[Senate Hearing 110-610]
[From the U.S. Government Publishing Office]
S. Hrg. 110-610
THE IMMEDIATE AND UNDERLYING CAUSES AND CONSEQUENCES OF KENYA'S FLAWED
ELECTION
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HEARING
BEFORE THE
SUBCOMMITTEE ON AFRICAN AFFAIRS
OF THE
COMMITTEE ON FOREIGN RELATIONS
UNITED STATES SENATE
ONE HUNDRED TENTH CONGRESS
SECOND SESSION
__________
FEBRUARY 7, 2008
__________
Printed for the use of the Committee on Foreign Relations
Available via the World Wide Web: http://www.gpoaccess.gov/congress/
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COMMITTEE ON FOREIGN RELATIONS
JOSEPH R. BIDEN, Jr., Delaware, Chairman
CHRISTOPHER J. DODD, Connecticut RICHARD G. LUGAR, Indiana
JOHN F. KERRY, Massachusetts CHUCK HAGEL, Nebraska
RUSSELL D. FEINGOLD, Wisconsin NORM COLEMAN, Minnesota
BARBARA BOXER, California BOB CORKER, Tennessee
BILL NELSON, Florida GEORGE V. VOINOVICH, Ohio
BARACK OBAMA, Illinois LISA MURKOWSKI, Alaska
ROBERT MENENDEZ, New Jersey JIM DeMINT, South Carolina
BENJAMIN L. CARDIN, Maryland JOHNNY ISAKSON, Georgia
ROBERT P. CASEY, Jr., Pennsylvania DAVID VITTER, Louisiana
JIM WEBB, Virginia JOHN BARRASSO, Wyoming
Antony J. Blinken, Staff Director
Kenneth A. Myers, Jr., Republican Staff Director
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SUBCOMMITTEE ON AFRICAN AFFAIRS
RUSSELL D. FEINGOLD, Wisconsin, Chairman
BILL NELSON, Florida JOHNNY ISAKSON, Georgia
BARACK OBAMA, Illinois NORM COLEMAN, Minnesota
BENJAMIN L. CARDIN, Maryland DAVID VITTER, Louisiana
JIM WEBB, Virginia CHUCK HAGEL, Nebraska
(ii)
?
C O N T E N T S
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Page
Albin-Lackey, Chris, senior researcher, Africa Program, Human
Rights Watch, Washington, DC................................... 29
Prepared statement........................................... 31
Almquist, Katherine J., Assistant Administrator, Bureau for
Africa, U.S. Agency for International Development, Washington,
DC............................................................. 9
Prepared statement........................................... 13
Barkan, Dr. Joel D., Africa Program, senior associate, Center for
Strategic and International Studies, Washington, DC............ 40
Prepared statement........................................... 42
Cardin, Hon. Benjamin L., U.S. Senator from Maryland, opening
statement...................................................... 3
Prepared statement........................................... 4
Feingold, Hon. Russell D., U.S. Senator from Wisconsin, opening
statement...................................................... 1
Frazer, Hon. Jendayi, Assistant Secretary, Bureau of African
Affairs, Department of State, Washington, DC................... 5
Prepared statement........................................... 6
Mozersky, David, director, Horn of Africa Project, International
Crisis Group, Washington, DC................................... 46
Prepared statement........................................... 49
Material Submitted for the Record
Testimony of Gregory Gottlier, Deputy Assistant Administrator,
Bureau for Democracy, Conflict and Humanitarian Assistance,
Department of State, Washington, DC--Before the House
Subcommittee on Africa and Global Health of the Foreign Affairs
Committee, Wednesday, February 6, 2008......................... 68
Letter from Hon. Stephen Kalonzo Musyoka EGH MP, Vice President
and Minister for Home Affairs, Republic of Kenya............... 72
Prepared statement of Tavia Nyong'o, Assistant Professor of
Performance Studies, New York University, New York, NY......... 74
Prepared testimony of Charles Clements, M.D., M.P.H., CEO and
president, Unitarian Universalist Service Committee (UUSC),
Cambridge, MA.................................................. 74
``Kenyans for Peace'' Position Paper............................. 77
``Breaking the Stalemate in Kenya'' by Joel D. Barkan--January 8,
2008........................................................... 78
``Too Close to Call: Why Kibaki Might Lose the 2007 Kenyan
Election'' by Joel D. Barkan................................... 81
``Kenya After Moi'' by Joel D. Barkan............................ 86
Orange Democratic Movement (ODM) Position Paper.................. 100
(iii)
THE IMMEDIATE AND UNDERLYING CAUSES AND CONSEQUENCES OF KENYA'S FLAWED
ELECTION
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THURSDAY, FEBRUARY 7, 2008
U.S. Senate,
Subcommittee on African Affairs,
Committee on Foreign Relations,
Washington, DC.
