A CALL FOR JUSTICE PEACEFUL RESOLUTION – Maina Kiai / Njoki Ndungu – US House of Rep- 6 Feb 08

Maina Kiai’s statement to US House of Representatives

Maina Kiai, Chiarman of the Kenya National Commission on Human Rights, made a statement to the US House of Representatives on the political crisis in Kenya on 6th February 2008. Njoki Ndungu’s contribution is also included further down the page. Ms Ndungu is the CEO of the Center for Legal Information and Communication, Kenya.


1. Thank you for this opportunity to discuss the crisis in Kenya. My name is Maina Kiai and I am the Chairperson of the Kenya National Commission on Human Rights (KNCHR), an independent state body charged with protecting and promoting human rights in Kenya. Previously, I served as founding Executive Director of the Kenya Human Rights Commission, a non-profit organization based in Kenya; Africa Director at Amnesty International in London; Africa Director at the International Human Rights Law Group (now Global Rights) based here in Washington DC; and Research Fellow at TransAfrica Forum also here in Washington DC. I speak on behalf of the KNCHR, as well as for Kenyans for Peace through Truth and Justice (KPTJ), a coalition bringing together more than 50 human rights, legal and governance groups in Kenya.

2. Kenya is at a cross-road that will mean either the complete disintegration of Kenya or the beginning of a new, more democratic, sustainable nation suited to the needs and aspirations of the Kenyan people in the 21st Century. In a deeply painful and costly manner–in terms of lives lost and destruction wrought—the crisis in Kenya has given the country a unique opportunity to move forward in a way that we have been advocating for the last 20 years. In a sense, Kenya is at its “civil war” moment that the US was at in 1861. Just as that war was pivotal in establishing and solidifying the democratic credentials of the US, this moment could lead Kenya to much greater heights if properly handled both domestically and internationally.

3. In this context, the mediation currently going on under the leadership of Kofi Annan, Graca Machel and Ben Mkapa is the last best chance for Kenya to move forward. Whatever can be done to keep the players at the table, and keep them there in good faith, is critical. And efforts that delay, or subvert the talks—whether through insensitive statements and actions or by trying to prolong the talks through acts of filibustering—must be condemned. Consistent regional and international pressure is necessary especially on the hardliners who think that the crisis will blow over. The consequences of the failure of the mediation efforts are too dire to imagine not just for Kenya but for the region.

4. What is going on in Kenya is a political crisis with ethnic manifestation because politics in Kenya is organized ethnically. Clearly there are cleavages and differences in Kenyan society that have erupted brutally to the surface. But these have erupted due to the failure of peaceful means of resolving and addressing these differences, including the failure of elections and political reforms promised to Kenya in the 2002 elections.

5. The crisis in Kenya was foreseeable. In March 2007, the KNCHR submitted a memorandum to President Kibaki urging him to maintain the “gentleman’s agreement” that had been in place since 1997 whereby all parliamentary parties made nominations for appointment to the Electoral Commission of Kenya. We argued that unilateral abandonment of the agreement would likely invite chaos and instability were the elections disputed. Moreover, since January 2006 we witnessed consistent attempts by the state to reduce democratic space and instil fear in society.


6. Some 1000 people have been killed in the one month since violence erupted on December 30, 2007. Note that 3000 people were killed between 1992 and 1998 in the state instigated clashes in the country. During that same period, more than 300,000 people were internally displaced, most of whom have not returned to their farms and homes. In the month since the elections, an additional 300,000 people have been internally displaced.

7. Part of the reason why militia—on both sides—have been so potent and dangerous is that they arose from the earlier violence of the 1990s and were never de-mobilized. Nor was there a process to deal with the root causes of that violence, with the Kibaki government choosing to sweep the matter under the carpet, despite campaign promises to the contrary. With grievances bubbling and fermenting close to the surface, it was relatively easy to reactivate the militia using methods similar to those of the 1990s. Most important, the paymasters and planners of the 1990s clashes were never held accountable.

8. It is estimated that in the month since the crisis started the Kenyan economy has lost about US $3 billion and about 400,000 jobs. Moreover the crisis has severely affected the economies of Uganda, Rwanda, Eastern DR Congo, and Southern Sudan and could bring them to ruin if not checked. All these nations have a history of conflict and violence that could be reawakened by economic collapse.

9. We have observed 4 forms of violence:

i) Spontaneous uprisings of mobs protesting the flaws in the presidential elections. These mobs looted, raped and burnt down buildings in an anarchical manner.

ii) Violence organized by ODM-supporting militia in the Rift Valley that was aimed at perceived political opponents. The initial militia action attracted organized counter-violence from PNU supporters especially in Nakuru, Naivasha areas of the Rift Valley, and Nairobi.

iii) Excessive use of force by the police in ways suggesting “shoot to kill” orders against unarmed protesters mainly in ODM strongholds including Kisumu, Kakamega, Migori, and the Kibera slum of Nairobi. Policing has been uneven in its implementation. In some strong ODM areas, the police have been shooting to kill, while when confronted with pro-PNU militia, they have opted to negotiate with the groups. However, in the Eldoret area, the police largely stood by and watched as pro-PNU supporters were killed and their houses burnt.

iv) Local militia in pro-PNU areas, on receiving internally displaced persons (IDPs) from the Rift Valley, have mobilized in sympathy and turned on perceived ODM supporters, killing them, and burning their houses.

