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The Response of the Kenyan Government

For several weeks, the Kibaki administration appeared unperturbed by the controversy and violence that followed the December polls, insisting on the legitimacy of its re-election. Negotiators dragged their feet for more than nine weeks before a power-sharing arrangement was finally reached, a delay that cost hundreds of Kenyan lives.

The Kibaki government initially reacted to mediation efforts with cynicism and intransigence, refusing to agree to any compromise. Instead of working to resolve substantive issues, the Kibaki government used the violence as an opportunity to taint the ODM leadership with as-yet unsubstantiated accusations of sponsoring ethnic cleansing and other international crimes. When a settlement was finally brokered, it was only after a host of Kenya’s international partners had done everything possible to pressure Kibaki into compromise.

Now that a political agreement on power-sharing has been reached and all political parties appear committed to a coalition government, politicians from all sides have a shared responsibility to uphold the state’s duty to protect and safeguard the rights of its citizens.  They also have a shared duty to make sure that their written commitment to end impunity and identify perpetrators is made a reality through the actions of the police and the Commissions of Inquiry and Truth, Justice and Reconciliation established through the mediation process.

The Role of the Police

Allegations of Partiality

In the circumstances, the police can reasonably claim to have been overwhelmed by the scale of the violence.²²³ They have a considerable task simply protecting those displaced by the violence and maintaining ordinary security where law and order has broken down. However, the police response to the protests and the violence varied significantly from place to place. The degree to which the police response was selective or partial is an issue that must be further investigated in relation to both the criminal investigation of individual responsibility for human rights violations and the inquiries into the overall policing response to the demonstrations and riots and to the incidents of spontaneous and organized violence.

The police responded in an uneven fashion to the political, ethnic-based violence. 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. In Eldoret on the other hand, police were often slow to respond, but nevertheless Human Rights Watch documented several cases where officers intervened to prevent gangs from attacking.²²⁴ The army was deployed in response to the chaos in Naivasha and Nakuru but not during the serious violence in Kisumu or Eldoret.²²⁵ Meanwhile, in Molo, the co-ordinator of the IDP Network, an NGO, was reportedly beaten by police who had sided with Kalenjin militias.²²⁶ The decisions and the actions of police commanders on the ground need to be investigated to understand what orders were given and what actions were taken or not taken in response to similar threats.

In this highly polarized and volatile political environment, the spotlight is on the police to ensure that all acts of violence against persons from any community are investigated with equal rigor. Many communities are quick to allege that that they are not being fairly treated because of political bias.

In Eldoret Human Rights Watch met senior officers from the Criminal Investigations Department (CID) who had been dispatched from Nairobi to take statements from displaced persons and investigate the organization of violence by Kalenjin leaders. To date, these investigations have led to at least six arrests of local leaders, including Jackson Kibor, a prominent Kalenjin chief previously named in the Akiwumi report for organizing violence.²²⁷ However, no Kikuyu leaders have been apprehended for their part in the reprisals in Nakuru and Naivasha. Despite assurances from police headquarters in Nairobi that investigations into the violence in Nakuru and Naivasha are ongoing,²²⁸ the non-Kikuyu victims of clashes in displaced camps in Naivasha and Nakuru say the police have not come to take their statements.²²⁹ Thirty-seven suspected members of the Mungiki sect were arrested in February and 20 of them charged with membership of a proscribed society, but not for involvement in recent violence, according to the police.²³⁰

With a coalition government in place, the spotlight will be on the police to demonstrate the utmost impartiality in its work and especially in the equitable deployment of officers and resources to investigate all allegations of incitement and organization of violence, on all sides.

Police Overstretch

Both major political parties committed themselves at the mediation process to the “identification and prosecution of the perpetrators” of the recent violence.²³¹ However, the police face clear limitations in their capacity to carry out investigations.

Even the police themselves acknowledge that investigations and prosecutions for past and recent crimes have not received the attention they require.²³² As noted by the Independent Medical and Legal Unit, the police have not been opening cases for every unnatural death as required by law.²³³ The Oscar Foundation, a human rights watchdog, also faulted the government for not even recording deaths, let alone investigating them.²³⁴

The police reported that as of February 20 they had opened 5,600 case files where an offence had been committed and there is a recognized need to investigate and identify the perpetrator.²³⁵ However, they have barely made a dent in that case load. As of February 20 they had arrested 232 people against whom the police have “a serious case,” and of these, 100 are pending before court.²³⁶

Human Rights Watch examined court records in Naivasha where 156 persons were arrested on charges of ‘preparing to commit a felony’. All were released on bail because the police had insufficient evidence for the court to deny bail. The charge was later downgraded to ‘possession of an offensive weapon’, a misdemeanor in Kenya, to which many pleaded guilty and, after a small fine, were released.²³⁷  Eighteen others absconded whilst on bail.²³⁸

The police say they have opened 142 investigations into the conduct of some of their officers. Twenty have been fired for demanding bribes for providing escorts and five police officers have been charged including a murder charge for the officer filmed shooting unarmed protesters in Kisumu.²³⁹ But 142 individual cases of police shooting, not all of them fatal, does not begin to capture the scale of those killed and injured by the excessive actions of police officers. Larger, more far-reaching inquiries are needed if the Kenya police is to truly address the use of excessive force and arbitrary killing, and undertake much-needed reform. Moreover, any investigation run solely by the police without independent oversight and control or real transparency will lack credibility.

