Njoki Ndung'u' submissions to the Senate Committee

WITNESS STATEMENT

THE HOUSE COMMITTEE ON FOREIGN AFFAIRS, SUBCOMMITTEE ON AFRICA AND GLOBAL HEALTH, WEDNESDAY FEBRUARY 6 2008. RAYBURN HOUSE OFFICE BUILDING, ROOM 2200.

MS. NJOKI S NDUNGU

FORMER MEMBER OF PARLIAMENT &

CEO, CENTER FOR LEGAL INFORMATION AND COMMUNICATION IN KENYA (CLICK), a non-profit organization dealing with policy development on constitutional and legal reform & issues of transitional justice.

Introduction:

The current crises in Kenya, prima facie, seems to be an Electoral dispute but a close study reveals a Country that been forced to own up to a deep rooted simmering conflict affecting political, economic, social and cultural aspects of the Nation State itself.

The cause of the current political crises in Kenya is two pronged. First, the poorly managed electoral process dealing with the Presidential Poll result. This acted as a trigger for the Second more entrenched and deep rooted problem that manifested itself in the explosion of violence of a magnitude unknown in post-independent Kenya. The simmering anger that was ignited is a result of a combination of historical injustices from the time of Kenya’s colonial past, and the failure of successive governments of Kenyatta, Moi and Kibaki to address comprehensively the problems of inequality of its citizens.

In particular the challenges presented by landlessness, gender inequality, youth unemployment, the widening gap between the extremely wealthy and extremely poor citizens and the marginalization of some communities. Further political campaigns hyped up expectations of Kenyans in promising to redress these issues overnight whereas a structured and systematic approach with realistic time-lines is required to do so. Resolving the issues around truth and justice, particularly around issues of corruption and past violence also meant that the political class on both sides of the divide would have to give up their own in a no “sacred cows” policy which neither was/is willing to do.[1]

Signs of trouble were evident long before the Election in 2007. Most notable is the recurring violence, murders and evictions that happened in the Rift Valley, just before the General Election in 1992[2] and 2002, and in Likoni, Coast Province in 1997. All these events were politically instigated, with none of the main organizers, although they have been identified by the Akiwumi Commission, prosecuted.[3] There has been no concentrated efforts address peace building among different communities and to return or resettle displaced persons. Both these factors have lent to the impunity that is being witnessed of those who started the violence in Kuresoi in November before the General Election and eventually in Eldoret in December 2007. Hate Speech was and is still rife in political rallies, on vernacular FM Radio stations, SMS (short text messages), Emails and in the blogsphere.

Further, politicking and posturing on narrow agendas, such as the contentious MOU[4], rather than focusing on national interest, led to the rejection by oblivious Kenyans of the new draft Constitution in 2005, who threw away its proposed new structures for power sharing between a President and Prime Minister, the reduction of presidential powers, increased parliamentary vetting of public appointments and institutions to deal with the land question, devolution of resources, and addressing the inequalities of the marginalized. If that Constitution was in place, the tragedy of the last few weeks would have been avoided.

The same politicking and posturing but from the opposite end frustrated the enactment of the minimum reform package which would have ensured inter alia the professionalism and independence of the ECK, and would have reduced the powers of the winner-who-takes-it-all.[5] Finally, the political class dillydallied and did not adopt the Recommendations by the Task Force led by Professor Makau Wa Mutua, to set up a Truth, Justice and Reconciliation Commission which would have resolved many past injustices through a peaceful mediation.

The Election:

The Spark that was to ignite the violent unrest was the presidential poll result. There were ominous signs that the poll would be problematic. Over the last 4 months before the poll media houses were reporting weekly Opinion polls that indicated that it was a tight race between Kibaki and Raila and many coined the phrase ‘too close to call’. In Kenya, this should have sent out a blaring warning that it was too close for comfort. And indeed both Kibaki and Raila got over 4 million votes each(out of over 8 million votes cast) but neither got over 50% of the vote. Conversely this also meant that over 40% of the electorate rejected either candidate. Both sides engaged in electoral malpractices: there was abnormal voter turnout in both Kibaki’s and Raila’s strongholds. In addition to this tense situation, the Electoral Commission of Kenya proceeded to tally the presidential vote in a manner so careless that no reasonable person can be certain, (including all observers present), who actually won the presidential poll.

