Background: Kenyas Long-Term Crisis of Governance
Many commentaries on the post-election violence in Kenya have referred to the violence in contrast to Kenyas stable image or reputation for stability.1 If indeed Kenya did have such a reputation before the controversial general election of December 27, 2007, it took little account of Kenyas recent political history.
Every election since the establishment of a multi-party system in 1991 witnessed widespread violence.2 That violence is linked to long-standing grievances and failures of governance that run deeper than electoral politics. Kenya has a history of widespread corruption and systemic abuse of office by public officials that has resulted in a situation in which encouraging statistics about economic growth (6.4 percent for 2007)3 coexist with depressing figures of crushing poverty (58 percent of the population lives on less than two US dollars a day).4 Political contests have become all the more charged because of what is at stake; those who achieve political power benefit from widespread abuses including impunity for political manipulation of violence, criminal theft of land, and the corrupt misuse of public resourcesindulgences which occur at the expense of groups who are out of power.
The government of Mwai Kibaki came to power in 2002 pledging to correct these and other chronic failures of governance.5 In one positive step, the Kibaki government established the Kenya National Commission on Human Rights (KNCHR), an important and genuinely independent institution. In general, however, promises of reform were not fulfilled. Despite a promising startwhich included improvements in freedom of expression and association coupled with strong economic growthcorruption, patronage politics, state-sponsored violence, and persistent police abuses have defined the order of the day.
The current crisis in Kenya will not be resolved through power-sharing alone. The Commissions established by the National Dialogue and Reconciliation process represent a strong and positive start, but if their recommendations are not implemented and no one is brought to justice, political violence could return to haunt Kenya again. Lasting solutions require a thorough overhaul of Kenyan institutions and a serious attempt to redress deep-seated problems that have been ignored or exacerbated for too long by those in power. Chief among these problems are the ownership and allocation of land, the constitution, and impunity for corruption and the organization of political violence.
A Century of Land Grievances
Land seized by British colonists cut a swathe through Kenyas modern-day provinces of Rift Valley, Nyanza, Western, and Central, creating an area that became colloquially known as the White Highlands. In total, British and other European settlers took 20 percent of Kenyas land, most of it prime agricultural spots.6 At independence in 1963 some of this was handed over, not to the people from whom it had been taken, but to the new government and government officials, using the colonial laws that the British had themselves drafted. These laws made no provision for the collective land rights of communities.7 The introduction of the concept of private individual property, without the recognition of collective land rights, upset the traditional arrangements of many indigenous groups, many of which based their land occupation and use on traditional collective practices, such as pastoralism. Colonial laws also treated natives as incapable of holding direct land title, instead having land held on trust for them by governmental authorities.
After independence the new government under Jomo Kenyatta did not recognize customary land use in law or practice but instead sold the land it acquired from British settlers under the principle of willing seller, willing buyer. But much of the land ended up in the hands of members of Kenyattas Kikuyu ethnic group rather than with the communities from which it had been taken.8 Kenyatta also used the land for patronage purposes and to build alliances, a pattern that continued and increased under his successor President Daniel arap Moi.9 Colonial trust land remained in place with respect to the historic land of certain groups, including many pastoralist groups who were still deemed, in effect, incapable of holding direct land title.
The National Rainbow Coalition (NaRC) that brought President Kibaki to power in 2002 was supposed to resolve the land issue once and for all. This was one of NaRCs major campaign promises.10 To that end, Kibaki launched the Ndungu Commission to investigate patterns of corruption and unfair allocation of land and to propose remedies. The final report was deemed too controversial and the Kibaki government never implemented the recommendations.11 The report notes the importance of land in Kenya, stating, land retains a focal point in Kenya's history. It was the basis upon which the struggle for independence was waged. It has traditionally dictated the pulse of our nationhood. It continues to command a pivotal position in the country's social, economic, political and legal relations.12
The report also noted that the practice of illegal allocations of land increased dramatically during the late 1980s and throughout the 1990s and land was to become granted for political reasons, or simply subject to 'outright plunder' by 'a few people at the great expense of the public.'13 A common problem was corruption in the allocation of trust land for settlement schemes established by the government. [In] the establishment of settlement schemes the interests of the landless [were] ignored in favour of those of 'District officials, their relatives, members of parliament and other influential people [Commission: p.147].14 David Anderson of the University of Oxford estimates that, according to satellite mapping of the violence in the Rift Valley, 95 percent of the recent clashes in that area have occurred on land affected by these schemes.15
Kikuyu farmers, but also purchasers from other parts of the Rift Valley, bought land from politically connected people who had often acquired purported legal title to the land by legally dubious means. Others bought land from local people. While most of these purchasers of small plots of land did not directly participate in corruption, increased land pressures over time helped deepen a sense of local grievance over the unfair taking of their land that local politicians could use in their campaigns.16 Animosity was incited and directed against the Kikuyu settlers, often ignoring the role of local leaders who contributed to and benefited from this corrupt allocation of land.
