H.E. Prof. Alpha Oumar Konare
Addis Ababa, Ethiopia

Your Excellency,

Human Rights Watch very much welcomes your public statement on the Voice of America on January 27 calling for an immediate end to tensions in Kenya and a durable solution to the current political crisis.

This week, the African Union summit's handling of the crisis in Kenya could influence the course of events on the ground there. Representatives of Mwai Kibaki's PNU may seek formal recognition at the summit as the duly elected government of Kenya. We understand that those representing Raila Odinga's ODM will also be in Addis Ababa.

For the last month, Human Rights Watch has been in Kenya documenting the chain of events that has led the country to its current, perilous, situation. The December presidential poll was widely believed by international and domestic observers to have been stolen by the ruling party.

The violence that followed has led to the death of hundreds of Kenyans, notably in Kisumu in western Kenya and in the Rift Valley. Police have carried out extra-judicial killings and used excessive force in response to legitimate protest. Hundreds of thousands of Kenyans have also been displaced and are in urgent need of protection. Human Rights Watch has also documented how, in parts of western Kenya, local opposition leaders contributed to organized violence against those perceived to be PNU supporters. Full details of our research findings - and recommendations - to date can be found in the attached documents.

In the past few days, Kenya has been moving towards a cycle of violence that may be hard to contain. There are now allegations that elements connected to the ruling party have been funding and facilitating Kikuyu militias such as Mungiki to carry out revenge attacks on communities perceived to be supporters of the opposition. Moderate journalists and rights activists have received credible death threats for speaking out against the government. All of these allegations need to be thoroughly and impartially investigated. Prosecutions of all those implicated in organizing and inciting violence must follow.

As you yourself have rightly said, the African Union has a duty to face this situation and guide Kenya away from possible tragedy.

In its dealings with the parties, we encourage the AU to address the following concerns.

There is an onus on all the political leadership, including ODM leaders, especially at the local level, to actively take steps to prevent future violence. But it is also evident that Mr Kibaki is primarily responsible for the rigged election, and, therefore, for the violence that has followed. His actions and public statements have exacerbated tensions rather than the reverse. In Kenya, the president appointed the electoral commissioners and effectively controls that institution. It is also the president who appoints the judges, so an impartial legal ruling on the election and its aftermath is at this point unrealistic. Mr Kibaki also appears the least willing to take the necessary compromises to resolve the situation. We encourage the AU not to reward him for his intransigence.

The AU has mechanisms for dealing with flawed elections. A number of articles in the African Charter on Democracy, Elections and Governance apply to the current Kenya situation, notably on democratic elections. The AU took specific measures in 2005 following the unconstitutional change of government in Mauritania and the flawed succession process in Togo. By doing the same on Kenya, you will show both sides that it cannot be "business as usual" until the rights of all Kenyans are respected.

Human Rights Watch believes that while the solution to the crisis in Kenya appears difficult, there is nonetheless a clear way forward based on the principles of democracy and human rights. We urge the AU to implement the following recommendations:

  • Condemn violence on all sides, urge the political leadership of both the ruling and opposition parties to issue immediate calls on supporters to cease violent attacks and support independent investigations into the violence.
  • Call for an independent international audit of the December elections. If an investigation cannot establish who won the December presidential poll then a new election should be held. Kenyans have the right under the AU Charter to transparent, free and fair elections.
  • Urge that electoral, legislative and administrative reforms and a period of transition precede any new elections.
  • State that any political settlement must meaningfully address the underlying causes of the current crisis and provide accountability for the violence that has occurred to ensure reconciliation and stability.

The latter would, as you yourself have rightly stated, avoid the problems of an artificial power-sharing arrangement that does not address the root causes of the current violence. Reform is also necessary to ensure a durable solution: a new dispensation where the rights of all Kenyans are respected.

We will be urging other international actors, in particular the US and EU to coordinate with your efforts. We will also be urging the EU and US to suspend direct government assistance and consider further sanctions that would be lifted only when specific human rights benchmarks are met.

Your Excellency, we look to the African Union to use its good offices to help move Kenya back towards peace and justice.

Sincerely,

Georgette Gagnon
Acting Director, Africa Division

CC: To all member states of the African Union Peace and Security Council