Tracing the roots of Kenya’s electoral malfeasance and clashes

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This week, a neighbour and family friend of many years was butchered in the serene Cherangani escarpment in Pokot to the North West of the country about 500 kilometres from Nairobi. At 8 a.m., Peter Muchina, a 65-year-old man from the Kikuyu community who has lived in the district for over 40 years, was hacked to death by a gang of young men from the Kalenjin tribe, the main ethnic group within the North Rift Valley. Muchina’s death is one of more than 900 persons whose lives have been suddenly ended by tribal mayhem or through the barrel of a policeman’s gun since the ill-fated December 2007 elections. Yet, when Kibaki, Kenya’s illegitimate president, and his minions were manipulating electoral results, the possibility of such consequences could not have occurred to them. In their power-induced orgy, they had forgotten that Kenya’s 42 disparate communities were tenuously held together by a threadbare rope of hope for change.

Opinion: Tracing the roots of Kenya’s electoral malfeasance and clashes

Today, Kenya is a nation cheated; a people lied to. The events of the last month leave an indelible mark in our consciousness as a country, one which will remain forever etched in our generational psyche and stand out as a historical reminder of what can go wrong in a state so promising. The miscellany of the presidential elections that ended with the announcement of Kibaki’s victory by the maligned Electoral Commission of Kenya represents an ignominious epoch of electoral malpractice at its best. To conjure up a scene so blighted would not have been imaginable. But for keen observers of Kenya’s democratic evolution, it is not difficult to see a clear methodology and pattern based on an assessment of the conduct of President Kibaki since his referendum defeat in 2005.

In November 2005, Kenyans who for several years had sought a new constitutional dispensation that would radically transform the state from an oligarchy to a truly representative parliamentary democracy with substantive trim down of executive power from the presidency and a devolution of fiscal and political governance to Kenya’s districts, voted overwhelmingly to reject a manipulated draft constitution that would have maintained the status quo ante. This rejection, spearheaded by the Orange Movement led by Raila Odinga, was a huge smite on Kibaki’s political armour, and set the pace for the rapid appropriation of political and economic instruments by a small clique of people, mainly from the president’s Mt. Kenya region. In quick succession, Kibaki, who before then had posed as a tolerant leader, undertook two calculated policy pogroms to first, rid the country of dissent and second, assert a totalitarian control over the governance institutions of the state.

Stepping up the war on dissent

To rid the country of dissent, Kibaki simultaneously kicked out Raila Odinga’s Liberal Democratic Party from the National Rainbow Coalition which had propelled him to power in 2002 and appropriated Kenya’s opposition into his government by appointing several members of KANU into his bloated cabinet that represented, in his version, all the hues of Kenyan communities. This marked the beginning of the decline of the official opposition in Kenya’s purported multiparty democracy leading, quite unsurprisingly, to KANU’s official dalliance with Kibaki under the PNU framework during the just ended elections.

The independent media, Kenya’s best bet of an alternative voice, was then subjected to sustained surveillance and intimidation by the Kibaki regime. First, Mrs. Kibaki, Kenya’s first lady, stormed the studios of Nation Media Group and, in the presence of a senior police officer, and in the full glare of cameras; she assaulted various journalists and damaged the camera of Clifford Derrick Otieno, a journalist with the Standard Newspapers. This was followed months later by the raid by members of an elite police squad of premises belonging to the Standard Group, the disabling of the station’s transmitting equipment, burning of its flagship newspaper, the Standard, and the confiscation of essential journalistic equipment. The government also temporarily closed Kass FM, a vernacular radio station broadcasting to the vast rift valley province due to its active support to the anti proposed constitution movement. Legal proceedings by individuals and NGOs to counter these violations of article 19 of the Universal Declaration on Human Rights were discontinued by the Attorney General’s exercise of nolle prosequi powers vested on him by the Kenyan constitution.

As a surrogate of the independent media, Kibaki established the office of the Government spokesman, which set up an extensive communication infrastructure which generated one propaganda after another to sanitize the government’s waning credibility and paint the re-mobilizing Orange Movement group in the worst light possible.

Institutional totalitarianism

Three important governance institutions were reconfigured to serve the interests of Kibaki and his cronies leading quite inevitably to the disastrous electoral results witnessed in the last few days.