The Commission also found that most illegal allocations of public land took place before or soon after the multiparty general elections of 1992, 1997 and 2002.17 At the same time Kenyas population was increasing rapidly, making pressure on land an explosive problem by the turn of the twenty-first century.
The report of the Ndungu Commissionand that of its predecessor the Njonjo Commissionalso found clear solutions to the problems identified. The recommendations of the Commission included an inventory of public land, a comprehensive land policy, and the establishment of a Land Titles Tribunal that could review each and every case of suspected illegal or irregular allocation of land. Many of these sensible ideas are contained in the draft land policy drawn up by the Ministry of Lands in 2006.18 However, neither that policy nor any of these important recommendations have been implemented. Kenya is also bound by international law, such as the African Charter on Human and Peoples Rights, which requires it to ensure the right to property, and the right of all peoples to freely dispose of their wealth and natural resources. The African Charter says that dispossessed people have the right to the lawful recovery of their property as well as to adequate compensation.19
Fifty Years of a Temporary Constitution
Kenya is still governed according to a colonial-era constitution that places overwhelming power in the hands of the central government and, in particular, the president, weakening parliamentary scrutiny and judicial independence, and creating the risk of a winner-takes-all calculus when it comes to elections. Constitutional reform has been a central talking point in Kenyan politics for decades, but to date every attempt to realize that vision has stalled.
Pre-independence differences over the kind of constitution Kenya needed have never been properly resolved. The leading political party before independence, dominated by Kikuyu and Luo politicians, was the Kenyan African National Union (KANU) led by Jomo Kenyatta. Other ethnic groups, wary of being dominated by the larger ethnicities, and thus losing control of their local resources (especially land), formed the Kenyan African Democratic Union (KADU) which favored a type of federalism, called majimboism in Swahili, which proposed semi-autonomous regions based on ethnicity.20 The smaller ethnic groups including the Kalenjin, led by, among others, former President Daniel arap Moi, favored this kind of federalism. Opponents called it chauvinist and tribalist.21 When KANU won the election, Kenya soon became a de facto one party state characterized by a strong centralized government. Regional powers were abolished.22
When Moi became president, federalist sentiments were suppressed, with its most vocal proponents being co-opted into supporting Moi. However, with the re-introduction of multiparty politics in 1991, the debate resurfaced with a vengeance. Politicians in the Rift Valley and the coast incited and organized pogroms against outsiders, mostly Kikuyu, Luo, Luhya, and Kisii migrants who had migrated to those regions seeking land and jobs, people whom the local politicians feared would not vote for them in the ethnicized politics of Kenya.23 Thousands died and hundreds of thousands were displaced.24 High-ranking politicians at the time, many of whom are still active in politics in 2008, made inflammatory speeches in support of this chauvinistic interpretation of majimboism that led to ethnically-based violence. 25
When Kibakis NaRC came to power in 2002 it promised a new constitution within 100 days of its inauguration. Instead, differences about the drafting contributed to the collapse of the NaRC coalition. Kibaki delayed and watered down key reforms in the draft that emerged from the National Constitutional Conference, such as the reduction of presidential powers, the creation of a new post of prime minister, parliamentary oversight of the central government, land rights, and judicial independence. The government finally put the watered down draft to a national vote in 2005.26 Raila Odinga and those opposed to the draft won an easy victory, and Kenyas struggle for constitutional reform was set back to square one.27
Anger about the failure of the constitutional process and demand for a new one was again a defining issue of the 2007 general election campaign, with ODM promising a majimbo federalist constitution. As the International Crisis Group noted, The Orange movement tried to dissociate itself from the violent and ethnic chauvinist stigma attached to the majimbo debate but also knew the confusion would rally maximum support among the Kalenjin, Maasai, Turkana and Samburu communities of the Rift Valley, as well as coastal populations.28
Political Violence and Decades of Impunity