The subcommittee met, pursuant to notice, at 9:30 a.m., in
room SD-419, Dirksen Senate Office Building, Hon. Russell D.
Feingold, chairman of the subcommittee, presiding.
Present: Senators Feingold, Bill Nelson, Cardin, and Lugar.
OPENING STATEMENT OF HON. RUSSELL D. FEINGOLD,
U.S. SENATOR FROM WISCONSIN
Senator Feingold. I would like to call the committee to
order.
Good morning, everybody. The hearing will come to order.
And on behalf of the Senate Foreign Relations Committee
Subcommittee on African Affairs, I welcome all of you to this
hearing on the Immediate and Underlying Causes and Consequences
of Kenya's Flawed Election.
I am honored to be joined in a little while, by my
colleague and the ranking member of this subcommittee, Senator
Sununu; and when he arrives, I'll invite him to make some
opening remarks.
By now we've all seen the gruesome photos and heard the
tragic stories of the brutal violence that has erupted
throughout Kenya. Hopes were high in the runup to that
country's fourth multiparty elections held on December 27, and
Kenyans actually turned out in record numbers to cast their
votes in the extremely close race between incumbent President
Mwai Kibaki, and the leader of the opposition Orange Democratic
Movement, Raila Odinga.
Excitement at advancing Kenya's democratic progress turned
sour when results were delayed. Then, when Kenya's Electoral
Commission declared Kibaki the victor and proceeded to
hurriedly swear him in 2 days later, that hope and excitement
turned to rage as the world watched the entire democratic
process begin to unravel and historical grievances gave way to
outbreaks of brutal violence that continue today.
With volatile neighbors like Somalia and Ethiopia and
Sudan, Kenya has often been considered relatively stable, and
even a model of democratic and economic development in the
region.
Although even before this crisis the country was not
without its problems, Kenya is an important partner for the
United States.
But the lack of progress in addressing a number of deep-
rooted problems, including political marginalization, land
disputes, and endemic corruption, appear to have taken a toll.
By many accounts, the situation in Kenya could still get
much worse, and is beginning to have negative repercussions
beyond its own borders. That is why it is essential that the
United States and wider international community devote the
necessary attention, assistance, and diplomatic pressure to
help pull Kenya from the brink of disaster, and bring that
country back to the path toward stability, democracy, and
development.
Given our strong relationship with Kenya, it's particularly
important that the administration act in a fair and balanced
manner that actively supports the people of Kenya and their
right to a government that truly represents them, and seeks to
address the fundamental grievances that have contributed to the
brutal violence. The administration cannot overlook or ignore
the complexities of this crisis; for doing so will only allow
them to fester and reemerge again in the future.
This hearing will explore both the short- and long-term
causes of the recent political and social unrest in Kenya, and
what must be done to address these problems, and how the United
States can contribute to these solutions.
In an attempt to present a balanced assessment of what has
gone wrong, and how to fix it, we have invited two panels of
distinguished witnesses, to focus on U.S. policy to date, and
how our Government can best support Kenya and international
stabilization efforts.
First we'll hear from Assistant Secretary of State Jendayi
Frazer, who just returned from Africa last night. We will also
hear testimony from Katherine Almquist, the Assistant
Administrator for Africa at the U.S. Agency for International
Development.
