ORGANIZED POLITICAL VIOLENCE AND THE VIOLATION OF HUMAN RIGHTS: THE CASE OF THE KENYAN CONFLICT 2007-2008

Institute of Peace Studies and International Relations
Hekima College



“Organized Political Violence, Impunity and the Violation of Human Rights: The Case of Kenya’s Post-Election Violence of 2007-2008”





By

Moses Owade Were









In a situation replete with the mass violations of human rights where a nation is killing its own people, does the international community have a responsibility to intervene? In 1994, the international community largely reacted with cynicism and indifference to the then unfolding Rwandan genocide in which close to one million Rwandans were killed. Underlying the indifference and cynicism was the starkest possible interpretation of the Westphalian principles that posited that what happens within state borders is nobody else’s business. In the light of the evolution of the international human rights law beginning with the United Nations Charter, the Universal Declaration of Human rights, the various covenants dealing with social, political and economic rights, the Genocide convention and the Rome statutes that set up the International Criminal Court (I.C.C.) have expunged this limited interpretation of sovereignty from the discourse of international human rights law. The sovereign rights of governments to what they will within their border have today been displaced by the rights of all human beings to be free of repression, ill treatment and genocide. Sovereign rights have largely ceded ground to human rights.

Today a new principle that acknowledges the need to defend people from atrocities has attracted international acceptance from the international community since mid 2000’s. The principle of “Responsibility to Protect” was unanimously endorsed, at the summit level, by the United Nations General Assembly in 2005. At the heart of this principle is the consensus that a state should retain the primary responsibility of protecting its own people from mass atrocities. In circumstances where a state has manifestly failed to do this either as a result of limited resources or ill will, then it becomes the collective responsibility of the international community to take decisive and appropriate action. In these kinds of situations, sovereignty would not provide immunity and the international community will then have a right and obligation to intervene even when the sovereignty of the state in question is violated.

The international community’s response to the post-election explosion ethnic violence in Kenya is an excellent example of the practical application of the principle of the ‘responsibility to protect’. At the height of the post-election violence, well over 1300 people had been brutally killed as nearly half a million people were driven from their homes and forced to live in camps for the internally displaced persons scattered across the country. There were long trails of old men, women and children fleeing from their attackers having left behind farms and homes that had been looted and burned to the ground. The response of the international community to the unfolding humanitarian crises in Kenya at the beginning of 2008, was in stark contrast with the cynicism and indifference with which the same international community greeted the genocide in Rwanda. The swift intervention by the African Union, backed by the United Nations, the European Union and the United States of America largely contributed to negotiated settlement that was eventually agreed upon by the two groups that were in conflict.

In this paper, I am going to examine the role of organized political violence and impunity in Kenya’s post-election violence of 2007-2008 in the context of the evolving field of international human rights law. I will first briefly outline the evolution of international human rights law before turning my attention to history of organized political violence in Kenya and how it has been used as the means of ascending to power. I will then consider the role of organized political violence and impunity as contributing factors of the post-election violence and the consequent violations of human rights. Finally, I will conclude by examining the possible roles that the international human rights law will continue to play as Kenya seeks to exorcise the ghosts of impunity by bringing to justice all those who are suspected to have been the forces behind the heinous violations of human rights.

Human rights have become ideologically hegemonic in the international community with only a small minority of nations still disputing the relevance of the Universal Declarations of Human rights to their specific situations. The idea of human rights has proved to be attractive to the vast majority of nations and cultures across the world today as a means of dealing with public authority and the larger society. Prior to the 17th Century, no culture, civilization or society, including the traditional western one, had evolved a generally accepted vision of equal and inalienable individual human rights. The human rights discourse did not emerge from any deep western cultural roots but rather arose as a response to the social, economic, and political transformations occasioned by the process of modernization. Therefore, as modernization took root, a growing range of dispossessed persons began advancing ‘claims for relief from injustice and disabilities’ and in the process claims of equal and inalienable rights became progressively central.

Beginning roughly with the 1648 treaty of Westphalia through to 1945, human rights were generally assumed to be within the competence of the nation state. This was however radically changed in both legal theory and diplomatic practice with the creation of the United Nations in 1945. The signatories of the UN Charter were required to “reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of both men and women and of nations large and small”. Article 55 of the Charter asserts that the UN will “promote universal respect for, and observance of, human rights and fundamental freedoms for all without distinctions as to race, sex, language, or religion.”