Many serious questions were raised during the tallying and the announcement of the Presidential results as there were clear discrepancies, illegalities, and disparities with regard to the results released by the ECK. The ECK Chairman himself had during the process of tallying, continually referred to the possibility of results “being cooked” and voiced concerns about the unexplained disappearance of polling officers with the results in certain areas. However, with all these anomalies he still went ahead and declared a result. Kibaki’s PNU are convinced he won and that Raila was never going to accept loss anyway. Raila’s ODM are convinced the poll was stolen with the help of the ECK. What a powder keg and then top it up with the fact that the winner of this election (which is too close to call, with all manner of confusion unprecedented in a Kenyan Election), takes all.

The Violence.

The Reported violence can be categorized in five distinct types:

1. Spontaneous outrage and protest against a result perceived to be massively flawed.

Many demonstrations, some organized and others sporadic riots in protest of the poll result. Many of these took place in mainly cities and towns often leading to running battles with security forces (police). Some protestors vented anger in the destruction of property and lives were lost. Some fighting in this instance took place between known PNU and ODM supporters. Most of these incidents were recorded between the nights of the 28th December 2007 to the 6^th January 2008 and were widespread all over the country with hotspots in Kisumu, Mombasa, Eldoret, and Nairobi’s Slum Areas.

2. Organized and orchestrated violence targeted at certain communities living in their opponents strong hold;

These violent incidents composed of organized groups of youth (read ODM) targeting and killing other Kenyans on the basis of their ethnicity and perceived although not necessarily real supporters of their opponents (read PNU)[6]. The youths traveled around in Lorries, targeting specify properties and attacking persons based their identification cards. There were leaflets printed and circulated warning families to leave. The violence started in Eldoret spreading to other areas of Uasin Gishu District and Spilling over into Nakuru District. Similar attacks are reported in Nyanza, Western and Nairobi. There is sufficient intelligence to suggest that such violence particularly in the Rift Valley was planned, financed and implemented with the knowledge of some political actors. There is further evidence to suggest that some vernacular FM Radio stations had prior to the Election sent coded messages that pointed to the eviction of particular communities from their homes, whatever the outcome of the election – a damning indictment that the election result was used as a pretext for pre-planned evictions. It is clear that many crimes against humanity have taken place.

3. Revenge attacks following (2) above; As revenge attacks began they take on the same features as the first attacks, only this time PNU versus ODM. Evictions, robbery, destruction of property, loss of life and limb. Preceded by leaflets and SMS sent to would be victims. It is also clear that crimes against humanity are taking place during the revenge attacks.
4. Police violence and excessive use of Force As the police struggle to cope with the rising violence and insecurity, they have in some places been overwhelmed and state they have used live ammunition as a last result. However there have been many cases of cruel and excessive force, use of live bullets and rogue officers killing innocent protestors. In particular the forces used in Kisumu during the first 2 weeks after the elections should be subject to an inquiry to establish whether crimes against humanity have taken place.
5. Criminal Gangs and general lawlessness. Criminal Elements have taken over many parts of Kisumu, Eldoret and elsewhere. There is wanton destruction of railways and road, where gangs rob and extort money from members of the public. Concerns have been raised as to whether increasing unemployment has led to the increased crime (There have been massive job layoffs in the formal sector- an estimated 500,000 jobs on the line, and many casuals have been laid off. The unemployment in the Informal Sectorwill increase this figure ten-fold).

In general most of the displaced are women and children who have horrific stories to tell of the mayhem and violence. Almost 1000 lives have been lost and over 500,000 persons are displaced.

Of particular concern are the sexual attacks on women. In initial attacks (Violence category 1 and 2) many women were gang raped in their homes or while fleeing to safety. Many have had no access to Post Exposure Prophylaxis or ARV’s which should be administered within 72 hours without which the risk of infection of HIV is very high.[7] Many rapes and sexual assaults are now happening the IDP camps, where the environment is still high-risk. Further many Women and Girls are being sexually exploited in exchange of food, clothing and medicine. Further degradation of women has been seen by attempts of some gangs to strip women wearing trousers.

