Kenyans for justice and democracy statement to the Senate Committee

Statement submitted to the US House of Representatives Subcommittee on Africa

and Global Health hearing on the Political Crisis in Kenya

February 6, 2008; 10:00 a.m.

Background

Kenyans for Justice and Democracy (KJD) comprises Kenyans in the Washington, DC area and other parts of the United States - challenging the official outcome of the presidential elections of December 2007. KJD does not represent the interest of a particular political party, or candidate. Its major goal is to uphold respect for the democratic process and institutions of democracy such as the electoral commission, the Judiciary and the Presidency. This key element of the democratic process was not adhered to in the tallying of the presidential ballots following the December 27, 2007 elections, and in the final declaration and swearing in of Mwai Kibaki as the winner. Subsequent violence and ethnic tensions currently prevailing in Kenya were triggered by this blatant disregard of the peoples’ will expressed through the ballot box.

Evidence of premeditated rigging

· The unilateral appointment of 19 out of 22 Electoral Commissioners by Kibaki immediately before the General Elections to stack the Commission with his acolytes. In the past political parties have nominated candidates for appointment as Electoral Commissioners.

· Kibaki appointed 5 new judges (believed to be partisan) to High Court and Court of Appeal (Court of last resort) only two days to elections. Presidential election petitions can only be heard by the Court of Appeal.

· Young people of voting age in Orange Democratic Movement (ODM) strongholds were denied national identification cards, and were unable to register as voters in time for the General Elections.

· The voters’ registered was interfered with-names of voters from presidential candidate Raila Odinga’s ethnic community were deleted from the register. Hon. Raila Odinga himself could not find his name on the voters’ roll on Election Day.

· Paramilitary officers surrounded the Kenyatta International Conference Center (KICC) and cordoned off surrounding streets. The government was planning to steal elections and was expecting protests from the public.

· Civil servants were actively involved in the campaigns for Kibaki against Civil Service regulations.

· Government attempted to block cell phone text message services to prevent citizens from communicating in the wake of the declaration of Kibaki as the winner of the General Elections.

· Government security personnel were transported to various parts of the country where ODM had massive support to intimidate voters and to interfere with the election process. At least three of these policemen were killed by citizens in Nyanza province a few days before the elections.

A Hopeful People- Betrayed

Kenyans went into the General Elections extremely hopeful and excited about the prospects of a different political dispensation devoid of the corruption, sectarianism, impunity and total disregard of popular sentiment that had characterized the Kibaki regime. The majority of Kenyans-67 percent - believed that the elections would be free and fair.[1] Citizens queued for hours to cast the very important ballot; some for the first time. On these queues every one believed that their vote counted and that, at the end of it all, the outcome would reflect just that: vote counts! But, after hours and days of prevarication and outright animosity against the Orange Democratic Party (ODM) and its officials, the international and local media, international and local election observers, the Chairman of the Electoral Commission ordered all of them out of the announcement hall, and with only the government media present, declared Kibaki president. Earlier, Kenyans had witnessed what had been an assailable ODM presidential candidate Raila Odinga’s lead of close to one million votes, shrink to thirty thousand and finally to a two hundred thousand votes deficit. Kibaki had won.

The rightful winner may not have been declared President: Some interesting facts

· 23 of Kibaki’s Cabinet Ministers were defeated in the elections- including his Vice-President, and Ministers for Foreign Affairs, Local Government, and Trade.

· The ODM presidential candidate won six of the eight provinces, while Kibaki won only 1 province. The other was split between Kibaki and Kalonzo Musyoka.

· ODM party won 99 parliamentary seats (48 percent) against PNU’s 43 (21 percent).

· ODM party won 1,042 (out of 2419) seats representing 43 percent of local government seats against PNU’s 441 or 18 percent.

· The ECK Chairman, Mr. Samuel Kivuitu is on record that he does not know if Mwai Kibaki won the elections, and that he declared Kibaki winner under pressure from ODM-K and PNU leaders.[2] This is a criminal offense under Kenyan law. The Law Society of Kenya has recently struck him off its roll of honor.