I've asked them to explain how the United States has sought
to strengthen democratic and judicial institutions, while also
consolidating the Kibaki government's commitment to good
governance. The subcommittee will be also interested to hear
how much, and what kind of, assistance the U.S. is prepared to
provide in both the immediate and long term.
A second panel of nongovernmental witnesses will offer
additional perspectives on the underlying causes of the recent
unrest, and the potential impact of these events throughout
Kenya and the region.
Mr. Christopher Albin-Lackey is a senior researcher for
Africa at Human Rights Watch and has just returned from a
research assessment of the human rights situation in Kenya, so
he has seen firsthand the human rights and humanitarian impact
of the post-election crisis.
Dr. Joel Barkan is professor emeritus of Political Science
at the University of Iowa, and a senior associate at the Center
for Strategic and International Studies here in Washington.
And finally, we will hear from David Mozersky, who--since
July 2006--has been the International Crisis Group's Horn of
Africa Project Director here in Washington, after working for
Crisis Group's Nairobi office for more than 4 years.
We're glad you're all here today, and we appreciate your
willingness to testify on this timely issue. Thank you, and
welcome. I look forward to your testimony and to our subsequent
discussion.
Before I turn to my colleagues for their opening comments,
I also want to briefly acknowledge the wide interest that
Kenyans have taken in this hearing. My office has received
numerous calls, visits, and faxes from Kenyans in the United
States, as well as in Kenya, who wanted to share their insights
into the current crisis.
At this time, I would like to ask that these formal
submissions we have received from some of these groups and
individuals be included in the official record of this hearing.
I think it's important to note the broad range and diverse
perspectives on the causes and solutions to the current crisis
in Kenya. And so, I will do so if there is no objection.
Without objection.
Finally, I want to offer my sincere welcome and
appreciation to the Kenyans in the audience this morning. I
know that some of you have traveled long distances to be here,
and that many of you are personally involved in what is going
on in your country, so I am grateful for your interest and
attendance.
Now, I'm very pleased to introduce the ranking member of
the full committee, who has been devoted to issues concerning
African nations throughout his career, Senator Lugar.
Senator Lugar. Well, thank you very much, Mr. Chairman. I
do not have an opening statement, but simply applaud the
timeliness of your calling and chairing this hearing. I look
forward, along with you, to hearing our distinguished
witnesses, and participating in the questions and answers with
them.
Thank you very much.
Senator Feingold. Thank you, Senator Lugar.
And Senator Ben Cardin, also a member of the subcommittee
and member of the full committee, obviously. Senator Cardin,
your opening remarks.
STATEMENT OF HON. BENJAMIN L. CARDIN, U.S. SENATOR FROM
MARYLAND
Senator Cardin. Thank you, Mr. Chairman, for conducting
this hearing. I do have an opening statement and I would ask
that it be made part of the record.
Just to make a brief comment--I think there was great hope
that the elections of 2007 would add to Kenya's progress toward
democracy. It was going to be a competitive election, and I
think we all were looking forward to the results of that
election. But, unfortunately, the elections were flawed. And
the violence that has taken place in that country, we need to
pay a great deal of attention to it.
But I would just urge us to look at ways in which we can
provide greater assistance to countries, to make sure that
their election process is not flawed. I think our monitoring
needs to be stronger, to try and prevent this type of
activities in countries that have too often led to violence.
You can't condone the violence that's taking place, and we need
to do everything we can to bring it to an end.
But, I do think we need to pay more attention to these
countries, and I look forward to the hearing.
[The prepared statement of Senator Cardin follows:]
Prepared Statement of Hon. Benjamin L. Cardin, U.S. Senator From
Maryland
Mr. Chairman, I thank you for holding this important and timely
hearing today on a topic that has captured the world's newspaper
headlines for the past month. The United States and the Republic of
Kenya have enjoyed well-developed longstanding relations and it is
important to our country to assist in returning peace to that nation.
The post-election violence in Kenya took many international
observers by surprise. However, when one recalls similar outbreaks of
civil war in Liberia and most recently the Ivory Coast, the seeds for
violent disruptions were planted some time ago.
