WITNESS STATEMENT
THE HOUSE COMMITTEE ON FOREIGN AFFAIRS, SUBCOMMITTEE ON AFRICA AND
GLOBAL HEALTH, WEDNESDAY FEBRUARY 6 2008.
MS. NJOKI S NDUNGU
FORMER MEMBER OF PARLIAMENT &
CEO, CENTER FOR LEGAL INFORMATION AND
COMMUNICATION IN KENYA (CLICK), a non-profit organization dealing with policy
development on constitutional and legal reform & issues of transitional
justice.
Introduction:
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
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,
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
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:
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,
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
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.
WHAT THE POLITICAL SETTLEMENT
SHOULD CONTAIN:
A. CONSTITUTIONAL
AND LEGAL REFORMS.
ELECTORAL REFORMS
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.
EXECUTIVE POWER REFORMS
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.
JUDICIAL SERVICE REFORM
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
CIVIL SERVICE REFORM.
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.
B. LAND REFORMS.
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.
C. TRANSITIONAL
JUSTICE.
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
D.
OTHER
IMMEDIATE ACTIONS.
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
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
Thank you.
I
would like to acknowledgments the use in this analysis of writings, thoughts,
and discussions of with Cabral Pinto, Mugambi Kiai, Betty Murungi, Vital Voices – the Women’s Agenda, Women in Kenya Together (WONET), Urgent
Action Fund, Jane Kiragu. John Mbaria, et al.
[1] The Ndungu Report which investigated Land grabbing in the past, adversely named over 100 MP’s sitting on both sides of the House in the last Parliament. Most are still political ‘Big Wigs’ in the current standoff.
[2] Official statistics in 1992 clashes alone report 779 dead and 50,000 displaced.
[3] Among them key ODM politicians who are currently members of the current Parliament.
[4]
The
[5] Justice Minister, Martha Karua, undermined all efforts by the Committee on the Administration of Justice and Legal Affairs to midwife this minimum package in the House.
[6]
This is interesting, particularly when it is a known fact that many Kenyans
discarded the 3-piece suit that is vote for President, MP and Councilor only
from one party, so it is impossible to know who exactly voted for whom.
However, several exit polls indicate that many kikuyus in
[7]
Unconfirmed reports state that there are more than 1,500 women rape victims
within the camps in