Waki Report – Commission of Inquiry into Post-Election Violence (CIPEV)
Executive Summary
The mandate of the Commission of Inquiry into Post-Election Violence (CIPEV)
was to investigate the facts and circumstances surrounding the violence, the
conduct of state security agencies in their handling of it, and to make
recommendations concerning these and other matters.
The Report comprises 5 Parts. Part I of the Report is an Introduction which
discusses the historical context of the violence; Part II is a narration of the
violence province by province. Part III deals with four cross cutting issues:
sexual violence, internally displaced persons, the media and the nature and
impact of the violence. Part IV deals with acts and omissions of state security
agencies and impunity; and Part V contains recommendations made with a view
to the prevention of future reoccurrence of large scale violence; the investigation
of alleged perpetrators; and how to tackle the culture of impunity that has
become the hallmark of violence and other crimes in the country.
Sadly, violence has been a part of Kenya’s electoral processes since the
restoration of multi party politics in 1991. However, the violence that shook
Kenya after the 2007 general elections was unprecedented. It was by far the
most deadly and the most destructive violence ever experienced in Kenya. Also,
unlike previous cycles of election related violence, much of it followed, rather
than preceded elections. The 2007-2008 post-election violence was also more
widespread than in the past. It affected all but 2 provinces and was felt in both
urban and rural parts of the country. Previously violence around election periods
concentrated in a smaller number of districts mainly in Rift Valley, Western, and
Coast Provinces.
As regards the conduct of state security agencies, they failed institutionally to
anticipate, prepare for, and contain the violence. Often individual members of
the state security agencies were also guilty of acts of violence and gross
violations of the human rights of the citizens.
In some ways the post-election violence resembled the ethnic clashes of the
1990s and was but an episode in a trend of institutionalization of violence in
Kenya over the years. The fact that armed militias, most of whom developed as a
result of the 1990s ethnic clashes, were never de-mobilized led to the ease with
which political and business leaders reactivated them for the 2007 post-election
violence. Secondly, the increasing personalization of power around the
presidency continues to be a factor in facilitating election related violence.
The widespread belief that the presidency brings advantages for the President’s
ethnic group makes communities willing to exert violence to attain and keep
power. Inequalities and economic marginalization, often viewed in ethnogeographic
terms, were also very much at play in the post-election violence in
places like the slum areas of Nairobi.
One of the main findings of the Commission’s investigations is that the postelection
violence was spontaneous in some geographic areas and a result of
planning and organization in other areas, often with the involvement of
politicians and business leaders. Some areas witnessed a combination of the two
forms of violence, where what started as a spontaneous violent reaction to the
perceived rigging of elections later evolved into well organized and coordinated
attacks on members of ethnic groups associated with the incumbent president or
the PNU party. This happened where there was an expectation that violence was
inevitable whatever the results of the elections.
The report concludes that the post-election violence was more than a mere
juxtaposition of citizens-to-citizens opportunistic assaults. These were
systematic attacks on Kenyans based on their ethnicity and their political
leanings. Attackers organized along ethnic lines, assembled considerable
logistical means and traveled long distances to burn houses, maim, kill and
sexually assault their occupants because these were of particular ethnic groups
and political persuasion. Guilty by association was the guiding force behind
deadly “revenge” attacks, with victims being identified not for what they did but
for their ethnic association to other perpetrators. This free-for-all was made

possible by the lawlessness stemming from an apparent collapse of state
institutions and security forces.
In general, the police were overwhelmed by the massive numbers of the attackers
and the relatively effective coordination of the attacks. However, in most parts of
the country affected by the violence, failure on the part of the Kenya Police and
the Provincial Administration to act on intelligence and other early warning signs
contributed to the escalation of the violence.
The post-election violence is also the story of lack of preparedness of, and poor
coordination among, different state security agencies. While the National
Security Intelligence Service seemed to possess actionable intelligence on the
likelihood of violence in many parts of the country, it was not clear whether and
through which channel such intelligence was shared with operational security
agencies. The effectiveness of the Kenya Police Service and the Administration
Police was also negatively affected by the lack of clear policing operational
procedures and by political expediency’s adverse impact on their policing
priorities.
The report recommends concrete measures to improve performance and
accountability of state security agencies and coordination within the state
security mechanism, including strengthening joint operational preparedness
arrangements; developing comprehensive operational review processes; merging
the two police agencies; and establishing an Independent Police Complaints
Authority.
To break the cycle of impunity which is at the heart of the post-election violence,
the report recommends the creation of a special tribunal with the mandate to
prosecute crimes committed as a result of post-election violence. The tribunal
will have an international component in the form of the presence of non-Kenyans
on the senior investigations and prosecution staff.