The significance of the UN Charter 1945 is that it was a broad based stepping stone that informed a series of decisions which cumulatively resulted in the internationalization of human rights. Thus after the Charter was ratified, the Universal Declaration of Human Rights was passed followed by the creation of United Nations Human Rights Commission amongst other regional human rights bodies. Between 1967 and 1970, the covenants on political and civil rights on the one hand and the economic, social and cultural rights, on the other came into force. By 1970, therefore, human rights had been internationalized on the world stage. States had by this time appended their signatures to all sorts of treaties, voted for all kinds of resolutions and declarations and engaged in various modes of diplomatic practice which resulted in the internationalization of the subject of human rights. The effect of all these developments was that sovereign states have progressively found it extremely difficult to argue that human rights are purely and exclusively within the realm of its domestic affairs. Before delving into the human rights violations that were visited on the people of Kenya in the course of the post-election violence, I will first attempt to situate this violence in the context of the country’s recent history.

A lot of ink was spilled at the beginning of the 2008 by correspondents of the international media as they sought to make sense of the violence that had engulfed Kenya. They found it difficult to reconcile the popular perception of Kenya as an ‘island of peace and stability’ with the horrific scenes of violence that were playing out before their eyes. However, a brief foray into Kenya’s recent history would have been enough to disabuse the foreign journalists of this fallacious assumption and given them some insights on Kenya’s ‘love-hate’ relationship with organized political violence.

The 1990’s marked the period in which organized violence was institutionalized as a defining and necessary factor element of parliamentary and presidential elections. The path to the multiparty elections in 1992, 1997, 2002 and 2007 was littered with organized political violence. The first time that ethnic violence was experienced was on the 29th October 1991. By November 1993, over 1500 people had been killed and another 300,000 had been forced out of their farms, homes, and places of residence. This orgy of ‘ethnic cleansing’ that swept through parts of rural Kenya from late 1991 was largely to blame for the flawed elections in 1992. As early as 1991, human rights organizations had already identified organized political violence as the most potent threat to democracy and the rule of law. This organized political violence was variously described in terms such as ‘ethnic clashes’, ‘land clashes’, ‘border disputes’, and ‘cattle rustling’.

The emergence of organized political violence unfolded against the background of mounting pressure on the regime of president Moi to legalize pluralism. The regime caved in to pressure and Kenya reverted to being a multiparty democracy in 1991. The Moi government nonetheless remained recalcitrant and continued to subvert the process of democratization. Violence escalated and engulfed the multi-ethnic provinces of Rift Valley, Nyanza and Western.

In its careful and exhaustive study of the violence, Human Rights Watch submitted that the government had presided over the organized violence for political gains. The vigilante groups or militias were evidently sponsored by the state to act as response to the challenge posed by the proponents of multi-party democracy and in this way perpetuate the hegemonic elite of the single party era in power. The government security forces were at times known to have provided the training, protection and even worked in concert with the militia groups during the attacks. These attacks exclusively targeted ethnic groups associated with the proponents of the pro-democracy movement.

The violence enabled Moi to rig the 1992 elections in advance by the violent displacement and the consequent disenfranchisement of communities associated with the opposition. Land, illegally acquired from the displaced communities, was used to buy support from the various ethnic constituencies. The use of militia groups or ethnic warriors made it easier for the Moi government to violate the human rights of his critics and at the same time shield itself from international censure for the gross violations of human rights. This violence that rocked Kenya in 1991 produced the first wave of Kenya’s disinherited internally displaced persons (IDP’s). This violence continued relentlessly in the post-election period till 1995. Since President Moi won the elections in 1992, the general assumption was that his government would launch a massive resettlement program of the displaced persons back to their homes. Instead, the Moi regime encouraged vigilante groups, regular police and members of the provincial administration to violently disperse the internally displaced persons from the camps in which they had sought refuge. Thus in 1993, over 2000 IDP's in the Endebess camp in Trans Nzoia were forcibly dispersed.

