Kenya's last leadership transition occurred in 1978, when then Vice-President Moi took power upon the death of Jomo Kenyatta, leader since the country's independence from the British in 1963. Once in office, Moi immediately clamped down on dissent. In the 1980s and early 1990s, many courageous lawyers and activists who were critical of the government were harassed and jailed or fled into exile, and the press was tightly controlled. A coup attempt by the Kenyan air force in August 1982 was aborted. In 1982, the constitution was amended to make KANU the only legal political party. In 1987, it was amended again to give Moi the power to fire senior judges and civil servants. Both amendments were repealed in the 1990s, but the executive branch continues to wield considerable control over the judicial and legislative branches of government through a system of patronage and threats. Throughout his tenure as president, Moi has rewarded certain individuals with government posts, jobs in government-owned companies known as parastatals, tracts of land, and other resources. This patronage has undermined the economy and the rule of law. Many Kenyans perceive that patronage has been bestowed most lavishly on members of Moi's Kalenjin tribe. This imbalance comes at the expense of Kenya's some forty other tribes and contributes to ethnic polarization. While much of Kenya's worst repression seems to be part of its past, corruption has helped to sustain a culture where injustice is often tolerated and protection for human rights is weak.
It was not until the end of the 1980s and the collapse of the Berlin Wall that foreign donors began to take a greater interest in democracy in Kenya and started funding local human rights and pro-democracy groups. There are now many such groups in Kenya; they monitor abuses, hold press conferences, and maintain an uneasy relationship with the government.
The 1992 and 1997 Elections
Shortly before the 1992 election, numerous opposition parties emerged, the largest and best organized of which was the Forum for the Restoration of Democracy (FORD). However, the leaders of FORD could not agree on a single presidential candidate, and the party split into three: FORD-Kenya, FORD-Asili, and the Democratic Party. In the first multiparty election since independence in 1992, Moi won easily against a divided opposition.
Before and after the election, there was widespread politically motivated ethnic violence, especially in the contested Rift Valley province. Hundreds of people were killed and hundreds of thousands of potential opposition voters were effectively disenfranchised when they had to flee from their homes. To date, tens of thousands of people remain displaced from their Rift Valley farms, and their land remains occupied by government supporters.1 The clashes are believed to have been instigated by powerful individuals within KANU, who took advantage of a long history of land disputes in the region to stoke tribal hostilities. The politicians promised members of the Kalenjin, Maasai, and other pro-KANU tribes that they would install a policy of "majimboism," which roughly translates as federalism, but is in fact a form of ethnic cleansing. Under majimboism, land is allocated based on ethnic identity. Members of tribes suspected of being opposition supporters were forced to leave their land, even if they held title deeds and had lived there for many decades. In 1992 and 1993, gangs of Kalenjin and Maasai youths attacked members of other tribes, targeting in particular the Kikuyu, the Luhya, and the Kamba, who were suspected of being opposition supporters. The youths looted their property, set their houses on fire, and killed several hundred people.2
The violence surrounding the elections did not prevent the many civil society groups that emerged in the 1990s from using mass demonstrations and legal challenges to force the government to implement many important reforms. The number of political detentions fell, small presses began publishing critical views of the government, and members of Parliament began to speak and vote more freely.
In the second multiparty elections of 1997, Moi again won easily against a fragmented opposition. Again, KANU politicians manipulated ethnic tensions to intimidate and disperse ethnic groups perceived to support the opposition. On the coast near Mombasa, KANU politicians engineered an organized "cleansing" before the election to evict Kikuyu and Luo migrants. Armed gangs killed hundreds of people in politically instigated attacks on homes and businesses. Similar clashes recurred in Rift Valley province.