CIPEV Website

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Report of the Independent Review Commission on the General Elections held in Kenya on 27 December 2007

Kreigler Report
EXECUTIVE SUMMARY
On 30 December 2007, following announcement of the presidential election results,
violence broke out in several places across Kenya amid claims that the Electoral
Commission of Kenya (ECK) had rigged the presidential election. Sporadic eruptions
continued for many weeks, bringing death and destruction to thousands of Kenyans. An
African Union-sponsored Panel of Eminent African Personalities led by former United
Nations Secretary General Kofi Annan brokered a settlement which heralded a
government of national unity between the main political parties and a common
commitment to urgent constitutional reform. The settlement included the appointment of
two commissions, one to examine the violence and the other, the Independent Review
Commission (IREC), to examine the December 2007 Kenyan elections from various
perspectives.
In conformity with its terms of reference (ToRs) IREC now presents its findings and
recommendations, based on its analysis of the legal framework for the conduct of
elections in Kenya, the structure, composition and management system of the ECK and
its organisation and conduct of the 2007 electoral operations. The report specifically
examines the integrity of the whole electoral process, from voter registration and
nomination of candidates through voting, counting, transmission and tallying to dispute
resolution and post-election procedures, deals with the role of political parties, observers,
the media, civil society and the public at large, and comments on the independence,
capacity and functional efficiency of the ECK.
Main findings
Kenya’s constitutional and legal framework relating to elections contains a number of
weaknesses and inconsistencies that weaken its effectiveness. This legislation needs
urgent and radical revision, including consolidation.
The electoral management process as a whole needs revision
During the preparation and conduct of the 2007 elections the ECK lacked the necessary
independence, capacity and functionality because of weaknesses in its organisational
structure, composition, and management systems.
The institutional legitimacy of the ECK and public confidence in the professional
credibility of its commissioners and staff have been gravely and arguably irreversibly
impaired. It lacks functional efficiency and is incapable of properly discharging its
mandate.
The conduct of the electoral process was hampered and the electoral environment was
polluted by the conduct of many public participants, especially political parties and the
media.
There were serious defects in the voter register which impaired the integrity of the 2007
elections even before polling started:
• it excluded nearly one-third of eligible voters, with a bias against women and
young people
• it included the names of some 1.2 million dead people
Serious anomalies in the delimitation of constituencies impaired the legitimacy of the
electoral process even before polling started.
There was generalised abuse of polling, characterised by widespread bribery, votebuying,
intimidation and ballot-stuffing.
This was followed by grossly defective data collation, transmission and tallying, and
ultimately the electoral process failed for lack of adequate planning, staffselection/
training, public relations and dispute resolution.
The integrity of the process and the credibility of the results were so gravely impaired by
these manifold irregularities and defects that it is irrelevant whether or not there was
actual rigging at the national tally centre. The results are irretrievably polluted.
Main recommendations
All political role-players in Kenya should recognise that materially defective elections
accompanied by public violence will remain a feature of life in their country absent a
concerted and sustained commitment to electoral integrity by all Kenyans.
Radically reform the ECK, or create a new electoral management body (EMB), with a
new name, image and ethos, committed to administrative excellence in the service of
electoral integrity, composed of a lean policy-making and supervisory board, selected in a
transparent and inclusive process, interacting with a properly structured professional
secretariat.
Devise, implement and maintain appropriate executive, legislative and political measures
to enable the reconstituted or new EMB to initiate, popularise and sustain a national
commitment to electoral integrity and respect for the inalienable franchise rights of
Kenyan citizens.
Empower the EMB, by means of executive, legislative and political measures properly to
perform the essential functions entrusted to it under sections 42 and 42A of the
Constitution (delimitation and the conduct of elections and associated activities).
Adopt a new voter registration system.
Agree (as part of the constitutional review process) on an electoral system, which puts to
rest the continuous discussion about a new electoral system for Kenya.
Choose and implement the necessary constitutional and other legal amendments to give
effect to whichever of IREC’s recommendations are accepted.
Minority Opinion
Two members of the Commission held a dissenting view on some of the findings
reported in Chapter 6. Their opinions are presented in italics at the end of each of the
relevant paragraphs.