The problem in Kenya, as with some other African states, is that
tremendous emphasis is placed on elections because the stakes are
usually very high for both winners and losers. Often, the hopes of
whether a nation conducts much needed reforms for economic growth or
political stability rests on the election of the appropriate
leadership.
Conversely, as is the case with Kenya, if an election is perceived
as continuing business as usual and stifles political and economic
reform and opportunity, a powder keg can be lit with devastating
consequences.
Mr. Chairman, the situation in Kenya did not have to turn out like
this. The 2007 elections began with great promise and transparency.
Several polls showed the opposition Orange Democratic Movement (ODM)
candidate, Raila Odinga, leading the incumbent Party for National Unity
(PNU) candidate, Mwai Kibaki. In fact, many of Mr. Kibaki's advisors
thought he was going to lose the December contest.
The parliamentary elections went smoothly and the ODM was able to
gain a majority of seats. However, the Presidential election was
seriously flawed and lacked transparency. While the ODM was leading in
most areas, the final ballot tabulation resulted in a victory for the
ruling PNU.
Electoral Commission of Kenya (ECK) Commissioners, ECK staff and
international election observers reported serious irregularities,
especially in vote tallying. The ECK hastily declared Mr. Kibaki as the
winner and less than an hour after this decision he was sworn in again
as President. The European Union observers said ``a lack of adequate
transparency and security measures in the process of relaying the
results from local to national level questioned the integrity of the
final result.'' Election observers from the East African Community also
raised concerns about the elections.
Mr. Chairman, unfortunately the initial response from the U.S.
State Department initially added to the confusion. The followup
response acknowledged discrepancies but failed to condemn a process
most Kenyans believed to be rigged. The U.S. finally commented that the
aggrieved parties to the elections should pursue legal remedies and
make their case publicly. This is the approach favored by Mr. Kibaki.
Perhaps the State Department truly underestimated the depth of
anger and frustration of the Kenyan people. Upon the outbreak of
violence, it appeared Assistant Secretary of State for Africa, Jendayi
Frazier, tried to get the two sides to agree to a political settlement.
This perspective failed to grasp the totality of the situation as the
Kenyan capital city and country side continued to burn.
Thankfully Mr. Chairman, two Ghanaians stepped into help mediate
the situation. First, African Union President John Kefir attempted to
broker dialogue between Mr. Kibaki and Mr. Odinga. Then, former United
Nations Secretary General Kofi Annan entered as mediator. Mr. Annan is
trying to broker a durable peace agreement that would allow
reconciliation talks to continue, end political violence and establish
a truth and reconciliation commission to explore electoral and other
inequities.
Approximately 1,000 people have died since the violence began in
late December 2007 and 500,000 people have been displaced. The Kenyan
economy, largely based on agriculture and tourism, is grinding to a
halt as goods can not get to the market place and tourists fear
entering Kenya.
Mr. Chairman, the United States must assist Mr. Annan's peace
efforts and apply pressure on the two Kenyan political parties to begin
working together to spread calm and cooperation throughout the land. To
do otherwise will be to drive Kenya to further violence with the
potential to spill over into an already violent and volatile region.
Senator Feingold. Thank you, Senator Cardin, for your
attendance, and participation.
And now we turn, with perfect timing, to Assistant
Secretary Frazer.
STATEMENT OF HON. JENDAYI FRAZER, ASSISTANT SECRETARY, BUREAU
OF AFRICAN AFFAIRS, DEPARTMENT OF STATE, WASHINGTON, DC
Ms. Frazer. Thank you, Chairman Feingold, and I apologize
for being late this morning.
Good morning, Mr. Chairman, Ranking Member Sununu, members
of the committee. While I'm always happy to come before you to
discuss Africa, this hearing comes at a tragic time for the
Kenyan people.
As requested by the committee, I've submitted for the
record a longer statement that outlines the current political
crisis and its underlying causes.