Responding to public anger, KANU and the opposition came together to begin talks on reforming Kenya's constitution, which still contained a number of repressive colonial laws and which had been amended by both Kenyatta and Moi to buttress their semi-authoritarian state. Parliament reached a compromise known as the Inter-Party Parliamentary Group (IPPG) reforms. These reforms included the repeal of the laws against sedition that had been used to intimidate the press, the creation of an Electoral Commission that included opposition representation, and the replacement of laws requiring permits for public rallies with a simple requirement that the police be notified of planned rallies in advance. Political parties that had been denied registration would now be registered, and the state broadcasting corporation would now be required to give equal time to all political points of view. In addition, the twelve nominated MPs would now be appointed not by the president alone, but by each political party according to its share of the popular vote. The parties also eventually agreed to undertake a comprehensive constitutional review following the election.
The 2002 Election
Moi's choice of Uhuru Kenyatta angered some KANU ministers, who had hoped that the new candidate would be chosen by secret ballot at the party's nominating convention. When Moi refused to permit this, the ministers formed a breakaway faction within KANU known as the Rainbow Coalition. Rainbow was led by Raila Odinga, former head of the largely Luo National Development Party, which had only recently merged with KANU. In October 2002, the Rainbow Coalition finally abandoned KANU and joined an opposition political party known as the Liberal Democratic Party (LDP). Meanwhile, most of the other main opposition parties were determined to avoid splitting the vote. Thirteen opposition parties, representing many different geographical regions and all of Kenya's major tribes, came together to form the National Alliance Party of Kenya (NAK). In October 2002, NAK and the LDP merged to form a super-opposition alliance known as the National Rainbow Coalition (NARC), with Democratic Party Chairman Mwai Kibaki, also a Kikuyu, as its single presidential candidate, and Odinga as candidate for prime minister.
Even if NARC wins, it will not necessarily represent a significant break with the past. Many members of NARC, including former Vice President George Saitoti and Kibaki (himself a former vice-president under Moi) are past members of KANU; some have been implicated in serious economic crimes and human rights abuses, including the politically motivated ethnic clashes. As the election drew near, more and more KANU MPs and officials defected to NARC. This is why Kenya needs more than new leadership. It needs systematic reform on a grand scale, which is why the fate of the draft constitution many be of even greater potential significance than the election.
Moi's Legacy: A Nation Impoverished by Corruption
The flight of foreign investors wary of corruption and the plunder of public resources that might have been invested in development have plunged Kenya into a vicious cycle of patronage, corruption, and deepening poverty. Kenya's economic growth rate fell to less than 2 percent last year, the lowest in the region.3 The average Kenyan was poorer in 2002 than he was two decades earlier, and more than half the population lives in poverty. Deteriorating health services are unable to deal with the nation's considerable health burden, including worsening epidemics of HIV and tuberculosis. School enrollment and matriculation rates are now lower than they were ten years ago. Half of Nairobi's population of 3 million people lives on 6 percent of the land in shantytowns, and poverty is now increasing faster in urban than in rural areas.4
According to a recent parliamentary report on corruption, bribery occurs in virtually every sector of society, from government ministers, the judiciary, the police, health services, and local and provincial authorities. 5 It is ironic that levels of corruption may well have increased since the introduction of multiparty elections and other political reforms in the past decade. International and domestic pressure for reform have made it more difficult for Kenya's leaders to consolidate power through conventional repression. As a result, they may be turning to bribery, patronage, and theft of public funds with even greater zeal than before.6
During the past decade, a spate of corruption scandals have cost the Kenyan people, many of whom are hungry and lack adequate shelter, health care, and clean water, billions of dollars. The numerous inquiries and commissions that have been set up to investigate these scandals have produced no reports or recommendations, let alone convictions or reparations. In the early 1990s, shortly before the first multiparty elections, the Treasury created an illusory explosion of wealth in Kenya by printing billions of shillings. The resulting inflation impoverished millions of rural people. In the infamous "Goldenberg scandal" of the early 1990s, more than U.S.$100 million was stolen from public coffers when a politically connected businessman received export compensation for diamond jewelry and gold that apparently did not exist. Several Treasury and KANU officials have been implicated in the case, but no reports were ever made public, and no one has been held accountable.7 Around the same time, millions of shillings disappeared from the National Social Security Fund. Again, no one has been held accountable.