· Four Electoral Commissioners declared on national TV that the tallying process of the presidential ballots was full of irregularities, and therefore called to question the integrity of the entire outcome. They called for an independent audit.

· An ECK officer told local and international media that he had witnessed the entire process of ballot manipulation at the ECK tallying center.

· The senior officer in charge of national tallying has sworn an affidavit supporting allegations of rigging and vote manipulation.

· The Attorney General also declared that in view of the dispute surrounding the outcome of the elections, a forensic audit was necessary.

· All the major election observers: European Union, African Union, Common Markets for Eastern and Southern Africa, East African Community, The Commonwealth, the International Republican Institute and the Domestic Monitors group which comprised the Kenyan Civil Society are unanimous that the tallying of presidential ballots was manipulated, and that the process did not meet international standards for free and fair elections. They called for an audit, and recount of the ballots. Most have called for power sharing on an interim basis to prepare for new elections.

· Only one foreign Head of State has publicly congratulated Kibaki after the elections. Ugandan President Yoweri Museveni later said he did it for diplomatic reasons- Uganda relies on Kenya’s Mombasa port as its gateway. The US government which had initially congratulated Kibaki withdrew soon after it emerged that the outcome had been manipulated.

· Kibaki was hurriedly sworn in at a subdued private ceremony without the national anthem and the customary invitation of foreign dignitaries, media and the clergy. In 2002 nearly one million people witnessed the ceremony.

· Having watched this blatant rigging for three days impatient citizens burst into chaos. Subsequent delays and actions of the ECK further fueled the conflict in various parts of the country. Over 1,000 people have died, many from police bullets. Over 350, 000 people have been displaced. The effect to the economy and to ordinary lives is immeasurable.

· As a result of these uncertainties, and evidence in the public domain, the governments of US, UK, Australia, France, Canada and major multilaterals such as EU and World Bank have indicated that it is not going to be “ business as usual” with the Kibaki government and are reviewing their respective Kenya portfolios.

Twilight robbery; Daylight murder[3]: Why there should be no confusion

There is a general misconception that the post election violence triggered by the announcement that Mwai Kibaki had won the elections is ethnic cleansing. The cause of violence was not ethnic animosity. It was anger over stolen dreams; shattered hopes. Nevertheless, it is regrettable that it has inflamed existing, and pre- election historical grievances which now have to be factored into any credible resolution of the conflict. But, attention should not be diverted from the real and immediate cause of this conflict that is, the deliberate and blatant disenfranchisement of the Kenyan voter.

While the violence has taken an ethnic dimension, it is important to note that it is more political than ethnic. Supporters of rival political parties have been targeted in areas that were considered “specific party zones”. It is important to note that in Kenya support for political party or candidate is preponderantly ethnic. Nevertheless, given the intensity of political activism ahead of the General Elections, and the unprecedented and historic turnout that was witnessed during the elections, it was inevitable that a deliberately falsified would lead to violence.

On voting day, voters from various ethnic groups queued on the same line aware that ethnic differences would determine voting patterns- no conflict was reported on the queues or any where else, until after the announcement of the presidential tallies. It is safe to say that the ensuing violence was triggered by the perceived falsification of the presidential election results by an Electoral Commission under pressure, the deliberate muzzling of the press, and the open and blatant connivance of the Chief Justice to hurriedly swear in Mwai Kibaki, even with the final tally in dispute. The ensuing police brutality and the sudden slip of Kenya into a Police State pointed to a well rehearsed plan to subvert the peoples’ will. The implementation of an illegal shoot to kill order, a ban on live media coverage of police brutality, continued threats to journalists from a cross-section of media houses, and the recent killing of two ODM legislators are not mere coincidences.

An interim power sharing arrangement

Power sharing arrangement would be a repudiation of democracy considering that there was a clear winner. However, under the current circumstances an interim and transitional arrangement would be a first best option to get the country out of the impasse. Kenyans were clear about the kind of leadership they voted for. They made this clear by electing Mwai Kibaki on a reform platform in 2002. And, when he reneged on many of the pledges, citizens punished his government in the 2005 referendum by defeating the draft constitution. And, by electing 99 ODM members of parliament against PNU’s 43, and 1,042 local government candidates against PNUs 441 in the 2007 General elections Kenyans sent a powerful message against the impunity and chicanery of the Kibaki regime. It is the people’s verdict; it should be respected. Nevertheless, these are extraordinary time, and extraordinary measures are called for.

