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Kenya: National Government of Impunity?

AfricaFocus Bulletin
Aug 4, 2009 (090804)
(Reposted from sources cited below)

Editor's Note

On July 30, only days before this week's visit of U.S. Secretary of State Hilary Clinton to Kenya, the first stop on her 7-country Africa trip, the Kenyan Cabinet decided to reject special prosecution of those responsible for post-election violence in 2007 and 2008, whether under a domestic special tribunal or by the International Criminal Court (ICC), to which the case has been referred. Kenyan human rights advocates have been scathing in their critique of the Cabinet decision, and will be closely parsing the signals from the Clinton visit.

This AfricaFocus Bulletin contains a brief commentary by Muthoni Wanyeki, executive director of the Kenya Human Rights Commission (KHRC), excerpts from an extended interview with Maina Kiai, the former chairperson of the Kenya National Commission on Human Rights (KNCHR), and links to a number of other related commentaries and reports. Of the two human rights groups, KHRC (http://www.khrc.or.ke) is a non-governmental organization, and KNCHR (http://www.knchr.org) is an independent state body established by an act of parliament in 2002.

For an extended analysis of Kenya and U.S-Kenyan relations see the transcript of the July 22 speech by Johnnie Carson, Assistant Secretary of State for Africa, available in full as a supplemental AfricaFocus Bulletin(on the web but not sent out by e-mail) at http://www.africafocus.org/docs09/ken0908s.php
Carson's analysis of the situation in Kenya corresponds closely with that by Kenyan civil society critics. But he also affirms clearly that "Kenya continues to be our most significant strategic partner in East Africa." The implications in practice of the combined critique and strategic partnership remain to be seen.

For previous AfricaFocus Bulletins and other background links on Kenya, visit http://www.africafocus.org/country/kenya.php

For strong documentation of the link between economic and human rights issues in Kenya, see Amnesty International, "The unseen majority: Nairobi's two million slum-dwellers," June 12, 2009 http://www.amnesty.org/en/library/info/AFR32/005/2009/en

Michela Wrong, It's Our Turn to Eat: Profile of a Kenyan WhistleBlower, portrays Kenya through the story of anti-corruption campaigner John Githongo.
http://www.africafocus.org/books/isbn.php?0061346586

[A summary of the 2006 Githongo report is at http://www.africafocus.org/docs06/git0602.php]

For more books on Kenya, visit
http://www.africafocus.org/books/east.php
or http://www.africafocus.org/books/east_uk.php

For other recent commentaries on Kenyan issues, see http://www.pambazuka.org/en/issue/444
and http://www.africafiles.org/kenya.asp

++++++++++++++++++++++end editor's note+++++++++++++++++++++++

Kenya: Cabinet Boldly Upholds Impunity

L. Muthoni Wanyeki

The East African (Nairobi), 3 August 2009

http://allafrica.com/stories/200908031368.html

L. Muthoni Wanyeki is executive director of the Kenya Human Rights Commission

Nairobi - Our Cabinet completely lost the plot with its supposed decision this past Thursday.

I say supposed decision because it was not a decision -- in the sense of proactively choosing from realistic options for achieving justice for the victims and survivors of last year's violence.

It was instead a pandering to the lowest common denominator and an utterly shameful demonstration of its absolute inability to stand up against impunity in the face of the obvious personal political interests of its individual members.

Let us explore the implications of the supposed decision -- to try suspected perpetrators of last year's violence through the regular courts.

First, the decision implies that all suspected perpetrators will be charged for existing crimes in our penal code only.

As the International Crimes Act domesticating the Rome Statute was only passed last year, trying to bring its provisions into effect with respect to last year's violence would be open to charges of retroactivity.

Kenya's international obligations to the International Criminal Court, on the other hand, stood as of the moment that it signed on and ratified the treaty -- regardless of whether domestication had taken place at that time or not.