The Kenya Anti Corruption Commission was rendered toothless through the enactment of an amendment to the Economic Crimes Act to deprive the Commission any jurisdiction to investigate pre-2003 allegations of corruption. This was an attempt at granting, through the back door, unfettered amnesty to the perpetrators of Kenya’s grand corruption scandals, notably the Goldenberg and Ango leasing scandals, and smoothing the way for Kibaki’s close collaboration with former president Moi in stopping the Orange Movement’s political ascendancy.

Kibaki then unilaterally appointed nine new commissioners to the Electoral Commission of Kenya, the body constitutionally mandated to oversee the entire electoral process, without consulting the opposition and in total disregard of the principles set out by the Inter Party Parliamentary Group agreement reached in 1997, and which had hitherto been complied with even by the more undemocratic former president Moi. The results were a Commission that could not be trusted to preside over a free and fair election even though a chairman proposed by the orange movement was reluctantly retained, and even then, barely a month and a half to the general election day.

Thirdly, having seriously dented the independence of the judiciary earlier in his regime through the so called ‘radical surgery of the judiciary’, when in one swoop over fifteen judges of the High and Appellate courts were dismissed for allegedly being corrupt, notwithstanding the fact that these judges enjoyed security of tenure under the constitution, Kibaki then replaced them with acting judges without the same Constitutional security of tenure guarantees. Little wonder that the rulings and judgements flowing from these courts have subsequently been largely in favor of the government’s declared position. As if these developments were not enough, barely a week to the December 2007 elections Kibaki made further appointments to the judiciary, without consultation with major stakeholders, including the Law Society of Kenya, raising increased suspicion as to its timing and deepening the judiciary’s illegitimacy. To imagine that Kenya’s judiciary can therefore sort out the current electoral imbroglio would tantamount to conceiving Galileo procuring due process from the infamous Papal Court of Worms.

The rigged election and Kibaki’s surreptitious swearing in ceremony just thirty minutes after the announcement of the final presidential election results by the Electoral Commission televised live by the state-run Kenya Broadcasting cooperation, the only media house not barred from the process, is therefore, in my view, a culmination of a long, systematic and deliberate attempt to destroy Kenya’s attempt at developing a democratic state. It is a mockery to the ten million Kenyans who braved the sun and long queues to cast their votes on December the 27th, and will forever haunt any attempts at using legal means to secure substantive governance changes in the country.

Sorting out the Chaos

Kenya’s development partners, notably the USA and European Union, must sustain the demand that Kibaki and his handlers urgently relinquish their demented position and instead embrace a process of international mediation to save the country’s flagging credentials as an Island of Peace in a sea of turbulence. Humanitarian organizations, must equally prepare adequately to sustain long term interventions in Kenya’s humanitarian catastrophe unfolding in the slums, the Rift Valley and in far away provinces, including in the North Eastern province that relies heavily on food aid from the country’s hinterland, now wracked in havoc. Most importantly and in the long term, Kenya must commence the long walk of finding sustainable solutions to equitably managing its multicultural and multiethnic population as well as addressing marginalization and inequalities. Democracy will begin to bear fruit and mature in Kenya and Africa, when governance institutions are seen to be independent and transparent. Transitional Justice Mechanisms also need to be brought to bear to foreclose future recurrence of tribal animosity and to bring to book all perpetrators of human rights abuses since independence in 1963.

Such an aberration as has been witnessed in Kenya´s election will also be a serious test to the recently adopted African Union´s Charter on Democracy, Elections and Good Governance, which inter alia obligates the members of the AU to “Promote the holding of regular free and fair elections to institutionalize legitimate authority of representative government as well as democratic change of governments´´. It remains to be seen how far Kofi Annan’s mediation effort’s, under the Union’s umbrella and with the backing of both the United States and the European Union, will respond to Kenya’s gigantic challenge. Before then it seems that the deaths of more Muchinas, Weres, and Koechs will continue.


Korir Sing’Oei Abraham
Fulbright Scholar University of Minnesota Law School and
Director, Centre for Minority Rights Development (CEMIRIDE) Kenya
Mail: korir.singoei@cemiride.info or
Singo003@umn.edu
Web page: http://www.cemiride.info

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