Before turning to your questions, I would like this morning
to briefly touch on the causes of the crisis, and to share our
views on the path that Kenya's leaders can take out of this
crisis, and how the United States can contribute to helping
Kenya move forward.
I ask that you accept the longer statement for the record.
Thank you.
While the immediate spark for the current situation is the
flawed Presidential election on December 27, there are also
deeper underlying causes of the violence and political turmoil
that are gripping Kenya. These causes include long-term social
and economic inequalities, concentration of power in the
executive branch, and weaknesses of critical institutions like
the judiciary and Parliament.
The international community supports Kofi Annan's mediation
as a way to resolving the electoral and political crises and to
start to address these more fundamental institutional and
socioeconomic problems in Kenya.
On the immediate crisis, even before the Electoral
Commission of Kenya, the ECK, announced Mwai Kibaki as the
winner of the Presidential election on December 30, violence
erupted in Kisumu, and after the announcement, interethnic
violence started, especially in the Rift Valley.
Most of the violence since then, has affected Nyanza and
Western Province, Central and Southern Rift Valley Province,
and areas of Nairobi.
The first type of violence that occurred was more
spontaneous, looting and violent protests, triggered
immediately before and right after the ECK announcement. We
cannot rule out that there was preorganization and an inquiry
into the violence is necessary to establish the facts.
This kind of violence has diminished, but can be triggered
anew by events on the ground, as demonstrated by a wave of
riots following the murders of opposition members of
Parliament, Melitus Were and David Too, on January 29 and 31.
There was also, immediately following the ECK announcement,
a pattern of organized violence, especially in the Rift Valley,
aimed at driving out Kikuyus from the area. We have also seen
troubling use of excessive force by police against civilians.
Finally, we more recently have witnessed the emergence of
retributive, community-based violence in reaction to earlier
ethic clashes. Evidence that the Mungiki criminal organization
is being reorganized as the Kikuyu militia for revenge against
non-Kikuyus, is a new dynamic that we cannot tolerate.
We are also gravely concerned about the reports of
increased incidents of sexual and gender-based violence, and
about the vulnerability of IDPs who have already been
victimized.
At this unprecedented and critical juncture in Kenya's
history, our top policy priority is to bring an immediate end
to the violence. The government and opposition leaders have the
responsibility to do everything in their power to stop this
violence.
The parties also need to negotiate in good faith, with
Annan's facilitation, to reach a political agreement that will
allow a measure of peace and economic stability to return to
Kenya, and to create a stable platform for addressing the
essential, longer term reform projects and interethnic
reconciliation.
Civil society and the business community have, so far,
largely played constructive roles in moving Kenya forward, and
their voices should be heard and respected. Our message to the
parties is consistent and strong--stop the violence and
negotiate in good faith toward a political solution. We are
also looking at a range of options against those who either
incite violence or are obstructive to the negotiation process.
There can be no impunity for inciting, supporting, or
participating in violence. Before this crisis, Kenya was on a
productive path toward an open, democratic society, as
evidenced by the 2002 Presidential elections and the 2005
constitutional reform. The Kenyan people want and deserve to
return to this path, and we will remain engaged at the highest
levels to help them get there.
The United States has many interests at stake, and will
remain active in helping the Kenyan people and their leaders to
resolve this crisis.
Thank you. I will be happy to take any questions you may
have.
[The prepared statement of Ms. Frazer follows:]
Prepared Statement of Hon. Jendayi E. Frazer, Assistant Secretary,
Bureau of African Affairs, Department of State, Washington, DC
INTRODUCTION
Good morning, Chairman Feingold, Ranking Member Sununu, and members
of the committee. Thank you for the opportunity to discuss with you the
current situation in Kenya. While I am always pleased to come before
you to discuss Africa, this is unfortunately a tragic time for the
Kenyan people. Before examining specific questions you may have, I'd
like to give you an overview of U.S. Government interests in Kenya. I
will then brief you on the background of the current situation in
Kenya, particularly the underlying causes of the recent violence and
political and social unrest. Finally, I would like to share with you
U.S. views on elements that we believe Kenya's leaders may wish to
consider as they seek a resolution to this crisis, and how the United
States can contribute to such a resolution.