What this means is that -- as is usual in Kenya -- only the lowest levels of perpetrators are likely to face justice.

Second, the decision implies that only lower-level perpetrators of the initially spontaneous but increasingly organised violence in the North Rift are likely to face the law. Lower-level perpetrators of the other two forms of violence -- that committed by security agencies and the organised counter-attacks in Central, Nairobi and the South Rift -- will probably be able rest easy. As will lower-level perpetrators of the sexual violence that cut across all three forms.

The Attorney General has yet to make public the breakdown of the 150 or so criminal cases he says he has ready on the violence.

But the outcry from families of those unconstitutionally and illegally detained last year in respect of these crimes points to this supposition. As does the trailing off into nothingness of the task force convened by the Kenya Police into the sexual violence.

Third, the decision implies that the Criminal Investigations Department will be responsible for investigations into the violence.

The police, together with the Administration Police, of course stands accused by the Commission of Inquiry into the Post-Election Violence of being responsible for no less than a third of the deaths that occurred -- and a host of other related crimes from theft to rape during that period. It is also documented as having turned a blind eye to the ferrying of armed militia into the South Rift for the organised counter-attacks.

To expect the CID to investigate these accusations is to expose it to a massive conflict of interest -- and the CID has no great record of standing for the public interest where conflict of interest exists--or of concern with accountability of the police force as a whole. And this is, of course, apart from the questionable quality of its investigations.

Even a cursory examination of the three criminal cases brought forward with respect to last year's violence so far demonstrates these concerns.

The Kiambaa case was thrown out.

The case against the policeman caught on camera in Kisumu has yet to be concluded.

Only the case of those charged with killing two policemen in Roret market has been concluded with convictions -- and that only this past week.

Fourth, the decision implies that the Director of Public Prosecutions under the AG's office will be responsible for prosecutions -- leaving all cases open to the vagaries and whims for which the AG's office has become notorious.

Today you see him, tomorrow you don't, depending on whose personal or political interests have been touched upon.

Fifth, the decision implies that our own judiciary will hear the cases brought forward.

Its independence is in question, particularly with respect to cases touching on the personal and political interests mentioned above. Enough said.

Sixth, and importantly, the decision says nothing about the safety of witnesses in such an arrangement.

It is already clear that the Witness Protection Act, placing responsibility for this under the AG's office, simply cannot apply to witnesses to last year's violence -- at least if we value their lives.

In short, the supposed decision implies nothing less than a repudiation of the mediation agreement. A repudiation of the CIPEV [Commission of Inquiry into Post-Election Violence] report [also known as the Waki report]. A repudiation of the very notion of rule of law.

We must not accept this appalling stand in favour of impunity. We must insist that the ICC's prosecutor reject it when he is reported to in September. We must insist that the ICC commence its own investigations -- with or without referral by the government of Kenya, on the initiative of the prosecutor himself.

The victims and survivors of the violence deserve more than this.

The supposed decision acts as though they do not even exist -- but they do. They do. And the ICC must stand for them since our own Cabinet clearly does not.


For related commentaries on the Cabinet decision see also

Makau Mutua, Chair of the Kenya Human Rights Commission, "Nothing Could Be More Insulting to Citizens," in The Nation (Nairobi), 1 August 2009
http://allafrica.com/stories/200908030631.html

CISA [Catholic Information Service for Africa], "Shocked Churches Call on Government to Resign," July 31, 2009
http://www.cisanewsafrica.org/story.asp?ID=4053

NCCK [National Council of Churches of Kenya] called Cabinet ministers "a terror rather than an asset to this nation". They are driven by greed. "By supporting the decision not to dispense justice with regard to the post-election violence, you have taken upon your hands the blood of the 1,300 Kenyans who died in early 2008 and the suffering of Internally Displaced Persons which continues up to date".