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Minutes compiled by Sally Murunga (smurunga@gmail.com Tel. 0722 218031)

Next meeting: Friday 20/06/08 Time: 9.00 am

Convenor: To be communicated

Venue: Oxfam, Shelter Afrique, 6^th Floor

Minutes compiled by Sally Murunga (smurunga@gmail.com Tel. 0722 218031)

Next meeting: Friday 13/06/08 Time: 9.00 am

Convenor: To be communicated

Venue: Oxfam, Shelter Afrique, 6^th Floor

AMREF’s Deputy-Director General, Dr Florence Muli-Musiime has warned that emergency institutions, both local and international, risk misdirecting their humanitarian crisis response if they are not sensitive to community dynamics that are not always visible in times of upheaval. In a powerful message to hundreds of delegates at the 35th Global Health Council Conference taking place in Washington DC, Dr Muli-Musiime described a ’silent emergency’ that nobody spoke about following the post-election violence in Kenya, whose implications for healing and recovery has more serious implications for post-conflict health and social development than the more widely publicised plight of internally displaced people in the country.

‘When the crisis broke out,’ she said, ‘the focus of the health system was to mitigate the physical injuries, while that of the donor community and emergency institutions was on the Internally Displaced People. But we realised that there was a silent emergency which none of the two groups was looking at – that of thousands of people who were caught up in their own homes, unable to go to IDP camps because they would have had to go through hostile territory to get there, and unable to access health or any other basic services. To make matters worse, they were physically assaulted and sexually abused in their own homes.’

Dr Muli-Musiime one of four panelists in a discussion on how current affairs affect health care in the community, with a specific focus on the recent crisis in Kenya. The others were Dr Sylvester Kimaiyo, Programme Director for AMPATH; MAP International’s Senior Director for was Health and HIV/AIDS Policy, Dr Peter Okaalet; and Dr. Salvador de la Torre, Country Director for the Catholic Medical Missions Board, all based in Kenya.

The purpose of the session, according to moderator Sheila Mitchell, Senior Vice-President at the Institute for HIV/AIDS, Family Health International, was to draw lessons from the experiences of organisations that were working on the ground at the time of the crisis in Kenya and come up with recommendations for what to do in similar situations.

AMREF has worked for many years in one of the areas most affected by the violence and attendant humanitarian crisis – Kibera, a vast informal settlement that is home to close to a million people.

‘Our northern-based partners focused on only a fraction of people in need,’ said Dr Muli-Musiime. ‘For example, only 5,000 of Kibera’s 750,000 people were in the camps. Very few organisations – AMREF, MSF and some faith-based institutions – stayed where the majority of people were. Here, we observed the emergence of significant new health challenges. One of these was gender-based violence, which was systematically used as a tool to promote the political violence. Then there was a total breakdown of the health system, and disruption of household life. People were unable to cross from one section of Kibera to another to access even the most basic of health services.’ This scenario was repeated in all the regions where the violence was intense; the Rift Valley, Nyanza and Western provinces.

‘A very scary phenomenon that is difficult to explain was the psyche of the violence – it had no restraint. In Kibera, when a mob descended on a house, sexual violence was unprecedented and unrestrained: everyone – men, children and women – was raped. In Africa, it is not usual for men to admit that they raped other men, but it happened during this violence. The most frightening aspect was that it was all so silent, a silence that was perpetrated by the media, which was more interested in the bleeding, not where there was hurting and the bleeding was in secret. This was extremely sad.’

HIV and TB programmes were severely affected. Systems that had been established to monitor and track patients collapsed. In Kibera for example, where AMREF had established an efficient monitoring system for TB and HIV patients, the organisation lost track, within the first two weeks, of 70 per cent of AIDS patients and 30 per cent of TB patients registered at the AMREF clinic and with community support groups for drug adherance and household support. Dr Muli-Musiime warned that the fallout from this disruption was certain to erupt in coming months as the effects of missing critical dosages took effect on hundreds of patients across the country.

Countrywide, the crisis had a heavy impact on the health system. Supply was affected between the two groups. Initially, when the crisis broke out, the health system was very quick to react, thanks to the 1998 bomb blast that hit Nairobi, leading to the creation of an emergency response plan. The plan immediately kicked in when the crisis broke out last December. Those affected were quickly evacuated and moved to hospitals, although this was hampered by the fact that medical personnel could not move about freely due to ethnic animosities. Hospitals were also able to respond to the crisis adequately for the first two weeks, but as the fighting continued, they began to run out of supplies, especially surgical equipment and drugs. People were disconnected from the services because of inability to access certain areas, because of being displaced, and the inability of service providers to move into the communities as they had been doing before. This was further complicated by the fact that the health workforce was also a target of the violence depending on their ethnic origin.