Later in the 1990s, large amounts of imported sugar and maize were reportedly smuggled into the country duty-free.8 Before Kenya joined COMESA (the East and Southern African Common Market) in the mid-1990s, food imports were subject to very high duties and were very expensive. The smuggled goods were sold at the same prices they would have fetched had they been subject to duties, but it is not known where the profits from these sales, estimated in the millions of shillings, went.9
Perhaps the most widespread and disturbing form of corruption is the illegal appropriation of public land by government ministers, other politicians, senior civil servants, and their relatives. Thousands of people have been displaced by the illegal appropriation of huge tracts of land that once served as pastures, gardens, villages, playgrounds, and other public spaces for generations of poor people. Such land transactions are often highly secretive, and procedures required by law are rarely followed. According to the Parliamentary Select Committee Report on Corruption in Kenya, "The irregular allocation of Agricultural Development Corporation farms as well as forests and research stations to well connected individuals has been shrouded with secrecy and corruption. There has been no proper valuation, advertising and tendering before disposal and Kenyans have been badly fleeced."10 In 1999, the government established the Commission of Inquiry into Land Law and Policy, but it had produced no reports or recommendations as of October 2002. Its chairman, former Attorney General Charles Njonjo, refused to speak to Human Rights Watch.
In August 2002, 256 million shillings disappeared from the National Social Security Fund and ended up in a dubious account in a private bank. At the moment, no one seems to know where the money is, although a stockbroker has been arrested and is being questioned by the police.11 At first, the authorities tried to silence a whistleblower who reported the missing money in the first place. In September 2002, Federation of Kenya Employers Chairman Walter Mukuria was arrested and held for several hours for questioning in the disappearance of the money.12
In September 2002, a group of Kenyan investors attempted to buy Kenya Re-Insurance Company, a parastatal slated for privatization, for about half its true value. Had the sale gone through, it would have cost the people of Kenya many millions of dollars, and created havoc in the insurance industry. The deal was suspended, and now a Zimbabwean re-insurance company has come in with a much better offer for the company.
The government's failure to deal seriously with high-level corruption has not only cost Kenya billions of dollars of lost revenues from within Kenya itself, but also nearly $350 million in stalled financial support from the International Monetary Fund (IMF) and World Bank, and bilateral aid from donor nations. Donor support was withdrawn after the Kenyan Parliament failed to pass legislation to establish a permanent, independent, anti-corruption authority in October 2001. Subsequently, the government did establish a Parliamentary Select Committee on Corruption, as well as an Anti-Corruption Police Unit and three anti-corruption courts. In addition, two new bills are under consideration in Parliament: a Public Officers' Code of Ethics; and a Corruption Control Bill setting up a new anti-corruption authority.
These moves did not satisfy the international community. Nevertheless, the chairman of the Anti-Corruption Police Unit advisory committee, Tom Owuor, believes this new institution is working well. It has received good cooperation from the police department and has begun to recommend cases for prosecution. However, the unit is not independent of government control, and it has mainly dealt with only low-level graft cases so far, such as the extraction of bribes by the traffic police. To prosecute cases, the unit needs the consent of the attorney general, who has not prosecuted any significant corruption cases in the past decade.13 While critics dismissed the unit as "public relations," it has begun a promising education program for police officers and ministry officials. Also, investigators have started to dig into corruption scandals in the Ministries of Finance, Health, and Roads and Public Works. The three anti-corruption courts have begun prosecuting cases, albeit minor ones.
Many other laws passed since independence increased the president's administrative power, particularly his control of provincial administration, so that today the president appoints all administrative officials down to the level of village chief. Only local councils are elected, but they have small budgets and relatively little power. Several important limitations on executive power were passed in the early 1990s, including a constitutional amendment restricting the president to two five-year terms in office, the legalization of political parties, and the repeal of the amendment permitting the president to fire judges. Even so, the president can still manipulate justice in every corner of the country.
