya Broadcasting Corporation Act (Chapter 221) and also in Presidential and Parliamentary Elections Regulations, National Assembly and Presidential Elections Practice Rules (Electoral Code of Conduct), National Assembly and Presidential Elections Regulations (Registration of Electors), National Assembly Elections Rules (Election Petition), Local Government Election Rules, Societies Rules, Registration of Persons Rules. 50 Kenya ratified the African Charter on January 23, 1992 and the ICCPR on May 1, 1972. See the African Charter, Article 13, and the ICCPR, Article 25. 51 Kenya is a member of the African Union, the successor to the Organization of African Unity (OAU) which adopted the Declaration on Principles Governing Democratic Elections in Africa at its 38th Ordinary Session held in Durban, South Africa in 2002. 52 See Kenya Elections Domestic Observation Forum (KEDOF), “Preliminary Press Statement and Verdict of the 2007 Kenya General Election”, December 31, 2007; European Union Elections Observation Mission (EUEOM), “Preliminary statement: Doubts about the credibility of the presidential results hamper Kenya’s democratic progress”, January 1, 2008; Commonwealth Observer Group “Kenya General Election 27 December 2007: The Report of the Commonwealth Observer Group”, January 17, 2008. 53 Ibid. 54 There are several good accounts of the fraud in the tallying process, see for example Kenyans for Peace with Truth and Justice, “Countdown to Deception: 30 Hours that Destroyed Kenya”, Nairobi, January 17, 2008 , http://www.knchr.org/dmdocuments/KPTJ_Final_Press_Release.pdf (accessed March 4, 2008) and International Crisis Group, “Kenya in Crisis”, Africa Report No. 137, February 21, 2008, http://www.crisisgroup.org/library/documents/africa/horn_of_africa/137_kenya_in_crisis_web.doc (accessed March 4, 2008). 55 Electoral Commission of Kenya, Official Results, at: http://www.eck.or.ke/elections2007/index.php?option=com_content&view=article&id=3&Itemid=3 (accessed March 1, 2008). 56 Human Rights House, ‘Members of the Election Commission of Kenya Express Concern over Result,’ Nairobi, January 1, 2008, also available at: http://www.humanrightshouse.org/dllvis5.asp?id=6146 (accessed, February 24, 2008). 57 Human Rights House, “I acted under pressure - says Electoral Commission Chairman, Kivuitu,’ Nairobi, January 2, 2008, also at: http://www.humanrightshouse.org/dllvis5.asp?id=6145 (accessed, February 24, 2008). 58 See Kenya Elections Domestic Observation Forum (KEDOF), “Preliminary Press Statement and Verdict of the 2007 Kenya General Election”, December 31, 2007; European Union Elections Observation Mission (EUEOM), “Preliminary statement: Doubts about the credibility of the presidential results hamper Kenya’s democratic progress”, January 1, 2008; Commonwealth Observer Group “Kenya General Election 27 December 2007: The Report of the Commonwealth Observer Group”, January 17, 2008. 59 EUEOM “Preliminary statement.” |