‘Our response was to work on both sides,’ said Dr Muli-Musiime of AMREF’s activities. ‘We went into the IDP camps and stepped in to do the things that emergency organisations were not doing, such as water and sanitation – building bathrooms and latrines, providing clean water and keeping the camps clean – as well as providing laboratory services. Within the communities, we responded by reaching out and going where the communities were trapped and unable to get out. This required serious dialogue and negotiation with all the actors, working with households, and creating a presence on the ground. Instead of waiting for the people to come to us, we went to them. We set up mobile clinics in each village, as people were unwilling to seek services in sections of Kibera inhabited by different communities. We also had to negotiate with the communities to allow our staff and government workers to move through Kibera to provide services.

The role of the media

Dr Muli-Musiime expressed great disappointment in the media’s handling of the crisis and of the victims. ‘I was deeply saddened that journalists could be so insensitive to the people they were reporting about. The media needs to report painful incidents in a manner that does not magnify the pain and trauma as a result of exposure, repetition of clips showing wanton violence, or blatant insensitivity, particularly when reporting about sexual violence. When you ask a woman whether she was raped and she is surrounded by her family, she will not tell you the truth because of shame and fear of ostracisation, but they told us in private what they had been through.’

With the increased incidence of violence and aggression in communities, she suggested integration of mental health and gender-based violence into whatever work an organisation is doing. ‘The underlying principle is integration. Let us not create silos – we need to ensure that we look at the spiritual and mental, as well as physical health of the people. Similarly, we need to move away from verticalising the various responses within a crisis based on the interests of different intervention partners including donors. This only ends up creating many parallel, segregated systems within the same communities. The international community is involved in patchwork; we want to create a mosaic.’

The healing process

Dr Muli-Musiime suggested that civil society has a huge role to play in the country’s healing process. ‘We need to reach out to politicians, interact with them, and create avenues for dialogue. We may not always agree with them, but at least we will be talking. We must also learn as Africans to appreciate our diversity, because the friction created by diversity is necessary and is needed to drive social change. We must recognise, promote and celebrate the strengths of different communities. The onus is also on each one of us as individuals. We need to change our actions and attitudes. We cannot wait for the politicians or the government to reconcile us. We need to empower communities to be conscious of the issues that cause misunderstanding, to address them and to find solutions for themselves. AMREF believes that there can be no progress in a community, whether in health or any other field, if the people themselves are not fully involved.’

The panelists emphasised the importance of putting emergency plans in place regardless of a country’s past experiences. ‘Kenya has been a haven of peace in a volatile region, and a refuge for many exiled people from troubled countries in the Horn of Africa and central Africa. Nobody expected anything like this would happen there. It taught us that we must always be prepared, and that we must have a plan in collaboration with other players on the ground.’

The need for coordination, honesty and integrity were also emphasised, as many organisations and individuals were involved in the humanitarian efforts, but there was a lot of duplication of activities, and even exploitation of victims of the crisis.

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HIGHLIGHTS

- Representative of the Secretary General emphasizes the need to ensure sustainability of the returns and resettlement process.

- Over two thirds of IDPs have left camps and 123 camps have closed since January.

- 84,752 IDPs remain in camps and over 53,330 IDPs settle in transit camps.

- Aid agencies report funding gaps for proposed projects; only 31.8% of the EHRP funded.

The information contained in this report has been compiled by OCHA from information received from the field, from national and international humanitarian partners and from other official sources. It does not represent a position from the United Nations.

I. General Overview

The Ministry of Planning released the Economic Survey for 2008, which reflected a grim economic situation, beleaguered by increased inflation and slowing economic growth. Economic growth is now estimated to have declined to 3.5-4.5% in 2008 whilst the Survey noted that the post-election violence (PEV) had caused USD 3.7 billion in damages and agriculture productivity had declined by 8.1% from the 2007-2008 fiscal year. Meanwhile, the bill for oil imports increased by 18.8% in the past year, further constraining domestic production with higher input costs. Furthermore, the World Bank was cited to have estimated that five million more Kenyans have been impoverished as a result of PEV. In light of these poor indicators, the key determinates of economic recovery outlined in the Survey, included the country’s ability to achieve the following: political stability, rehabilitation of infrastructure damaged in the PEV, construction of new infrastructure and increased regional economic integration in the East Africa Community.

