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Background: Kenya’s Long-Term Crisis of Governance

Many commentaries on the post-election violence in Kenya have referred to the violence in contrast to Kenya’s “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 Kenya’s 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 resources—indulgences 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 start—which included improvements in freedom of expression and association coupled with strong economic growth—corruption, 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 Kenya’s 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 Kenya’s 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 Kenyatta’s 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 NaRC’s major campaign promises.¹⁰ To that end, Kibaki launched the Ndung’u 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 Kenya’s population was increasing rapidly, making pressure on land an explosive problem by the turn of the twenty-first century.

The report of the Ndung’u Commission—and that of its predecessor the Njonjo Commission—also 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 Kibaki’s 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 Kenya’s 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 Kenya’s 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 Moi’s 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:

The violence has coincided with calls by high-ranking Kalenjins within the government for the creation of a majimbo system of government in Kenya, a federal system based on ethnicity. The proponents of majimboism have simultaneously called for the expulsion of all other ethnic groups from land occupied before the colonial era by the Kalenjin and other pastoral groups, including the Maasai, Turkana, and Samburu. Inflammatory statements by these figures have been ignored by the government, while similar calls made by opposition politicians have led to immediate action, including arrest and detention.³²

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 report’s 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:

This crisis is both political as well as administrative; in many cases the provincial administration is the core source of the clashes. In Kuresoi the District Officer, Chiefs, and Sub-chiefs, as members of the previous KANU regime, were rewarded with positions after they took an active part in 1992 clashes in the area…The Kibaki government failed to fire them and replace them, even though they have failed in their duty to uphold law and order.⁴⁴

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