The most atrocious and heinous dispersal was the dispersal of the Maela Camp in Naivasha in 1994. This camp was home to over 10,000 IDP’s who had been displaced from Enoosupukia in Narok in October 1994. The government defined 200 of this number as genuine victims of displacement and resettled them not in their former farms but in government owned lands. The rest of the displaced persons were forcibly loaded into government trucks and literally dumped in Central province, the homeland to the Kikuyu. These IDP’s were therefore victims of double displacement, first by the marauding gangs of warriors and later by the agents of the state.

The organized violence that characterized the pre and post election period in 1997 was a continuation of the wave of violence that had rocked parts of rural Kenya between 1991 and 1993. Prior to 1997, the organized violence was confined to the rural areas along the borders of Nyanza, Rift Valley and Western provinces. With only one month to go before the 1997 elections, Kenya was boiling over with all manner and forms of communal violence. This renewed wave of violence climaxed in August 13, 1997 as ethnic clashes erupted in various places along the Coast province leaving over 100 people dead and another 100,000 people displaced from their homes. The militia groups around the Coast province were unleashed to displace and disenfranchise people perceived to be sympathetic to the opposition parties and to deter against the possibility of an alliance between the upcountry opposition groups and the coastal communities. The warriors and militias who carried out these attacks in the various provinces were known to include junior military and police officers and ex-servicemen and it is alleged that some of them were trained in camps in Marigat Forest and in the Kerio Valley. According to the National Christian Council of Kenya (NCCK) report on the violence, upwards of 60,000 warriors had been trained at the height of the violence in 1997. The warriors were said to have been paid Shs 2000 ($ 25) each for killing a person and Shs 10,000 ($125) for each permanent house burnt. Systematic attacks were executed by ‘warriors’ who killed people from the targeted groups, burned down houses, crops, stole livestock, raped their women, and forced hundreds of thousands to flee their homes for safety. These attacks generated one of the worst humanitarian crises in independent Kenya as over 200, 000 were displaced in pre-election violence.

Since 1991, therefore, organized violence has largely been adopted as a means of securing political power and winning elections in Kenya. Elections related violence was thus witnessed in the 1992, 1997, 2002 and 2007. In spite of the death and destruction that characterized these cases of organized violence and the reports from NGOs such as Human Rights Watch, Kenya Human Rights Commission, and two government instituted inquiries (the Kiliku parliamentary Committee and the Akiwumi Commission), not a single person was ever punished for these wanton killings and destruction even though the names of the perpetrators to be investigated and those ‘adversely mentioned’ were contained in the reports of the government instituted commissions of enquiry. These reports consistently alleged that high ranking political figures, civil servants and persons close to the heart of the government organized and used violent groups to kill other Kenyans, destroy their property, and intimidate those perceived to be sympathetic to the opposition. This was done for the sole aim of securing political power. The strategy was to stop, by any means necessary, the opposition supporters from voting. The means employed involved the hiring of gangs of warriors in Rift Valley and elsewhere to kill the opposition supporters and to displace them from their homes and farms. The displacements of hundreds of thousands of people resulted in the KAMATUSA securing a majority of the parliamentary seats in the Rift Valley and also ensured that they could easily gunner at least 25% of the total votes cast in at least five provinces across the country. The culture of impunity has thus as a result been entrenched over the years as individuals who killed and maimed others in order to acquire political power were never and have never been brought to justice. This impunity has transformed Kenya’s political landscape in as far the conduct of general elections is concerned. Militia groups and gangs for hire such as the Mungiki, Taliban, Chinkororo, Kamjesh, Baghdad Boys, and others flourished within a political culture of impunity that not only used but also tolerated organized political violence. Gangs and militias continued to multiply in many parts of the country thereby increasing the presence of institutionalized extra legal violence that was repeatedly unleashed both before and after the elections. This is the same pattern that obtained in the run-up to the 2007 elections. As recently as the 2007, Mungiki and other political gangs continued to sell their services of violence on the basis of a willing buyer and willing seller. The foregoing provides the context and background against which Kenya’s post-election violence of 2007-2008 needs to be evaluated. The country’s recent history has been characterized by a legacy of organized political violence, impunity and the wanton violations the most basic rights of the Kenyan people. The deliberate and well thought out use of violence by politicians in order to obtain power since the early 1990’s and the conscious decision not to punish the perpetrators of human rights violations has led to the emergence of the culture of impunity and the escalation of organized violence.