In addition to economic woes, Kenya also rated poorly in the Global Peace Index for 2007-2008, dropping to number 119 out of 140 rated countries from number 91 out of 121 countries in the 2006-2007 Index. The report cited the high rates of homicide, violence, proliferation of arms and the unstable political climate as contributing factors to the declined rating. Indeed, a report by Peace-Net on small arms and light weapons (SALWs) in Kenya, noted that there is an increasing proliferation of SAWLs and that that the availability of SALWs played a significant role in the PEV.

Weapons are reportedly being sourced from Uganda, Southern Sudan and parts of South Ethiopia. The major weapons trafficking corridors are from Koloa Market, Marakwet district to Eldoret, Uasin Gishu district and parts of Nakuru district; from Kitale, Trans Nzoia district to Eldoret; and from Nairobi to Kauru, Molo and finally to Eldoret. Analysts noted that cattle rustling in West Pokot, Marakwet and East Baringo districts has actually declined as youth are engaging in weapons trafficking, a more lucrative activity. There will be a Global Week of Action on Small Arms and Light Weapons from 2-9 June; during this week, the Kenya Action Network on Small Arms and Peace-Net will strengthen awareness campaigns in support of non-proliferation.

By-elections for five MPs on 11 June will determine the majority representation in Parliament between the Party of National Unity (PNU) and Orange Democratic Movement (ODM). Meanwhile debate continues from within the Grand Coalition as to whether some of the youth who protested peacefully during the PEV could be given amnesty; however, the Internal Security Minister has ruled out the possibility of blanket amnesty. Parliament is expected to debate the Truth Justice Reconciliation Commission Bill, which will provide further guidance on the way forward. Meanwhile, a renewed debate on land policy has emerged after the Minister of Lands suggested that all land with a 99-year lease pre-dating 1909 should revert to Government ownership. The policy is reportedly intended to facilitate the redistribution of land, an underlying driver of past conflicts; however, it may face serious resistance from lease-holders.

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Source: United Nations Human Rights Council

Date: 27 May 2008

UN Expert calls for renewed efforts to protect and assist Kenya’s internally displaced persons as essential to conflict resolution and peacebuilding

Nairobi and Geneva, 27 May 2008 – “At this crucial beginning of recovery, special efforts by the government, humanitarian agencies and the donors are essential if the return of those displaced by the post-election violence is to be sustainable and compatible with international human rights standards. In the absence of substantially increased efforts, we will jeopardize the fragile process of building and restoring of peace in displacement affected communities.” This is the main conclusion of Walter Kaelin, the Representative of the UN Secretary General on the Human Rights of Internally Displaced Persons, at the conclusion of his working visit to Kenya, from 19 to 23 May 2008.

The Representative commended the Government of Kenya, the Kenyan Red Cross, the international humanitarian organizations and the people of Kenya for the effective assistance and support provided to those living in camps since they were displaced by the post-election violence of December 2007 and January 2008. Today, the government’s effort to return the displaced from camps to their fields and homes (Operation Rudi Nyumbani) create particular challenges. These challenges include ensuring that returns are safe and voluntary, providing humanitarian assistance in the areas of return and at the transit sites, and restoring full protection of the IDPs’ human rights in accordance with the UN Guiding Principles on Internal Displacement.

“While reconciliation efforts are under way and there is an increased police presence in affected areas, more robust reconciliation measures involving returning IDPs and the local communities must be undertaken to address the underlying causes of the displacement. Local elected officials and political leaders from all sides must demonstrate their commitment to reconciliation. Without true reconciliation and fair transitional justice measures, the risk of renewed violence against returnees remains high”, the Representative remarked. After visiting returnees at transit sites in Molo and Uasin Gishu districts, the Representative expressed concern that despite welcome efforts by the government, the present speed of the return operations has left some returnees without adequate humanitarian assistance, clean water and sanitation, access to education and basic health services, and basic tools to resume farming or other livelihoods. “Returns must be better planned and coordinated if we want to avoid regression into a new emergency situation. We run the risk now that the displaced persons will return to camps and urban areas in increasing numbers because life at transit sites may become unbearable.” The Representative also highlighted the difficult situation of those among the displaced who leave their camps and host families without a place to return to, in particular agricultural workers, tenant farmers, squatters and small businesspersons. These individuals have no real property and lack the means to resume their economic activities and regain self-sufficiency.

