African human rights law journal



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to be collective. In the process, they fuel inter-community tensions between ‘original owners’ and ‘actual occupants’. Nevertheless, both the Kenyatta regime (1963-1978) and the Moi regime (1978-1992) prior to the introduction of multiparty politics were able to contain inter-community tensions borne out of colonial and post-colonial uneven development policies and access to land.

However, the introduction of multiparty politics in 1992 removed the lid that had helped contain inter-community conflicts thus far. This became even more problematic when it clearly appeared that



government was [directly] involved in provoking ... ethnic violence

for political purposes and [had] taken no adequate steps to prevent it

66 Anonymous Independent Kenya (1982) 106.

67 K Moghalu ‘Electoral conflicts in Africa: Is power-sharing the new democracy?’ (2008) 4 Conflict Trends 33.

from spiralling out of control’.68 According to Abdullahi, both the

1992 and 1997 elections were preceded by large-scale violence as a

deliberate strategy of the Kenyan government under the ruling Kenya

African National Union (KANU) to displace populations belonging to

the Luo, Kikuyu and Kamba communities considered hostile to the

ruling party and thus render them incapable of exercising their

voting rights. The 2002 elections were less violent; yet they claimed between 116 and 209 lives.69

The December 2007 elections in Kenya thus took place against the backdrop of a legacy of election-related inter-community violence fuelled by the state. More importantly, they took place within a context of entrenched impunity in so far as election-related violence

was concerned. In fact,70
[t]he Akiwumi Judicial Commission of Inquiry into Ethnic Violence, set up in

1998, had identified key politicians, civil servants and business people who

may have been involved in the violence in certain parts of the country

between 1991 and 1997. [Yet,] [n]o action was taken on the

recommendations of the report.
Although the pre-election period was filled with tensions fed by ethnocentric propaganda by some media houses71 and by inflammatory remarks by certain politicians, the bulk of the violence

was only unleashed after the Chairperson of the Electoral Commission of Kenya (ECK) announced that incumbent President Mwai Kibaki had won the presidential elections. Overall, violence took at least three patterns. First, there were clashes between state security forces and supporters of the Orange Democratic Movement (ODM) whose leader and presidential candidate, Raila Odinga, claimed to have won the elections. Second, there were direct violent confrontations between supporters of the ODM and Kibaki’s party, the Party for National Unity (PNU). Third, there were widespread ethnic-based reprisals targeting ordinary people – mainly but not exclusively in informal settlements and impoverished locations. According to

Njogu,72
[t]he narratives show ... that whereas some of the post-election violence was spontaneous, much of it was organised and planned by political leaders and systematically targeted members of specific communities.

68 K Njogu (ed) Healing the wound: Personal narratives about the 2007 post-election violence in Kenya (2009) 7.

69 AM Abdullahi ‘State creation of internally displaced persons in Kenya, 1991-98: The process and political dimensions’ (2004) 1 East African Journal of Peace and Human Rights 10 1.

70 Njogu (n 68 above) 2-3.

71 A survey conducted in 2009 found that ‘certain sections of Kenyan media were unethical and unprofessional before, during and after the elections and they may have contributed to ethnic polarization and accentuated violence’; Njogu (n 68 above) 9.

72 Njogu (n 68 above) 2.

This latter trend was the most vicious of all as it could hardly be contained, let alone prevented successfully by security forces. It was responsible for the large majority of deaths and displacements. It flowed from long-held inter-community resentments having their origins in colonial era policies but fuelled by ethnocentric policies implemented by post-colonial administrations.

In nearly two months, the violence had caused about 1 220 deaths as well as the displacement of over 300 000 people within the country and of scores of others to neighbouring countries.73 Eventually the

crisis was resolved through the signing of the National Dialogue and

Reconciliation Accord by Mwai Kibaki and Raila Odinga on

28 February 2008 under the auspices of the African Union (AU). The

Accord provided for an equitable sharing of government positions

between the PNU and the ODM for the entire office term or until such

time when the next general elections are held in the country.
5.2 Power-sharing dispensation
As argued above, the power-sharing mechanism for Kenya was provided for in the National Dialogue and Reconciliation Accord signed on 28 February 2008. It focused exclusively on the national government. This was mainly because neither the PNU nor the ODM disputed the results of the parliamentary elections as announced by the ECK. In fact, according to the ECK, the ODM had won 99 out of

210 parliamentary seats against 43 seats for the PNU. Yet, in spite of the ODM’s overwhelming parliamentary victory, its presidential

candidate, Raila Odinga had, according to the ECK, lost the presidential vote with 43 per cent to Kibaki’s 47 per cent. If anything, the vast discrepancy between the parliamentary and presidential results – with both elections held the same day – contributed to strengthening the ODM’s case that the presidential elections were indeed rigged, a view supported by several international election observers.