The draft constitution proposes trimming presidential powers by giving Parliament more authority, including the ability to impeach the president. It would also create the post of executive prime minister. The prime minister and two deputy prime ministers would run the day-to-day affairs of government, and the president would become the symbol of the nation and guarantor of human rights. The document also recommends devolving power to locally elected officials and abolishing the powerful provincial administration, which is now appointed by the president. It would also distribute legislative power by creating a second chamber of Parliament.
The president's power currently is enhanced by a system of patronage and corruption. To address this, the new constitution would establish various new commissions to oversee different organs of government, including a Commission on Ethics and Integrity to oversee public servants, a Human Rights and Justice Commission, a Judicial Services Commission, and an improved and transparent Land Commission. Members of civil society, including under-represented groups such as women and the disabled, would sit on these commissions, and their oversight should strengthen the rule of law.
It remained to be seen whether the new constitution would be implemented, given the long history of government resistance. The constitutional review process got underway in 2000, when the government appointed the Constitution of Kenya Review Commission (CKRC), consisting of seventeen MPs and ten representatives from a civil society group known as Ufungamano-mainly religious leaders who had been pushing for constitutional reform for years. -The commission began soliciting the views of human rights groups and other NGOs, as well as ordinary Kenyans, about the reforms they wanted to see in the new constitution. Moi has repeatedly tried to block the constitutional review process, or at least delay it until after the 2002 election, through parliamentary maneuvers and secret meetings with members of the CKRC.15
In September 2002, two KANU-backed lawyers won an injunction to block the commission from presenting its proposals on judicial reform. Leaked documents indicated that the review commission had concluded, and a great many Kenyans who had participated in the review process agreed, that many High Court and Court of Appeals judges were corrupt and should step down. The commission proposed that those who chose not to step down should submit to an inquiry. Two senior judges also joined the campaign to stop debate on judicial reform. The commission defied the injunction and issued its draft, including the section on judicial reform, on September 27, 2002. As protests over the judicial clampdown spread, citizens began wearing yellow ribbons in support of the constitutional review commission and its chairman, Yash pal Ghai.16
Following the document's publication, a month-long nationwide debating period began that was to culminate in a National Constitutional Conference and a parliamentary vote on whether or not to ratify the constitution. However, in late October 2002, Moi dissolved Parliament and set the date of the election for December 27, 2002. This meant that the new constitution could not possibly be ratified until after the election. The National Constitutional Conference was due to begin on October 28, but when the civil society delegates and members of the review commission arrived at the venue they found their entry blocked by a ring of armed policemen.
The new constitution and strengthened institutions currently offer the best hope for expanded human rights protection in Kenya. The new government should bring the constitutional review to completion by promoting public and parliamentary discussion of the draft.
1 Human Rights Watch/Africa, Divide and Rule: State Sponsored Ethnic Violence in Kenya (New York: Human Rights Watch, 1993); Human Rights Watch/Africa, Failing the Internally Displaced: The UNDP Displaced Persons Program in Kenya (New York: Human Rights Watch, 1997).
2 David Throup and Charles Honsby, Multiparty Politics in Kenya, (Athens, OH: Ohio University Press, 1997); Jacqueline Klopp, Electoral Despotism in Kenya: Land Patronage and Resistance in the Multiparty Context, unpublished dissertation thesis, Department of Political Science, McGill University, Montreal, 2001; Human Rights Watch, Playing with Fire: Weapons Proliferation, Political Violence and Human Rights in Kenya (New York: Human Rights Watch, 2001); and Report of the Judicial Commission appointed to inquire into tribal clashes in Kenya. The Honorable Mr. Justice A.M. Akiwumi. Government of Kenya. Submitted August 1999. Released October 2002
3 Extensive corruption, weak rule of law, and escalating insecurity are responsible for Kenya's worsening poverty, and poor governance is the key reason for Kenya's slow 1.8 percent growth rate, according to the United Nations Economic Commission for Africa's annual report, issued in July, 2002.