The Representative acknowledged the difficulty of transitioning from an emergency phase to a situation in which the displaced can resume their normal lives: “Experiences from other countries indicate that if we do not get this transition right in the next few weeks and months, the lack of durable solutions for the displaced may jeopardize the present process of reconciliation and conflict resolution. Even worse, it could foment a new round of violence. During this critical phase, I am concerned that the lack of funds is hindering humanitarian agencies in effectively assisting the returnees and helping them to regain their livelihoods. I call on the government and the donors to support the necessary efforts to strengthen recovery. These efforts are essential to protect the human rights of the displaced and to build peace in Kenya. For example, the use of constituency development funds and other decentralized funding sources for early recovery activities benefitting all communities, regardless of their vote, would send a powerful message that it is time for communities to reconcile”. The Representative recommended that the government adopt a comprehensive IDP strategy, as well as the laws necessary to implement it. “Kenya’s ratification of the Protocols on IDPs and on property restitution adopted by the International Conference on the Great Lakes Region provides a unique opportunity to fully equip this country with the instruments necessary to resolve past and future displacement situations”, he remarked.

In Nairobi, the Representative met with the Minister of State for Special Programmes, Honorable Naomi Shaaban, UN agencies, the Kenyan Red Cross, and non-governmental organizations. He visited Nakuru, Molo, Eldoret and Burnt Forest where he met with local authorities and humanitarian organizations and visited both IDP camps and transit sites for returnees.

Mr. Kaelin assumed office in 2004 and is mandated by the UN Human Rights Council to enter into dialogue with governments and international actors in order to enhance the protection of the human rights of internally displaced persons. In support of his mandate, he undertakes working visits and missions, including most recently to the Democratic Republic of Congo, Sri Lanka, Afghanistan, the Central African Republic, Azerbaijan and Côte d’Ivoire. For more information on the mandate see http://www2.ohchr.org/english/issues/idp/index.htm

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KNCHR POSITION ON AMNESTY FOR ALLEGED PERPETRATORS OF POST-ELECTION VIOLENCE
I. Introduction
Recently, a debate in Kenya has raged regarding whether persons arrested in the wake of the post election violence should be prosecuted or granted amnesty. These persons comprise mainly youths from Rift Valley, Nyanza, Coast, Central and Nairobi Provinces who are alleged to have committed diverse offences between December 27th and February 28th. There are conflicting figures as to how many youths are being held and the offences they are alleged to have committed. According to a statement attributed to Agriculture Minister Ruto, around 12,000 youths are being held in police and prison custody following the violence. However, the police dispute this figure and claim that less than 1000 people are in custody.
II. The different shades of arguments
1. One argument made, supporting the case for amnesty, is that by doing what the youths are alleged to have done, they contributed to the formation of the grand coalition government and it therefore does not make sense to have the youths languishing in jail while the politicians they ‘fought for’ enjoy power. It has also been argued that holding the youths in custody discriminates against the poor since politicians who mobilized the youths to those actions are themselves enjoying their liberty.
2. Another argument advanced is that ‘host communities’ are unlikely to cooperate with the return of the internally displaced people (IDPs) while their own sons are languishing in jail. It is a compelling argument from the point of view that the situation is still volatile in some of the regions with some locals threatening not to allow the IDPs to return. Indeed violence has broken out since the return of some IDPs in places like Molo. However this argument is countered by those who say that Kenyans have a right to property and to settle anywhere in the republic and the government should not be blackmailed into releasing alleged perpetrators on the pain of communities sabotaging the IDP return programme.
3. A third argument, rejecting amnesty, suggests that granting amnesty to the suspects would encourage impunity and threaten the rule of law. This would be tantamount to abolishing civilized society and going back to the rule of the jungle. This would also encourage organized violence.
III. Amnesty in other jurisdictions
Kenya is not the first country to consider amnesty following violent conflict. Amnesty has been used to avoid expensive prosecutions especially where massive numbers of violators are
involved; prompting violators to come forward who might otherwise have eluded authorities; and prompting reconciliation between offenders and society.
In a number of instances, it has been used in the context of a truth telling process following protracted social conflict. The mandate of the Guatemala Truth Commission for instance prohibited it from having any “judicial aim or effect”. In El Salvador, the release of the truth commission report was answered with immediate passage of a sweeping amnesty law.1 In South Africa, the truth commission was empowered to recommend amnesty to individuals (not groups) who made full disclosure of all the material particulars of their offence which must have been perpetrated to further a political aim.2
Supporters of amnesty seem to borrow from the South African example by arguing that the youths in custody were pursuing a political aim and that their actions helped bring about a more democratic dispensation. This line of argument has however been countered by pointing out that it is not legitimate to use undemocratic means – such as indiscriminate violence directed at civilian population rather than political or military interests – to pursue democratic ends.
Whenever and wherever it has been applied, amnesty has been a controversial feature. Its opponents see it as impunity that encourages lawlessness and leads to the breakdown of a society’s moral fibre. Human rights advocates often object that amnesties repudiate the principles of individual responsibility for criminality. It is difficult to build a society based on the rule of law unless it is understood that everyone is responsible for his or her own acts and that everyone is subject to punishment for violating the law.
The proponents of amnesty on the other hand see it as an important part of a political transition from dictatorial to democratic regimes. In most cases where amnesty is granted, former military dictators are still very influential and would threaten the transition to democracy if they knew that they might end up behind bars.
The injustice of the amnesty law to the victims of human rights violations in the case of South Africa was tempered by the requirement that amnesties would be accompanied by full disclosure and the promise of reparations for the victims. Most of the perpetrators were spared a trial and imprisonment, but only if they acknowledged their individual responsibility. The South African approach represents an innovative attempt both to honour a bargain that permitted a peaceful transfer of power, and to promote the interests of truth and justice, by requiring perpetrators to publicly acknowledge their crimes as a precondition to receiving a pardon.