Kenya: Impunity and the politicisation of ethnicity

Maina Kiai

Pambazuka News, 2009-07-30, Issue 444

[Excerpts: full text available at
http://pambazuka.org/en/category/features/58070]

* Maina Kiai is the former chairperson of the Kenya National Commission for Human Rights.

* Firoze Manji is editor in chief of Pambazuka News.

In the wake of a UN report on extrajudicial killings, the prospect of intervention by the International Criminal Court on post-election violence and the formation of a Truth Justice and Reconciliation Commission, Maina Kiai, former chairperson of the Kenya National Commission for Human Rights, speaks to Pambazuka News's Firoze Manji about what the future holds for Kenya. As long as politicians operate under the notion that 'the big man makes the country' rather than institutions, cautions Kiai, it will remain impossible for the country to end impunity without outside assistance.

PAMBAZUKA NEWS: There have been three events related to Kenya which have drawn some public attention. I wonder if you could tell us what you think is the significance of the report by Philip Alston, the United Nations special rapporteur on extrajudicial, summary or arbitrary executions, on extra-judicial killings in Kenya; the submission of the so-called 'envelope' by Kofi Annan, former UN Secretary-General, to the International Criminal Court; and the more recent announcement of the formation of the Truth, Justice and Reconciliation Commission. What has brought all these things about?

MAINA KIAI: I think that the main thing that's brought them about is a systematic and concerted push by Kenyans, especially led by civil society, to end the culture of impunity. The Alston report on extrajudicial executions is something that has been outstanding for really the last fifteen, twenty years in Kenya regarding how the police use force. This was the first international confirmation of what Kenyans know and what Kenyans have been saying for years. So it was important because for a long time the government has been 'pooh-poohing' the reports of national civil society, of national institutions, including the Kenya National Commission on Human Rights, saying that it is not true that there have been such extrajudicial killings. But then when it was vindicated, not only at an international level but also by the UN Special Rapporteur, it confirms to everybody what everybody's been saying. So it puts the government in a spot, in the sense, that not only do Kenyans know that the police have been killing Kenyans extrajudicially without the proper process, but now also the whole world knows that this is a government that simply doesn't care for life. Although the problem isn't new, it's useful that it has come out now and after concerted efforts and a push by Kenyans to have this issue dealt with. The police, even though they are combating crime, whatever they're doing, have to obey the law: There's a process to it and once the police begin breaking the law like any other criminal, then they fall into the same category of ordinary criminals that break the law.

PAMBAZUKA NEWS: While you were chair of the Kenya National Commission for Human Rights, I recall you published a report - just before the 2007 elections - claiming that there had been more than 500 extrajudicial killings by the police. How far do you think that report influenced the UN special rapporteur's decision to carry out an investigation?

MAINA KIAI: I don't know, but I only know that he certainly saw it, and I know that he read it and it was a very concrete report. It was based on facts. We tied - or linked - the dots together, if you wish. There was real evidence about it but, most of all, one of the clear things was the admission on national television, in September, by the then minister of foreign affairs, Raphael Tuju, basically saying that the government has killed off 400 or 500 youth and that nobody's saying anything. So there was an admission from them. It's only that it looked like the admission was done by mistake, or by accident, by the minister for foreign affairs. But we got it. And so, we had evidence tracing bodies that had been put there. We had evidence tracing people who came to tell us that they had seen their relatives being abducted and the next time they saw them, they find them dead, and had been put that way by the police. There was a systematic pattern in the manner in which they were being killed and there was a clutch of silence, there was a whole sense of fear. And because the government was using the rationale that they were dealing with crime, with this illegal, militia force called Mungiki, there was a sense, first of all, of fear but there was also a sense amongst Kenyans that, 'Hey! You can do whatever you want to get rid of crime and get rid of these guys.' But there was no way of knowing whether the 500 kids, the 500 young people, were all Mungiki. Nobody knows for a fact. I think that in the investigations that we did, I suspect that easily half of them were simply poor, young Kikuyu who were being extorted. So we were basically saying, 'Well, we are not supporting the Mungiki, we are not saying they are doing the right thing but surely the rule of law must be obeyed and a process to determine whether these guys are Mungiki or not must be fair. But we can't have the police acting as the investigator, as the arrester, as the judge, the jury and the executioner all in one because that, then, is when you have a police state.' ...