10. The violence is neither genocide nor ethnic cleansing: The root of the problem is not that different ethnic groups decided they could no longer live together. The root of the problem is the inability of peaceful means to address grievances. For this to be genocide there would have to be either state complicity or state collapse and the first obligation would be for the state to provide adequate security for those at risk. Instead we have uneven and selective policing with emphasis on preventing Raila Odinga from holding protests in Nairobi rather than protecting IDPs and others at risk across the country. We therefore believe that the quickest and most effective way to reduce the violence is progress in the current talks.


11. It is clear that the flagrant effort to steal the presidential election was the immediate trigger for the violence. All independent observers have said that the tallying process was so flawed that it is impossible to tell who won the presidential election. Since 1992, Kenya’s elections have been progressively better and fairer, culminating in the 2002 elections which were the best ever, and the 2005 constitutional referendum. The effect of this progression is that Kenyans finally believed in the power of the vote as a way of peacefully resolving differences, a fact confirmed by voting trends in the recent parliamentary elections that saw almost 70 percent of incumbents lose their seats. When this sense of empowerment was subverted, and peaceful legal spaces for protests were disallowed, it is not surprising that frustrations boiled over and violence ensued.

12. We have documented some of the facts and analysis that make clear that the flaws in the tallying of presidential votes rendered untenable the conclusion that Mwai Kibaki was validly elected.

13. With the benefit of hindsight, there were steps taken that paint a picture of a well orchestrated plan to ensure a pre-determined result. These include:

i) President Kibaki’s decision to abrogate the agreement of 1997 on the formula for appointments to the Electoral Commission ensuring that all the Commissioners were appointed by him alone;

ii) An administrative decision within the ECK to give responsibility to Commissioners for their home regions, something that had never been done before, meaning that they appointed all the election officials in the constituencies in their home regions, in a manner that created conflicts of interest;

iii) The rejection of an offer from IFES to install a computer program that would enable election officials in the constituencies to submit results electronically to Nairobi and then on to a giant screen available to the public making it virtually impossible to change results;

iv) A decision to abandon the use of ECK staff in the Verification and Tallying Centre in favour of casual staff provided by the Commissioners directly; and

v) A refusal to ensure that election officials in areas with large predictable majorities for any of the candidates came from different areas so as to reduce the likelihood of ballot stuffing.


14. At this “constitutional moment” that Kenya has reached, we believe the way forward must be centred on truth and justice as the only sustainable road to peace and development. This is the time for Kenya to end the impunity that has been a feature of our history since independence, and also to end the “winner take all” “first past the post” system. Specifically, we call for:

i) An international independent investigation into the 2007 presidential election process in order to come to closure on the elections, find out who did what and why; who ordered it; and promote accountability;

ii) An international independent investigation into the post election violence—from citizens and police–so that there is accountability on all sides.

iii) An interim transitional government to be formed with limited powers of governance and for a limited time–between 1 and 2 years—with Kibaki and Odinga exercising equal powers.

iv) The primary duties of this interim government should be to undertake constitutional reform, and especially explore ways of reforming the current Imperial Presidency; motivate electoral reforms, police reforms, judicial reforms, land reforms, civil service reforms, devolution of power; and conduct new elections at the end of its term.

v) The interim government should also be charged with cooling passions and starting the process of reconciliation through a Truth Justice and Reconciliation Commission that starts operations immediately after the new elections. It is important that presidential elections be held at the end of the interim government to inspire confidence in Kenya’s electoral processes, and as a sign of the new Kenya.

vi) It is also important to note that significant work in all of these areas of reform has already been done in various constitutional drafts and also by Government Commissions and Task Forces so Kenya would not be starting from scratch.

15. To ensure that there is good faith in the mediation it is imperative that the U.S. Government work with the rest of the international community to maintain pressure on Kenya’s leaders to treat the mediation with utmost seriousness. To this end, we welcome U.S .leadership in raising the crisis in Kenya at the UN Security Council, and call for pressure at this level to be maintained and increased.

16. We also urge Congress to request the release of the exit poll conducted by International Republican Institute (IRI) without delay so as to maintain pressure on all sides to negotiate in good faith. In addition, we urge Congress to work with the EU to have the EU Observation Mission Report released immediately.

17. In case of continued intransigence from any of the parties we call on Congress to impose travel bans on the hardliners on both sides and especially those implicated in instigating violence whether through militia or through the police. These travel bans should extend to hardliners in the civil service and to their immediate families.

18. Moreover, assets of the hardliners and those involved in violence should be traced and the assets frozen.

19. Finally, it is important that U.S. military and security assistance be frozen immediately. All US assistance to Kenya should be channelled through non-governmental sources.

Thank you for this opportunity to address these matters affecting democracy, peace and security, not just in Kenya but also in the East African region.
Contributions to the House of Representatives from Ms Njoki Ndungu can be read here

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

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

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

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

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

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

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

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

The Election:

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

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

The Violence.

The Reported violence can be categorized in five distinct types:

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

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

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

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

3. Revenge attacks following (2) above;

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

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

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

What next?

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

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

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

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




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

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

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

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


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


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


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

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


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


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


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

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

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

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

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

Thank you.

From the Kenyan Emergency Blog


1 Comment

  1. I really agree with the statement in defense of Male Masculinity… a lot is being done to push the agenda for women, equality and representation, and it is true that this needs to be fostered. But….. what about the men especially young men’s role in society… There is this cultural/social identity that has bee crushed, as a result of changes that come with urban/rural development in a society with a growning economy. So, so true… this really hit home for me. Well done Maina..

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