Going forward, it seems clear that the police are stretched beyond their capacity and will need considerable assistance, possibly from international agencies. 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.

Restrictions on the Media and Freedom of Assembly

Arguably, it was the government’s ban on public gatherings that set the stage for violent confrontations between police and angry opposition supporters. Attempts to enforce the illegal ban led to many unnecessary deaths and rampant police abuses. The ban also required considerable police resources that might have been more usefully employed protecting citizens and displaced persons elsewhere in the country. The ban was finally lifted on February 8.²⁴⁰

The government also finally lifted its ban on live broadcasts on February 4 after more than a month.²⁴¹ Justified by the government as a necessary measure to control hate speech, the ban was widely condemned by international and national human rights organizations as an attempt to control basic information about the crisis.²⁴² 

Kenya National Dialogue and Reconciliation

The power-sharing agreement signed on February 28 brought relief to all Kenyans. The new coalition government is expected to take shape following the passage of the National Accord and Reconciliation Act in Parliament, the creation of the post of prime minister through a constitutional amendment, and the appointment of deputy prime ministers from both major parties.

There has been significant discussion of the agenda for the new government, building on the list of issues Kofi Annan identified with the parties, and announced on February 15. Annan mentioned:

Reforms and mechanisms… not limited to the following: comprehensive constitutional reforms, comprehensive electoral reform – including of the electoral laws, the electoral commission and dispute resolution mechanisms; a truth, justice and reconciliation commission; identification and prosecution of perpetrators of violence; respect for human rights; parliamentary reform; police reform; legal and judicial reforms; commitment to a shared national agenda in parliament for these reforms; other legislative, structural, political and economic reforms as needed.²⁴³

Former Nigerian foreign minister, Prof. Oluyemi Adeniji, took over as the lead mediator when Annan departed on March 2, and he has announced a road map for the talks to address these many issues.²⁴⁴ There is a surprising consensus among politicians and civil society on the problems with Kenya’s existing institutions and the failures of successive governments to address the shortcomings. The challenge is not in reaching agreement but in the scope of the changes required. Annan’s list reflects nothing less than a complete overhaul of Kenya’s systems of governance and a U-turn in the culture and practice of government.

Making these changes a reality should be the proper response of the new coalition government to the crisis that has rocked Kenya and left so many dead and homeless. In doing so, the government will need much monitoring from civil society to deliver on its promises and to ensure that it properly confronts difficult choices, especially when it comes to accountability for past and current crimes.

Impunity is at the heart of Kenya’s crisis of governance. On the one hand impunity for incumbent politicians suspected of looting public resources, a national tradition in Kenya, creates a situation that raises the stakes for incumbents as they seek to avoid investigation or prosecution if they lose office. And on the other hand, impunity for past episodes of electoral violence has contributed to its continued use as a political strategy. In 2002, politicians who had been publicly named for their role in political violence, notably George Saitoti and William Ole Ntimama, were appointed to Kibaki’s cabinet.

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. There will be a temptation among some Kenyan politicians to ignore accountability and ‘move on’. Indeed there have already been some suggestions that suspects should be released by the police.²⁴⁵ Such moves must be resisted.

Some of the reforms described and being discussed by parties in the coalition government are rightly the preserve of the executive and parliament. However, other mechanisms are being established through the mediation process, such as the Independent Review Committee to examine the electoral failures and recommend remedies and election reforms; the Truth, Justice and Reconciliation Commission to examine human rights violations and historical injustices including corruption and land-grabbing dating from independence in 1963; and the Commission of Inquiry into recent violence which will examine, more narrowly, human rights violations including the response of state security forces between December 28, 2007 and February 28, 2008.

On paper, the terms of reference for these initiatives are impressive.  There is one obvious omission in that neither the Committee examining the election nor the Commission of Inquiry into the violence is explicitly charged with investigating and recommending prosecutions under the Electoral Offences Act.  Those who contributed to the rigging of the election should be held to account.

The challenge for the government will be in ensuring that the recommendations of the Committee and the Commissions actually result in criminal investigations and prosecutions.  Previous government reports documented widespread involvement of politicians and state officials in fomenting violence around elections, in some cases less than ten years ago, and yet no action was taken.²⁴⁶  The Truth, Justice and Reconciliation Commission’s terms of reference say that there will be no “blanket amnesties”.²⁴⁷  It should be remembered that the clashes of 1991 to 1993, 1997, and 2002 are recent events; they are not historical crimes to be forgiven and forgotten. Some of the perpetrators are still in parliament. The Truth, Justice and Reconciliation Commission and the Commission of Inquiry must lead to justice, namely prosecutions and convictions, not be a vehicle for delaying or avoiding it.

In addition, long-running land grievances need to be addressed through a comprehensive solution, including passing laws to recognize historic occupation and use (including collective rights) and setting up a dispute resolution system that will investigate, determine, and remedy historic land disputes, including through compensation. This will need adequate financial support from the Kenyan government and donors.

A power-sharing arrangement is only the first step. The next months are a crucial moment of transition. Kenya has an opportunity to become a continent-wide example of a state willing to face historical injustices and guarantee the rights of its citizens. To do so, its leaders must deliver on the reforms and hold firm to the terms of the commissions charged with ending impunity and ensuring the accountability that is essential for the rule of law.