But let me say that this is not a new thing. In the nineties, this was the constant approach of the state. When they found people who they called 'criminals', they executed them. At that time I was working at the Kenya Human Rights Commission, the NGO, and again, we documented case after case after case where the police were just shooting people. The evidence that we were getting, which we could not verify then, was that oftentimes the police were killing criminals, yes, but these were criminals who had links with the police. What they were doing, essentially, was killing the evidence that linked the police as criminals with these guys. So when a criminal became too bigheaded, he wasn't giving the right share or not enough of the share of the loot, they just killed him.

...

Clearly, the internationalisation of the issues also helps because we've had governments and we have a government in Kenya that simply don't seem to regard the views of the people. They care much more about their 'international standing' and where they are internationally. So, they seem to respond much, much more, much faster and much more categorically when there is international attention on issues, and that seems to be the primary motivator for them to stop doing things.

This was the same thing that happened, if you remember, in the nineties on torture. You know, there were all the cases of MwaKenya torture in Nyayo House but until the special rapporteur on torture, Sir Nigel Rodley came to Kenya and revealed it did the government actually reduce dramatically the torture it had been doing. So it is one of those strange things where a government elected by the people does not respond to the people themselves but responds to what they call the 'international community'.

PAMBAZUKA NEWS: You've used the term 'impunity'. Has anyone been held to account as a result of the UN special rapporteur's report?

MAINA KIAI: Not yet, but I think this is a process which we are going through in Kenya and there are always attempts to cover up. But what we keep saying is that if nothing happens then the culture of impunity will not only survive, but it will become even more entrenched and these things will keep happening.

...

But this is one of the arguments that we kept making and which we should keep making; that in Kenya, if you are poor, if you have no connections, if you have no contacts, then in killing you, well, your life is almost worthless. Anyone can kill you and say you are Mungiki. Anyone can kill you and say you are SLDF (Sabaot Land Defence Force), and that's the end. But if you have a profile, an education, you're the son of somebody important? Then there will be accountability. There is a duality of law that we must stop. The law must be the same for everyone.

PAMBAZUKA NEWS: The press has highlighted another event: The handing in of the so-called envelope by Kofi Anaan, the former UN secretary general, to the International Criminal Court. What is this envelope?

MAINA KIAI: Well, the envelope is a list of names, but it's not just an envelope. There actually are a number of boxes of evidence that accompany the envelope, so what was handed over to the ICC wasn't just an envelope with a list of names but also the boxes with the evidence.

PAMBAZUKA NEWS: A list of names of whom?

MAINA KIAI: They are the names of those who bear the greatest responsibility, as investigated by the Waki Commission. ... And the list of names is where there is evidence linking them and that is evidence in the boxes to show the link. Now, of course the ICC could decide that they won't do anything with that list and with that evidence. They will go through the evidence and see if it makes sense or not, but it seems to me, and from what I know that there was some real, good evidence, taken by camera by the Waki Commission and in solid evidence.

...

PAMBAZUKA NEWS: Given that we do have judicial competence in Kenya, what is the rationale for the submission of this envelope and evidence to the ICC rather than to a body in Kenya to take this evidence?

MAINA KIAI: It's that there is individual competence and individual capacity but we don't have institutional capacity and institutional competence. That is what we have to distinguish between and that given the way the government has done things and given the fact that even after the election there was no one who believed that the courts would be able to find justice on the elections and the manipulation there. And the fact that historically nobody has confidence in the judiciary.