IV. Amnesty and International Law
While every government has the prerogative to issue an amnesty or to pardon criminal offences or offenders under its domestic law, when the effects of such measures deprive victims of judicial protection that are guaranteed by international instruments to which the state is a party, then the matter can no longer be regarded as purely domestic. According to international law and
1 Priscilla Hayner, Unspeakable Truths: Facing the Challenge of Truth Commissions, p. 86
2 Chapter 4 of the South African Promotion of National Unity and Reconciliation Act No 34 of 1995
Article 27 of the Vienna Convention on the Law of Treaties, “a party may not invoke the provisions of its internal law as justification for failure to perform a treaty. The doctrine of pacta sunt servanda under Article 26 of the Vienna Convention, which establishes that “every international agreement in force is binding upon the parties to it and must be performed by them in good faith” also reinforces states’ obligations not to interpose their own domestic laws as justifications for non-compliance with international agreements.
The 1993 World Conference on Human Rights called on states to prosecute those responsible for gross human rights violations such as torture and other humanitarian violations. Although the Rome Statute for the creation of the International Criminal Court (ICC), to which Kenya is a signatory, does not prohibit amnesties, it provides for the principle of ‘complementarity’, giving both national and international courts jurisdiction over international crimes such as crimes against humanity, war crimes, genocide, apartheid, torture and other international humanitarian violations.
The duty of states to prosecute perpetrators of human rights violations can also be found in regional and international case law. In the Velasquez Rodriguez case3, the American Court of Human Rights held that the Honduras government was under an obligation to investigate and prosecute perpetrators of gross human rights violations. The Inter-American Commission on Human Rights has held that amnesty laws in Argentina and Uruguay were incompatible with the American Convention on Human Rights. In Prosecutor v Furundzija4 the Trial Chamber of the International Criminal Tribunal for the former Yugoslavia (ICTY) held that amnesties for torture were null and void and cannot be afforded international recognition. In the Pinochet case5, the British House of Lords held that the ex-Chilean dictator could be extradited to Spain to face charges of torture and crimes against humanity committed during his reign, despite an amnesty law being in force in Chile prohibiting the authorities from prosecuting him.
Proposals for blanket amnesty in other jurisdictions have been roundly rejected by such high ranking officials as the former UN Secretary General, Kofi Annan. In a report to the UN Security Council responding to similar proposals in Sierra Leone, Annan said:
“As in other peace accords, many compromises were necessary in the Lome Peace Agreement. As a result, some of the terms which this peace has been obtained, in particular the provisions on amnesty, are difficult to reconcile with the goal of ending the culture of impunity, which inspired the creation of the United Nations Tribunals for Rwanda and the Former Yugoslavia, and the future International Criminal Court. Hence the instruction to my Special Representative to enter a reservation when he signed the peace agreement stating that, for the United Nations, the amnesty cannot cover
3 American Court of Human Rights (series C) no.4, para. 165 (1988).
4 IT-95-17/1-T (10 December 1998).
5 R v Bow Street Metropolitan Stipendiary Magisrate Ex Parte Pinochet (1998) 3 WLR 1456 (HL).
international crimes of genocide, crimes against humanity, war crimes and other serious violations of international humanitarian law [.…].”6