The National Dialogue and Reconciliation Accord was thus based on a power-sharing principle. It called upon the PNU and the ODM to form a government of national unity, the composition of which should reflect the parliamentary strength of the coalition members. The Accord also created the post of Prime Minister to be awarded to the leader of the largest party of the governing coalition as represented in the National Assembly. Concomitantly, there would be two Deputy Prime Ministers, one from each of the coalition



partners.74
Furthermore, the contestants signed several side agreements to establish separate commissions: a Constitutional Review Commission [CRC]; a Commission of Inquiry on Post-Election Violence (CIPEV) ... a Truth, Justice

73 G Maina ‘Mediating to governments of national unity – A conflict transformation approach’ (2011) 3 ACCORD Policy and Practice Brief 2; Njogu (n 68 above) 2.

74 Mehler (n 15 above) 469.

and Reconciliation Commission (TJRC); and an Independent Review



Commission (IREC) to examine long-standing sources of grievance.
On 18 March 2008, the newly-elected Kenyan Parliament unanimously passed75
the National Accord and Reconciliation Bill (which outlines the concept of power sharing) and a Constitutional Amendment Bill (which creates the post of the Prime Minister and of the two deputy prime ministers).
Although provisions regarding the appointment of the new Prime Minister and his two deputies were fully implemented, the outlook of the new cabinet failed to reflect the balance of forces within parliament. Instead, the 42-member cabinet was constituted on an equal basis between the PNU and the ODM. Furthermore, the Constitutional Amendment Bill ‘fell short of specifying the functions of

the Prime Minister’.76

The signing of the 2008 Accord was instrumental in quelling the widespread post-electoral violence in Kenya. The subsequent Government of National Unity (GNU) has since provided an opportunity for co-operation between the PNU and the ODM. This was evident during the constitutional reform and referendum processes in 2009 to 2010. Both parties backed the new Constitution in contrast to the 2005 referendum when the ODM succeeded in mobilising the majority of Kenyan voters against a PNU-sponsored Constitution.

However, by its nature and the process through which it was arrived at, the GNU as designed in Kenya was ‘a deterrent to democracy and a mockery of the choice made by voters’.77 It

represented a major setback to the Kenyan democratic consolidation process that had shown signs of maturation during the 2002 elections. The establishment of the GNU did not take into account the concerns of ordinary Kenyans, confirming thus the assumption of sceptic observers that Kenyan politics remained elitist in spite of the choreographed public consultations. Power sharing in Kenya represented a threat for good governance as it denied the country an opposition that could keep government in check. No wonder it has been blamed of being ‘ineffective due to continued political tension,

violence and corruption’.78
5.3 Implications for justice and human rights
There is no doubt that the immediate cause of the 2007-2008 post- electoral violence in Kenya was the inability of the ECK to withstand political pressure emanating from the ruling PNU and to perform its role impartially. It is equally true that the post-electoral crisis fed into

75 As above.

76 As above.

77 Maina (n 73 above) 5.

78 Maina (n 73 above) 5.

both Kenya’s legacy of election-related violence as well as the country’s history of unequal access to socio-economic opportunities and key resources, including land, among communities, prompting inter-ethnic resentments and tensions. However, perhaps the most compelling reason for the mayhem was the general lack of trust by the Kenyan public in the country’s judiciary. In fact, in spite of the electoral law providing for judicial courts as the only mechanism to challenge election results, the ODM deliberately decided not to follow

such a route. According to Njogu, the Kenyan judiciary79
has over the years been perceived as not a true arbiter in electoral grievances. Attempts by presidential candidates in 1992 and 1997 to challenge the election of Daniel Arap Moi were not fruitful and over the years Kenyans have lost confidence in the judiciary, viewing it as corrupt and easy to manipulate by the state.
In this context, it is therefore not surprising that Kenyans opted to add the ‘justice’ dimension to their version of a truth and reconciliation commission. Still, the pursuit of justice in post-2007 Kenya has proven a difficult task. The Commission of Inquiry related to Post-Election Violence (CIPEV) published its report on 15 October 2008. Although it provided detailed accounts of violence and divided responsibilities between the ODM and the former PNU government, the report fell short of naming individuals that were behind the violence. The report has been qualified in human rights advocacy circles as ‘a half-baked job that attempts to cover up offences committed by people who