We know that the police are completely incapable of carrying out proper investigations. This is at an institutional level. Maybe there are one or two, or five or six, policeman who can, but you can rest assured that on issues that have such linkage to people in power, the most competent people will not get a chance, will not be appointed to handle these matters because they are too 'independent'.

...

Now, if we are going to do the investigations and prosecutions in Kenya, without doing it internationally, we would have to, first of all, reform these institutions and then do it. This type of reform would take three or four years because there's going to be resistance, because the people who enjoy and benefit from our messed up institutes, as they are, they benefit from it and would like to keep them as they are.

...

PAMBAZUKA NEWS: There are many people who feel that the International Criminal Court is in danger of losing its credibility because it has focused primarily on bringing Africans to trial. How far do you think the submission of the envelope to the ICC on the Kenya case is likely to be affected by these perceptions?

MAINA KIAI: I think that you will find that the damage to the leadership of this country and the credibility of the ICC is being done by African leaders who are the ones who want to continue impunity, not for the African people. In the Kenyan case: Poll after poll has been consistent in showing that Kenyans as a people have confidence in and want the ICC to intervene. Now, if you look at four cases before the ICC, three of them have been submitted by the African governments themselves: Uganda, Central African Republic and DR Congo. They submitted, they referenced, the cases to the ICC themselves. In Sudan, the Darfur, it is the Security Council who referenced the case to the ICC. It is a bit unfortunate for people to then, in fact, say that it's focusing on Africa. ...

Now remember that it is African governments themselves who have submitted themselves to the ICC. Nobody put a gun to them and said, 'Quiet and sign and ratify.' They did it voluntarily so it is now when they think, 'My goodness, this thing can work,' that the leadership in Africa is saying, 'Hey, we don't want this, it's going too high, it's going to the level of presidents and in Africa the presidents are gods. They rule until they die and at the minute, they don't think they'll die because they're gods. So, when it's coming to the end, they start thinking, 'Hmm, this thing might touch us, though in the beginning we thought this might be useful.' Then they begin retracting, saying, 'Let's move back.'

...

Hopefully the lesson that we will be learning is that rather than submit ourselves to the international community we should, like other countries, build domestic structures to deal with these things ourselves in our countries. That is absolutely the sure-fire way but we have got to build them. We have to build them so that if a policeman shoots someone there is immediately, at least an internal investigation within the police or somewhere to ask the question, 'Was that a legitimate shooting or not?'

When there is violence and conflict and something is happening, we should be able to go back and say, 'Let's hold these people accountable for the gang rapes and the mass rapes, the tortures and the killing.' If we do it ourselves then we won't need to go crying and saying that the international community and the ICC is hurting us. This is a challenge to us and we should jump to the challenge. Instead of saying, 'We should get rid of the ICC because it is hurting us,' we should say, 'We should build domestic structures that can end impunity.'

...

PAMBAZUKA NEWS: One of the striking things about Kenya is that precisely in that period, 2003, 2004, 2005, we saw the formation of consciousness on a national level. People were proud to start calling themselves Kenyans; people were wearing the Kenyan flag, people had badges and hats and caps and t-shirts with the Kenyan flag on it. There was a pride in that. What I find quite striking now is that this has now almost totally disappeared, except amongst a small group of activists. Instead people define themselves by their ethnicity or tribe. How do you account for the politicisation of ethnic identity in Kenya today?

MAINA KIAI: I think it is consistent with how our leadership since, and even before, independence has played the political game: That to maintain power they have to focus exclusively on ethnic identity as the only thing that counts, and therefore you get support and you get blind support to do whatever you want. I think that the shoe fell for the NARC government of 2003 when it, itself, got involved in corruption, and it was found out in grand corruption with the Anglo Leasing case.

When they were then discovered, they thought the best way to marshal support ... Remember they had been elected on a zero-tolerance agenda on corruption. When it was found out that they actually were as involved in grand corruption as Moi had been, they thought the best way to maintain political support was to ethnicise everything. They began ethnicising their political support, work, appointments and other things. As that then happened, it became clear that these guys, because of their declining legitimacy and because they have failed in terms of what they said they would do for their country, they went back, as fast as they could, to the tried and tested methodology of Kenyatta and Moi of using ethnicity.