The political manipulation of ethnicity is almost a tradition in Kenyan politics, along with impunity for those implicated in fomenting political violence.29 Among the most explosive periods in Kenyas post-independence history was between 1991 and 1993 when President Moi tried to stir up sentiment against the Kikuyu in the Rift Valley. The purpose was to consolidate Mois vote in the Rift Valley (the area with the most parliamentary seats) among the Kalenjin by driving out those unlikely to vote for him, in particular the Kikuyu.30 The clashes in the Rift Valley and on the coast left up to 1,500 people dead and 300,000 displaced.31 The clashes were provoked and often inflamed by politicians in both the ruling and opposition parties, but ruling party members were rarely if ever chastised, much less prosecuted, for their role in inciting violence. As Human Rights Watch noted in 1993:
No one was held accountable for organizing those clashes, despite the naming of many senior politicians in government reports.33 Violence sparked again around multiparty elections in 1997-98, and investigations once more pointed the finger at politicians for inciting and organizing it.34 The government-sponsored Kiliku and Akiwumi judicial inquiries documented incitement, financing, and land-grabbing by hundreds of individuals connected with the administration. The Akiwumi report in particular, which had a wide-ranging brief to investigate the clashes from 1991, included an appendix listing 189 people adversely mentioned in the report including Mwai Kibaki, current Minister for Internal Security, George Saitoti, and numerous members of parliament, former MPs, district and provincial commissioners, councillors and government employees.35
The Akiwumi report, completed in 1999, was initially suppressed and only released in 2002 just before the Kibaki government came to power. The reports findings were completely ignored by the incoming administration. Justice Akiwumi recommended investigation and prosecution of those mentioned in the report but not one case was opened as a result of his findings. The Task Force report on the Establishment of a Truth, Justice and Reconciliation Commission was equally shelved.36
The referendum campaign of 2005 also witnessed campaigning along ethnic lines. The Kenya National Commission on Human Rights (KNCHR) documented incitement and hate speech during the referendum campaign and called for the investigation and prosecution of 16 sitting and former members of parliament.37 Nothing happened. In a further report,38 KNCHR documented more examples of incitement and hate speech during the 2007 general election campaign. No investigations or arrests have been made.
From August 2007 onwards, violence broke out well before the polls as candidates jockeyed for nominations within the parties.39 The European Union observers noted that 34 election-related deaths had been reported, and catalogued 190 violent incidents, ranging from intimidation to murder, between August and December 2007, most occurring in Western, Nyanza, and Rift Valley Provinces.40 The EU mission noted that, In most cases, abuses did not receive an appropriate response from the police and the judiciary and there was therefore impunity towards perpetrators. Candidates were also observed using hate speech on a limited number of occasions.41
Pre-elections, throughout 2007, there was a considerable increase in violence in Kuresoi, Molo, and Mount Elgon between different ethnic groups supporting different candidates, resulting in 200 deaths and up to 70,000 displaced.42 Several politicians and local leaders were implicated in this violence,43 but no politician has yet been held accountable for their role in violence. The IDP Network of Kenya before the election complained that:
The report also details several cases where local leaders have been arrested and set free as a result of suspected political interference.45 Human rights activists in Molo reflected similar frustrations with the administration and the police. They cited an example of one chief who had been arrested five times for his role in inciting and organizing violence but who had been released each time.46
The election campaign itself was virulently divisive, with politicians on both sides characterizing their opponents in derogatory terms linked to their ethnicity. The European Union Observer Mission noted: The campaign atmosphere was also characterized by a strong ethno-political polarization between the two main contenders in the presidential election and their alliances, leading to a generally tense atmosphere in their respective regional stronghold towards the other side.47
1 On the other hand, Salim Lone, the spokesman for the opposition ODM party, noted in an article before the election that, simmering crises, whose most visible consequence is an epidemic of criminal mayhem in towns and villages as well as ethnic-cleansing attempts by land-starved communities seeking to drive outsiders out, could combine to unravel this thin veneer of stability. Salim Lone, Slithering Snakes, BBC Focus on Africa, October-December 2007, p.26.