deserve no such protection’.80 Njogu has observed the same trend in



so far as the report published by the Kenya National Commission on

Human Rights (KNCHR) in August 2009 is concerned. He laments that the report failed81


to capture the chronology of events leading to the post-election violence and ... detail specific violence-related activities of national and local leaders as well as retired military and police officers during the carnage.
However, it ought to be admitted that both the report by the CIPEV (also known as the Waki Report) and the report by the KNCHR provided a list of alleged perpetrators of the violence. The Waki report actually handed to Kofi Annan a sealed envelope containing the names of those believed to have played the largest role in the post- election violence. The envelope (containing the names of six key suspects) was later passed by Kofi Annan to the prosecutor of the International Criminal Court (ICC), Luis Moreno Ocampo.

The Kenyan national unity government has not been able to institute judicial actions against those suspected of being behind the

2007-2008 post-election violence in the country. Nor has it provided the necessary leadership for the Truth, Justice and Reconciliation

79 Njogu (n 68 above) 3-4.

80 D Branch Kenya: Between hope and despair, 1963-2011 (2011) 280.

81 Njogu (n 68 above) 2.

Commission to play its role effectively. By June 2012, only one individual, 24 year-old Peter Ruto, has been convicted by a Kenyan court for crimes committed during the 2007-2008 post-electoral violence. Ruto received a life in prison sentence at Nakuru High Court on 12 June 2012 for killing his 67 year-old neighbour, Kamau

Thiong’o, in January 2008.82 This state of affairs is a clear indication of

the lack of commitment to justice on the side of Kenyan parties to the power-sharing government. As Branch observed,83
[b]oth the perpetrators and the organisers had escaped justice. Efforts to establish a tribunal to try the main organisers of the violence failed to get through parliament, not least because many MPs feared prosecution.
The reluctance on the part of Kenyan officials to set up a national prosecution mechanism for the post-election violence led to the International Criminal Court becoming involved in the process. The ICC has since singled out four individuals (from the original list of six), namely, Deputy Prime Minister and Finance Minister Uhuru Kenyatta, former Public Service chief Francis Muthaura, Kass FM radio presenter, Joshua Arap Sang, as well as Eldoret North Member of Parliament (MP), William Ruto, as suspects in the case. Although it remains unclear if these individuals will ever stand trial before the ICC, many Kenyans initially welcomed the ICC’s move that they viewed as susceptible of ‘deterring politicians from hate speech and ensuring

that they remain accountable for their actions’.84

In so far as human rights in post-2007 Kenya are concerned, it is worth mentioning the case of people who lost their lives and those who were displaced as a result of the violence. Just as the government of national unity has failed to ensure justice for the dead and their families, so has it betrayed the vast majority of the internally-displaced people (IDPs). Until the official end of term of office of the coalition government as symbolised by the March 2013 elections, IDPs were still awaiting relocation to promised settlements and compensation for their material losses during the crisis. Perhaps the most encouraging aspect of the March 2013 elections, as far as the victims of the 2007-

2008 electoral process are concerned, has been their relative peacefulness. They did not bring about fresh cases of internal

82 W Macharia ‘Court convicts Kenyan over poll chaos’ http://www.nation.co.ke/ News/politics/ (accessed 27 June 2012).

83 Branch (n 80 above) 283.

84 Maina (n 73 above) 6. However, it ought to be noted that the initially mostly favourable Kenyan public opinion toward the ICC prosecution seems to have been reversed by the March 2013 general elections, as reflected by the triumph of the Jubilee Coalition (represented by Uhuru Kenyatta and William Ruto), which campaigned against the ICC.

displacement, providing hope that existing victims may still have their concerns addressed by the new government.


6 Lessons learned and the way forward
As much as the nature of wars has changed from interstate confrontations fought by professional armies (generally along the borderlines) to internal wars with high levels of civilian participation and victimisation, so have mediated or negotiated processes emerged as the most common mechanism to end civil wars. In this new environment, power sharing has become a key tool in helping war- torn societies to transit from violence to peace and stability. The three cases analysed in this article provide the lessons below, highlighting nuances in patterns of power sharing in post-violence African societies and their interaction with justice and human rights.
Power sharing has not solely been used as a peace-making tool, nor has it only apply to societies emerging from civil war.
In post-genocide Rwanda, power sharing was voluntarily chosen as a governance model by the victorious RPF as a proof of its unwavering commitment to building a new Rwandan society entrenched in the principles of inclusiveness, social cohesion and national unity. In post-

2007 Kenya, power sharing emerged as a necessity suggested to the two main protagonists, namely, the ODM and the PNU, by

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