V. KNCHR POSITION AND ADVICE
The Kenya National Commission on Human Rights recognizes the fact that the violence that took place after the disputed election results were announced took place in extraordinary circumstances and that there is need to balance this fact with the right of victims to judicial remedy for violations committed against them. In the circumstances, the Commission advises as follows:
1. That the Police and the prosecution authorities should make public the exact number of people being held in custody, undergoing trial and being investigated as a result of the post election violence. There is also need to categorize the seriousness of the offences with which they are charged.
2. That persons being detained without charge should be produced in court without further delay or released forthwith.
3. That in the interest of truth and justice, no blanket amnesty should be allowed. Blanket amnesty would violate the rights of victims to life, property and equal protection of the law, which are all guaranteed by the Constitution and in international law. Indeed one of the agreements signed at Serena Hotel on 4th March 2008 provides: “No blanket amnesty will be provided for past crimes. Individual amnesty may be recommended… in exchange for the full truth….”
4. That amnesty can be considered for certain minor offences but must be granted only upon individual application and within a legislative framework. To qualify for amnesty, alleged perpetrators must make full disclosure of the act for which they are applying for amnesty and tell the whole truth which might lead to the arrest and prosecution of the financers and planners of the violence. Before amnesty is granted, the views of the victims should be sought and taken into account.
5. That no amnesty should be granted for international crimes, such as crimes against humanity, war crimes, genocide, torture and other serious violations of international humanitarian law. The Serena agreement also states, “… provided that serious international crimes (crimes against humanity, war crimes, or genocide) are not amnestied, nor persons who bear the greatest responsibility for crimes covered by the Commission”
6. That prosecution of alleged perpetrators of post election violence should be fast-tracked. This might be done through the establishment of special courts for this purpose.
7. That while the mechanism for amnesty is being legislated, suspected perpetrators, who may not be facing charges of serious human rights violations, should be bonded to keep the peace.
8. That amnesty should apply across the country without discrimination and based purely on the type of crimes committed.
6 Seventh Report of the Secretary-General on the United Nations Observer Mission in Sierra Leone S/1999/836, 30 July 1999. Para 55.
9. That the law should be applied equally, and robust investigations into the activities of politicians who incited the violence and the conduct of police who used excessive force should continue and all the culprits brought to justice without discrimination.
Finally, the Commission wishes to restate its position that violence must never be rewarded and that while reconciliation is important, holding perpetrators of violence to account is crucial if we are to combat the culture of impunity.

Dowload the report — knchr-position-on-amnesty-

Minutes compiled by Sally Murunga (smurunga@gmail.com Tel. 0722 218031)

Next meeting: Friday 06/06/08 Time: 9.00 am

Convenor: George / Dekha

Venue: Oxfam, Shelter Afrique, 1^st Floor

Kwani Trust, in partnership with the Coalition of Concerned Kenyan Writers (CKW) are pleased to announce the release of a new book, After the Vote; Dispatches from the Coalition of Concerned Kenyan writers on May 29, 2008

CKW are a coalition of the foremost writers, thinkers, philosophers and artists in the country, who came together in response to the 2007 election and its aftermath. With more than 80 members, CKW has created an online forum in which to share and critique each other’s writing, with the explicit purpose of exploring and articulating solutions to the disaster that befell Kenyans.

This book features non fiction stories by five writers: Alison Ojany Owuor, Andia Kisia, Tony Mochama, Simiyu Barasa and Kalundi Serumaga. The book will be available at all leading bookshops and supermarkets.

It is the first in a series of publications by Kwani Trust to be released this year in response to the post election crisis and the ensuing violence in Kenya. Since its inception in 2003, Kwani Trust has been at the forefront in publishing contemporary creative fiction, non fiction and poetry.

For more information about After the Vote, please visit www.kwani.org or contact Annette Majanja on +254 – 2 – 3745210 or email info@kwani.org

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Title: After the Vote

Featured writers: Kalundi Serumaga, Alison Ojany Owuor, Andia Kisia, Simiyu Barasa, Tony Mochama

Genre: Creative Non Fiction

ISBN: 9966 -7008 -1 -1

RRP: Ksh. 200

Availability: All leading bookstores