We shall now briefly turn our attention to the violations of human rights that occurred in the period between the 27th of December 2007 and 28th February 2008. The bungling of the December 2007 presidential elections by the Electoral Commission of Kenya (ECK) was the trigger for Kenya’s post-election violence. The most damaging acts of electoral fraud was committed in the final stages of the tallying of the presidential poll when the (ECK) was evidently involved in a desperate last minute attempt to tilt the results in favor of the incumbent, president Mwai Kibaki. The discredited election was an abuse of the democratic rights of the Kenyan people as the principle of conducting a free and fair election is expressly provided for in the Kenyan constitution and in various other acts of parliament. Further, Kenya is signatory to and has ratified international and regional treaties relating to human rights. Some of these treaties include the International Covenant on Civil and Political Rights (ICCPR) and the African Charter on Human and Peoples Rights and these outline standards on the conduct of democratic elections. The widely discredited elections thus served as the trigger that set the nation ablaze with ethnic violence.

The inter-ethnic violence that engulfed the country in the aftermath of the December 2007 polls began in the Rift Valley. The epicenter of the first wave of violence in Rift Valley concentrated in and around Eldoret Town, some 125km from the Ugandan border. In many of the places in Rift Valley, the violence erupted the moment that the incumbent Mwai Kibaki was declared the winner of the presidential poll. Within a space of one week, many areas in Rift Valley had been largely emptied of the Kikuyu. Hundreds lay dead, many rotting in the fields of the scattered hillside farms while thousands of homes had been burned to the ground. A Kalenjin man recounted to Human Rights Watch his role in a mob that killed several Kikuyu men in Eldoret town on the evening following the announcement of the elections results. The man stated that If we met a Kikuyu, we just beat him. I saw five people die that day. They attacked using all kinds of weapon such as arrows, machete and any crude weapon. It was mob justice. The first killing they approached the Kikuyu man politely and asked him to produce his identity card. The one who was given the identity card announced the name very loudly-it was a Kikuyu name. And the mob just attacked him. Those who produced identity cards with Kalenjin, or Luo names were left alone. One of the most publicized and horrifying scenes of post-election bloodshed took place in Kiambaa, settlement scheme south of Eldoret town in the North Rift. On the 1st January 2008, a group of Kalenjin attackers set ablaze a church where terrified Kikuyu resident had sought refuge. The attackers first soaked mattresses with petrol and then stacked them against the church building before setting them ablaze. At least 30 people were burned alive inside the church. As the displaced people fled from Eldoret, the epicenter of the violence in Rift Valley, they brought brutal stories of murders, rapes, looting and burnings to the residents of Naivasha, Nakuru and towns across central province. The Kikuyu elite reacted by organizing to contribute money to finance ‘self defense forces’. Between the 23rd and 30th of January, Kikuyu militias in Nakuru, Naivasha, and Central province led pogroms targeting Luo, Luhya, Kelenjin and other groups allied with the opposition Orange Democratic Movement. In the course of this one week, there were numerous beheadings of people from targeted communities, the burning of people to death and the displacement thousands were displaced from their places of residence. It is alleged that these killings in Naivasha were planned at State House, the official residence of the Kenyan president and involved leading Kikuyu businessmen, political leaders and top government officials. According to witnesses, these attacks were directed by local business people. The youth were paid Shs 7000 ($100) for taking part in the violence and killings and Shs 15,000 for every Luo man that they beheaded. The official number of those killed in Naivasha was forty one. Twenty three of these were burned alive and amongst these were thirteen children including two infants who were under two years old. It is in the midst of these killings, atrocities and displacements of hundreds of thousands that the international community, under the leadership of the African Union and with the support of the United Nations, the European Union and the United States, swiftly and decisively intervened. Under the chairmanship of Koffi Annan, the former UN secretary general, the team of eminent African personalities was able to broker a peace deal that involved a power sharing agreement that was to be structured under a grand coalition government. Initially, there was a sustained resistance from the government against such intervention arguing that such intervention by the international community would be tantamount to interference in the domestic or internal affairs of Kenya and a violation of her sovereignty. The argument that was then pushed was that the crisis that Kenya found herself in was a Kenyan problem which needed a Kenyan solution and that the international community was simply meddling in affairs that did not concern it. Similar sentiments continued to be repeatedly expressed in the negotiations leading to the signing of the peace deal. The common refrain then was that