2 See Africa Watch (now Human Rights Watch/Africa), Kenya- Divide and Rule: State Sponsored Ethnic Violence in Kenya (New York: Human Rights Watch, 1993), http://hrw.org/reports/1993/kenya1193.pdf; Kenya: Playing with Fire: Weapons Proliferation, Political Violence and Human Rights in Kenya (New York: Human Rights Watch, 2002), http://www.hrw.org/reports/2002/kenya/. See also the Report of the Judicial Commission Appointed to Inquire into the Tribal Clashes in Kenya (The Akiwumi report), 1999 (Released in 2002 after a long campaign), available at: http://marskenya.org/pages/stories/Akiwumi_Report/ (accessed February 21, 2008), and Kenya Human Rights Commission (KHRC), Killing the Vote: State Sponsored Violence and Flawed Elections in Kenya (Nairobi: KHRC 1998).
3 International Monetary Fund (IMF), Country Data: Kenya, World Economic Outlook database, October 2007, http://www.imf.org/external/pubs/ft/weo/2007/02/index.htm (accessed February 24, 2008).
4 United Nations Development Program (UNDP), Human Development Index 2007-8 (New York, United Nations Development Program, 2007), http://hdrstats.undp.org/countries/data_sheets/cty_ds_KEN.html (accessed, February 24, 2008).
5 For an overview of the key human rights concerns and needed reforms raised in 2002 when the Kibaki government took power, see Human Rights Watch, Kenyas Unfinished Democracy: A Human Rights Agenda for the New Government, vol. 14, no. 10 (A), December 2002, http://www.hrw.org/reports/2002/kenya2/.
6 Kenya National Commission on Human Rights and Kenya Land Alliance, Unjust Enrichment: The making of Land-Grabbing Millionaires, Living Large Series, Vol.2, No. 1, 2006, p.1.
7 See for example, Kenya Land Alliance, The National Land Policy in Kenya: Addressing Historical Injustices, Issues paper No.2/2004.
8 Kenya is made up of over 40 different ethnic groups: The three largest are the Kikuyu, the Luhya (a colonial term, actually made up of 16 smaller groups), and the Luo. Others include the Kamba, the Kalenjin (another colonial construction grouping together distinct Nilotic ethnic groups that share similar linguistic and cultural traditions: the Kipsigis, Nandi, Pokot (or Suk), Elgeyo, Endorois, Marakwet, Keiyo, Tugen, Sabaot, Sebei, Dorobo, and Terik), the Kisii, Masaai, Turkana, Teso, and the Meru.
9 Kenya National Commission on Human Rights, Unjust Enrichment, p.1.
10 See Human Rights Watch, Kenyas Unfinished Democracy: A Human Rights Agenda for the New Government, Vol. 14, No. 10(A), December 2002, http://www.hrw.org/reports/2002/kenya2/.
11 See Kenya National Commission on Human Rights, Unjust Enrichment.
12 Quoted in, Roger Southall, Ndungu Report Summary, Review of African Political Economy , Vol. 32, No. 103, (March 2005), pp. 142-51.
13 Ibid., p.146.
14 Ibid., p.142.
15 Human Rights Watch telephone interview with David Anderson, February 1, 2008.
16 See Jacqueline Klopp, Can moral ethnicity trump political tribalism?: The struggle for land and nation in Kenya, African Studies 61:2, 2002.
17 Roger Southall, Ndungu Report Summary, p.148.
18 Kenya Ministry of Lands, Draft Land Policy, Nairobi 2006, on file with Human Rights Watch.
19 See African Charter on Human and Peoples Rights, Articles 14 and 21.
20 See, for example, David Anderson, Majimboism: the troubled history of an idea, in Daniel Branch & Nic Cheeseman (eds), Our Turn to Eat! Politics in Kenya since 1950 (Berlin: Lit Verlag, 2008).
22 Colin Leys, Underdevelopment in Kenya, the Political Economy of Neo-Colonialism, (London: Heinemann Ltd.,1975), p. 212.
23 See John Lonsdale, Ethnicity, Tribe and State in Kenya, Open Democracy, January 17, 2008. http://www.opendemocracy.net/article/democracy_power/kenya_ethnicity_tribe_state (accessed, March 4, 2008).