Future of Democracy and Rule of Law in Kenya: Implication for United States

The future of democracy and rule of law in Kenya is currently under threat, as is the security of the entire region including the Horn. An unstable Kenya would provide a breeding ground for terrorist elements in the region, and would undermine US- Kenya partnership in the war against terrorism. Kenya is surrounded by mostly fragile states, and has served as a beacon of hope and peace in a region torn by war. Moreover, Kenya is the gateway to Sudan, Uganda, Rwanda, Burundi, Eastern DRC, Somalia, parts of Ethiopia, and North Western Tanzania. These economies have already been adversely affected by the crisis in Kenya. Decades of investment in civic education including support from United States, European Union and several US based foundations now face an uncertain future. Kenya is slowly sinking into abyss, and soon respect for democratic institutions will wane and its place taken by apathy, disdain for the vote and the use of alternative and violent means of acquiring political power. With various suggestions including a military take over being floated around, and citizens’ gangs asking for guns, it is clear that if quick action is not taken, democracy may be doing its last rounds in Kenya. And quick action must be one that restores the citizens’ faith in democratic institutions, and not one that asks them to live peacefully in a dictatorship. They have rejected it in the past, they always will.

How should the United States Government respond?

Kenya is a key strategic partner of the United States in the war on terrorism, military partnership and future engagement with the region. Any spiraling of the country into violence beyond the present situation will not only threaten Kenya, but also American interests in the country and the region as a whole. The United States cannot afford a “wait and see attitude”. It must be proactive, and be fully engaged both in public statements and also in symbolic and substantive measures in its dealing with the Kibaki regime. Ambassador Michael Ranneberger has so far distinguished himself in this regard as a champion for democracy and rule of law. But much action is still needed especially at more senior levels of the United States Government.

What the United States should NOT do?

· Not recognize the Kibaki government.

· Not deal with the Kibaki government in a way that signals a “business as usual” attitude.

· Not mistake the on going conflict as an ethnic conflict, ethnic cleansing or genocide. Kenya has over forty ethnic communities living side by side in peace.

· Not suggest that the solution to the current problem lies in power sharing only, unless on an interim basis pending a fresh round of presidential elections

· Not assume that Kenyans are merely interested in peace without justice and democracy.

· Not see power sharing as an antidote to the current crisis, and instead seek for a political solution to what is obviously a major political conflict.

What the United States should do?

· Call for a speedy resolution of the political conflict that underlies the more visible social conflict.

· Encourage regional leaders to support the on-going peace efforts mediated by Kofi Annan and the team of eminent Africans.

· Support the creation of an interim power sharing arrangement between Kibaki and Raila to prepare the country for another round of presidential elections.

· Support all the forces of democracy in and outside Kenya with interest in the peaceful and just resolution of the present conflict.

· Mobilize the international community to provide help for rebuilding the areas torn by violence.

· Act as a strong voice within the Security Council of the UN to create awareness on the danger posed to the country and to the region by Mwai Kibaki’s intransigence.

· Encourage and support an internationally supervised recount of the ballot in disputed areas.

· Immediately impose selected sanctions on political elites that have perpetrated the electoral fraud and those known to be barriers to a rapid, just resolution of the current conflict and restoration of democracy in Kenya.

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[1] Richard Wike, and Kathleen Holzwart, “Despite Progress and an Upbeat Pre-Election Mood, Ethnic Conflicts Have Long Worried Many Kenyans”, Pew Global Attitudes Project. January 3, 2008. Available at: www.pewresearch.org/pubs/678/kenya

[2] ODM-K presidential candidate, Kalonzo Musyoka, was later appointed Kibaki’s Vice-President.

[3] The Economist’s description of Kenya’s flawed elections. See: Jan 3, 2008 issue.

Credits: Contact: info@kenyansforjusticeanddemocracy.com Website:www.kenyansforjusticeanddemocracy.com