What next?

1. The Arbitration team lead by Kofi Annan must stay in place not only during the mediation but to ensure the outcome of any agreements that may be reached. Although the ultimate responsibility lies with local leaders there are too many vested interests amongst them to assure the Kenyan Citizens of complete compliance. The Arbitration team must supervise the entire process to the end. ie. until the next Presidential Elections are held.

2. The political settlement reached by the two Parties must contain specific constitutional and legal proposals that should be in an agreed packaged to be immediately passed into law as soon as Parliament re-opens.

3. The political settlement should also contain clear reforms dealing with Security, Civil Service, and Judicial Reform.

4. The settlement must also contain a mechanism for Transitional Justice and a Commission on Land that should be entrenched in the Constitution.

WHAT THE POLITICAL SETTLEMENT SHOULD CONTAIN:

A. CONSTITUTIONAL AND LEGAL REFORMS.

ELECTORAL REFORMS

The Electoral Commission of Kenya as currently constituted should be dismantled and a new independent body reconstituted, staffed by a professional secretariat and headed by a leaner number of Commissioners. The Members should be nominated from the parliamentary political parties, through a proportional representation formula to be declared by the Speaker.

The Commission should be set up within 30 days of the passing of the Constitutional amendments and embark immediately on key electoral reforms including the redrawing of constituency boundaries (which should be its independent mandate) and redress of past gerrymandering and inequitable distribution of constituency and wards in the Country.

The Commission should then begin preparations for a General Election, of Presidential, Parliamentary and Civic Elections to be held within 24 months from the date of the passing of Constitutional Amendments. (This date should be incorporated in the constitutional amendments package and in the written political settlement).

Parliament should ensure that Electoral Reforms contain a clause to introduce together with the Constituency First-past-the-post, a formula for distribution of seats on a Mixed Member Proportional Representation (MMPR) to ensure representation of minorities and marginalized groups, and a specific reference to gender equity.

EXECUTIVE POWER REFORMS

A power sharing arrangement must be introduced, where the Head of State and the Head of Government share the reins of power. The more powerful Ministries should be held equally by their individual parties. The Provisos of the Executive Chapter in the Bomas Draft Constitution as read with the Naivasha Accord as agreed by the Parliamentary Select Committee in November 2004 (with or without negotiated changes) should be adopted, and passed by Parliament through the Constitutional Amendments Package.

JUDICIAL SERVICE REFORM

The already drafted Judicial Service Bill should be part of the legal package of proposed legislation agreed during the political settlement and immediately passed into law when Parliament reopens. This will give the Judiciary the necessary financial Independence it needs from the Executive. Further the powers of the Judicial Service Commission should be amended so as to give Parliament the necessary vetting powers in the appointment of Judges.

CIVIL SERVICE REFORM.

Permanent Secretaries and Ambassadors should be appointed through a Process of Parliamentary vetting. The Head of State and the Head of Government should apply a power sharing arrangement on Ministries that have security and defence oversight and accordingly decided the appointment of key positions in the Military, Police and Security Intelligence.

The Kenya National Commission on Human Rights and the Kenya Anti-Corruption Commission should be entrenched in the Constitution to ensure strict independence from the Executive and other arms of Government.

B. LAND REFORMS.

This is a critical issue that must be addressed urgently and comprehensively. An independent Constitutional Commission on Land must immediately be set up. On its immediate agenda is the urgent need for land redistribution. In order to do this the Government would have to purchase land from private individuals and multinationals that own large tracts of arable land and create new settlement schemes. To his credit President Kibaki did introduce ranking of the neediest through a poverty index. This must be used inter also to ensure land resources are used to help the poor. However a work ethic must also be engineered so that the beneficiaries of such settlement extract bounty from the land. Justice must also be done. Where in the past sale of land took place between willing buyer, willing seller, there can be no justifiable excuse for the latter to evict the seller. While addressing the past and comprehensive land policy is urgently needed and needs to be placed before parliament for adoption. Finally there is need to rethink the Kenyan culture with regard to land ownership. Dialogue should be encouraged to think about title of property that is not necessarily land. Housing development and High rise apartment buildings away from agricultural must be the way into the future.