24 See Africa Watch (now Human Rights Watch/Africa) Kenya - Divide and Rule: State Sponsored Ethnic Violence in Kenya (New York: Human Rights Watch, 1993) and Republic of Kenya, Report of the Parliamentary Select Committee to investigate Ethnic Clashes in Western and Other Parts of Kenya, 1992.
25 For instance in 1992, the Minister for Local Government, William ole Ntimama, was quoted as saying in a speech, with Mois Vice-President, George Saitoti, in attendance as guest of honor, that, the Gikuyu [Kikuyu] should prepare to be repatriated to their motherland, leaving the Rift Valley to its native peoples NCCK, Cursed Arrow, quoted in David Anderson, Majimboism: the troubled history of an idea.
26 Those against the watered down draft became known as the orange movement and the government yes camp became known as the bananas after the symbols assigned by the Electoral Commission. The anti-camp coalesced into the Orange Democratic Movement (ODM) that opposed the government in the 2007 elections. For a good summary of the political fallout from the referendum see International Crisis Group, Kenya in Crisis, Africa Report No. 137, February 21, 2008, http://www.crisisgroup.org/home/index.cfm?id=5316&l=1.
27 International Crisis Group, Kenya in Crisis,February 21, 2008.
28 Ibid., p.10.
29 See Kenya Human Rights Commission, Warlord Democracy, December 2002.
30 Africa Watch, Divide and Rule and National Christian Council of Kenya [NCCK], The Cursed Arrow: A Report on Organized Violence Against Democracy in Kenya (Nairobi, 1992); Inter-Parties Symposium, Report on the Clashes by the Task Force (Nairobi, 1992).
31 Africa Watch, Divide and Rule.
32 Africa Watch, Divide and Rule, p.2.
33 For example, according to the parliamentary report on the violence: Evidence received by the Committee . . . Several witnesses also alleged that some of the persons funding the wages of the "warriors" were the Hon. K.N.K. Biwott, EGH, MP; the Hon. Rueben K. Chesire, MP; the Hon. Ezekiel K. Barngetuny, MP; the proprietor of Guest House at Kedowa market, Kipkelion division; and the Hon. Wilson Leitich, MP. See Republic of Kenya, Report of the Parliamentary Select Committee to investigate Ethnic Clashes in Western and Other Parts of Kenya, 1992, p. 75.
34 See for example, The Report of the Judicial Commission Appointed to Inquire into the Tribal Clashes in Kenya (The Akiwumi report); Human Rights Watch, Playing With Fire; and KHRC, Killing the Vote: State Sponsored Violence and Flawed Elections in Kenya.
35 The Report of the Judicial Commission Appointed to Inquire into the Tribal Clashes in Kenya (The Akiwumi report).
36 Jaqueline M. Klopp, Violence and Impunity in Kenya, unpublished monograph, School of International and Public Affairs, Columbia University, 2008, on file with Human Rights Watch.
37 The relevant sections of the law are section 95 and 96 of the Kenyan penal code, See Kenya National Commission for Human Rights, Referendum Report (2006) http://www.knchr.org/index.php?option=com_content&task=view&id=73&Itemid=85#10 (accessed February 5, 2008).
38 Kenya National Commission for Human Rights, Still Behaving Badly, Nairobi, December 2007.
39 See for example, IDP Network of Kenya, Internal Displacement and Analysis Kuresoi Constituency. December 2007 and European Union Election Observation Mission (EUEOM), Kenya 2007, Preliminary Statement, Nairobi January 1, 2008.
40 EUEOM, Preliminary Statement.
42 See www.ogiek.com for a useful archive of newspaper reports of violence in the Kuresoi, Molo, and Mt. Elgon regions over several years, including in the run-up to the 2007 general elections.
43 See IDP Network of Kenya, Internal Displacement and Analysis Kuresoi Constituency and European Union Election Observer, (name withheld) interview with Human Rights Watch, Nairobi, January 8, 2008.
44 IDP Network of Kenya, Internal Displacement Alert, p.5.
46 Human Rights Watch interview with monitors for Kenyan National Commission on Human Rights, Molo, February 18, 2008.
47 EUEOM, Preliminary Statement.