the international community was interfering in Kenya’s domestic matters. However, the evolution international law starting with the adoption of the United Nations Charter, the Universal Declaration of Human Rights, the covenants on political, social and economic rights and the creation of the International Criminal Courts have rendered this line of argument irrelevant. In the second half of the twentieth century, the international law through treaties and customs have progressively diluted and finally eliminated the principle that sovereign states and people who run them can exterminate its own people without being held accountable for its actions by the international community. Consequently, guided by the international law, the international community has an obligation to intervene in situations of mass human rights violations, as was the case in Kenya at the beginning of the year 2008. As part of the national accord that was signed between the conflicting parties, it was agreed that a commission to inquire into the post-election violence (CIPEV) ought to be set up to inquire into among other things the circumstances of the post-election violence. This commission was chaired by a Kenyan assisted by a commissioner from Democratic Republic of Congo and another one from New Zealand. In its final report, the commission recommended the setting up of a Kenyan tribunal to investigate further and where necessary try the suspected architects of the organized violence. Failure to set up this tribunal within sixty days, the report continues, would result in the names of the suspected organizers being handed over to the International Criminal Court at The Hague. In the aftermath of the release of this report, there are national politicians who have called for amnesty for the suspected organizers of the violence arguing that justice ought to ‘be tempered with forgiveness’. However, under international law, it is generally agreed that no government in the world can issue a legally binding amnesty to persons guilty of perpetrating crimes against humanity. There are other politicians who have resorted to the argument of sovereignty that Kenya as a sovereign state has institutions that will be able to deal with the suspected perpetrators and as such these suspects should not be hounded to The Hague. There are others who argue against the full implementation of the report on the post election violence on the grounds that this would plunge Kenya into turmoil and even lead to the break up of the grand coalition government. For the peace and reconciliation, it is argued, the report should be set aside and Kenya should forge ahead and forget the past. The problem with this argument is that it glosses over some of the underlying factors that contributed to the eruption violence in the first place. The culture of impunity that has today become part and parcel of the Kenyan society was one the major factors that has nurtured the organized violence in our political landscape. Since 1991, serious crimes against humanity have repeatedly visited on the Kenyan people and not a single individual has been brought to justice. This has made the ‘warlords’ and architects of organized violence progressively brazen over the years. Whereas the violence in 1991 was concentrated in the rural areas, by 1997 organized violence was experienced both in the rural and in the urban areas in most regions of the country. The post-election of 2007-2008 was the most destructive and vicious and was felt both within the rural areas and in the urban centers and eventually adversely affected neighboring states like Uganda, South Sudan, Rwanda, Burundi and Democratic Republic of Congo. Those calling for the report to be set aside would only succeed in further entrenching the culture of impunity that will most certainly lead to much more destructive levels of organized violence in the future.

Today, Kenya has the chance of making a break with her past by putting an end to the cycle of impunity by establishing a tribunal to further investigate, and if need be, try the suspected architects of the organized violence. The process of holding the perpetrators of the post-election violence to account for the crimes against humanity that they perpetrated against fellow citizens is the only way in which Kenya, as a nation, can make a new beginning in dealing with the pervasive culture of impunity: a culture that today cuts across all facets of the nation’s society. For Kenya to be reconciled to herself, she needs to confront the truth about organized violence since it is the healing power of the truth that will set her towards the path of reconciliation. Forgiveness can only come after the perpetrators have acknowledged and are ready to take responsibility for their actions by making a change and addressing the grievances of the victims.

Acknowledgement, on the other hand, would only be possible in a situation where all the warring communities are ready to come to terms with the truth about the harms and crimes committed by one group of Kenyans against other Kenyans. The healing power of the Truth about the organized violence that nearly tore Kenya apart is what will secure her future. The consequences for not dealing decisively with the culture and cycle of impunity are too horrific to begin to imagine. As has been previously remarked, the next wave of organized violence will make what happened in between December 2007 and January 2008 ‘look like an afternoon tea party’.



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