C. TRANSITIONAL JUSTICE.

In 2003 a taskforce on the establishment of a Truth, Justice and Reconciliation Commission went around the Country taking views from members of the Public. The public was unanimous that there was urgent need for such a Commission. The terms of reference for the Commission are to investigate political assassinations and killings, Massacres and possible Genocides, Political Violence, Politically instigated ethnic clashes and violations of economic, social and cultural rights. (The full report of the Task Force is herewith attached). The urgency of the need to set up this Commission is self explanatory. It is a critical institution through which Kenya can find itself and learn to forgive.

D. OTHER IMMEDIATE ACTIONS.

1. Immediate Demobilizing of gangs of youth: Recognizing that 89% of the population are Kenyans under age 31, many without gainful employment there is need for immediate implementation of the Marshall Plan for the Youth, This must include a modernized ‘Swyneerton’ Plan where young people can engage not only in gainful employment but in ownership of assets and property.

2. The intergenerational gaps must be closed: There is need to retire from public service any person who was a young Kenyan at the advent of independence. There has been a tendency of the ‘wazee’s to sit on jobs and opportunities which were available to them when they were younger, creating a traffic jam effect: anger and frustration of a waiting in the line younger generation. An attractive package for retirement should be offered to encourage outward movement of the older generation. The same should be done in terms of holding of political office.

3. Masculinity in crises: For the last decade it has become obvious that many men are finding it difficult to move from traditional and cultural to modern roles in a fast growing developing economy such as Kenya. Increasingly women are breadwinners, while young men, particularly in the rural setting spend their time in the market places, mostly discussing politics. The movement from the marketplace to the road blocks for violence should then not come as any surprise. As we focus on the advancement and empowerment of women, an intervention must be made to reinstate the new male model around engaging in gainful employment and equal relationships as a part of society’s expectations of a progressive and modern Kenyan man.

4. Finally, there are immediate challenges of Reconstruction, Resettlement of displaced, Reinvestment, Restoration of our national Image, and validation of traditional and Cultural mechanisms for peace and justice and for national healing.

Finally I would like to state firmly and categorically that Kenya is not another Rwanda. Many peace initiatives and humanitarian interventions are being done by Kenyans for Kenya. To this end international pressure should not in any way involve sanctions that will hurt the poor. The pressure to act should be on the political class in redeeming the image and reputation of Kenya as a stable and peaceful country. As Koffi Annan has said the leaders on both sides must make hard choices; the pressure to act then must affect them directly as individuals to ensure that this is done.

Thank you.

I would like to acknowledgments the use in this analysis of writings, thoughts, and discussions of with Cabral Pinto, Mugambi Kiai, Betty Murungi, Vital Voices – the Women’s Agenda, Women in Kenya Together (WONET), Urgent Action Fund, Jane Kiragu. John Mbaria, et al.

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[1] The Ndungu Report which investigated Land grabbing in the past, adversely named over 100 MP’s sitting on both sides of the House in the last Parliament. Most are still political ‘Big Wigs’ in the current standoff.

[2] Official statistics in 1992 clashes alone report 779 dead and 50,000 displaced.

[3] Among them key ODM politicians who are currently members of the current Parliament.

[4] The Orange team for the No Vote was led by NARC leaders led by Raila who felt shortchanged on the MOU.

[5] Justice Minister, Martha Karua, undermined all efforts by the Committee on the Administration of Justice and Legal Affairs to midwife this minimum package in the House.

[6] This is interesting, particularly when it is a known fact that many Kenyans discarded the 3-piece suit that is vote for President, MP and Councilor only from one party, so it is impossible to know who exactly voted for whom. However, several exit polls indicate that many kikuyus in Nairobi voted for Raila, and luyhas for Kibaki etc

[7] Unconfirmed reports state that there are more than 1,500 women rape victims within the camps in Nairobi area.