...

The election of 2002 was a turning point in many ways because it made Kenyans feel free; that we could actually remove a person like Moi after all that time. That was an empowering spirit that has continued and a sense that, hey, we don't like it but now we can speak it. There was also a sense in 2003, 2004 of openness and that you could now speak without fear, there was a sense of freedom in terms of freedom of expression and association. That then engendered a sense of resistance. But unfortunately the resistance has followed the pattern that has been set by the politicians which is that of ethnicity. I think that's where the hassle is.

... This is part of a vicious cycle that's ongoing in Kenya that has to be broken at some point. We had a great chance to break it in 2003. I think the Kibaki government lost the plot and lost that chance. In fact, that whole sense of disappointment, the hope that was in Kenya in 2003 was absolutely palpable. We thought, 'We can now do it, we can move forward.' That destruction of hope and the throwing of it into the trash bin may well be one of Kibaki's most significant negative legacies he's going to leave to the country.

PAMBAZUKA NEWS: Do you see ethnicity as being a major factor in the coming years?

MAINA KIAI: I think it will be. ...

The poor keep getting poorer, they are the largest group, yet we don't seem to be able to organise people around the concept of getting out of poverty. We don't seem to be able to organise people even in other areas. So it is work that we have to do and the last three or four years have taken us backwards. We have to confront it. Probably the best way to confront it, right now is, within the ethnic groups - to begin a process of challenging the orthodoxy within each ethnic group because what you're now getting to is the sense of a few men who seem to control an entire ethic group and what they say moves the entire ethnic group. Everyone just follows without thinking. Their personal interests are presented as ethnic interests, as community interests, and people follow. So we've got to break that by challenging internally these ethnic chiefs who, in my opinion, are very close to becoming warlords and once we can do that we'll begin the process of nationally organising again.

...

PAMBAZUKA NEWS: So to conclude, are you optimistic about the coming years in Kenya?

MAINA KIAI: I think the jury is out to be honest. Generally I'm very optimistic about the processes in Africa because when you go around the country and you work with ordinary people and meet them, you do get a sense of hope. But this is the first time, at least in terms of Kenya, that I'm not as hopeful as I once was before, because I'm travelling around a lot, I'm talking to many people, and what I am hearing are things that make me worry for the future.

But there are things that we could be doing. The first of course is the impunity question and dealing with that impunity while the second bit of it is the political class understanding, if they are able to, that the country and the people have really moved on from where they were before. If we continue to trust our leaders without understanding that they keep focusing exclusively on themselves and their own interests, then this will only lead to chaos and conflict. And the third thing is that if civil society can get the space without the fear of execution or arrest, then there is a hope that civil society can get out and begin trying to mobilise people across ethnic lines on the basis of shared interests.

...

So the bulk of our challenge really lies with our existing political leaders to understand that they can't manage the situation anymore. They weren't able to manage it in 2007 and as time goes on, that era of managing has now ended. They want to keep us where we were and to keep doing things as they have been doing. They need to understand that we have changed and they need to change with us. Otherwise they will lead us down the path of chaos and conflict. ...

So the job ahead is hard and I think we shouldn't be pretending anymore that it will be easy or done overnight. I think it will be a hard job and that there is a lot to be done and I think many people are waiting for somebody to mobilise people around the reform movement, the democracy movement and say, 'Guys let's pull it together, let's work together. Let's get an agenda, we can all work together on. This isn't about you, it's about the country, it's about the survival of the country at this point.'


AfricaFocus Bulletin is an independent electronic publication providing reposted commentary and analysis on African issues, with a particular focus on U.S. and international policies. AfricaFocus Bulletin is edited by William Minter.

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