U.S. GOVERNMENT INTERESTS IN KENYA
The United States has long had a close and productive relationship
with Kenya, and we value this partnership highly. Our main interests in
Kenya include promoting democracy and good governance; supporting
Kenya's economic development; maintaining its role as a stable partner
and contributor to peace and security; and expanding regional
counterterrorism cooperation. Kenya functions as a platform for U.S.
programs elsewhere in the region (for example, it hosts USAID's
regional program in East and Central Africa, which covers 16
countries). Food aid for seven other countries transits Kenya. It is
also a regional center for trade, investment, and tourism.
BACKGROUND AND UPDATE ON ELECTIONS
Kenya gained its independence from the United Kingdom in 1963, but
did not hold its first multiparty elections until 1992. Former
President Daniel arap Moi served from 1978 to 2002. Although Moi began
his tenure as the authoritarian leader of a single-party state, he was
in power during Kenya's transformation to a multiparty, pluralistic,
and far more democratic nation.
Kenya's extensive, sophisticated civil society that is so active
today in insisting on transparency and respect for democratic rights
grew in confidence and resolve in the 1990s, in part because of the
role it played fighting for an expansion of political space. Activists
challenged the government in court, scholarly investigators criticized
centralized government, and journalists competed to report such
information. To be sure, the path was not smooth and setbacks were
common. Still, the trajectory was clear and upward. Kenya was a society
that was maturing politically.
In both 1992 and 1997, ethnic violence flared in many areas of
Kenya during the campaign and electoral process. It has also flared
independently of the electoral cycle, particularly around questions of
land ownership. In 2002, President Moi was constitutionally barred from
running for reelection and President Mwai Kibaki was elected in what
are largely regarded as Kenya's first free and fair multiparty
elections. The 2002 elections were generally peaceful, although some
isolated incidents of violence did occur. Following the advent of
multiparty elections in 1992, Kenya was on a path toward increasingly
credible and competitive elections. Between 2002 and 2007, Kenya
experienced an even greater increase in the growth of independent civil
society and in freedom of the press. Regardless of the outcome of the
current political crisis, we expect civil society to continue to play a
vital role in Kenya.
On December 27, 2007, Kenya held Presidential, parliamentary, and
local government elections. More than 2,500 candidates contested for
210 parliamentary seats. The parliamentary elections in most
constituencies were judged to be credible by local and international
observers. Similarly, few problems were reported with local government
elections. There were nine candidates for President, although only
three (President Kibaki of the Party of National Unity (PNU), Raila
Odinga of the Orange Democratic Movement (ODM), and Kalonzo Musyoka of
the Orange Democratic Movement-Kenya (ODM-K)) were considered serious
contenders, and Musyoka trailed far behind the two leading candidates.
The campaign season in Kenya is short, with the most intense
activity during the last 3 months before the election. Overall, the
2007 campaign was peaceful and orderly. Both the incumbent PNU party
and Odinga's ODM held peaceful campaign rallies throughout the country,
including rallies in Nairobi's Uhuru Park at which more than 200,000
people attended. We monitored the press closely during the campaign,
and noted some inflammatory campaign statements disseminated primarily
by cell phone text messages. There were some minor incidents of
violence between supporters of different parties. Several female
candidates were attacked in incidents that appeared to be politically
motivated and resulted in serious injuries. Ambassador Ranneberger
spoke out strongly and immediately against these incidents of gender
violence, and visited one of the victims in the hospital. Prior to
Election Day, Secretary of State Rice made calls to the two main
candidates to urge them to call on their supporters to participate
peacefully and to honor the results of the election.
Kenyans turned out in large number to vote (turnout was over 70
percent nationwide), and the voting itself was generally peaceful.
International and domestic observers concur that balloting and tallying
at local polling stations appeared to meet international standards,
although there were constituencies in both ODM and PNU areas where
rival parties were not able to observe due to intimidation and one case
in Nyanza where a PNU observer was killed. Once votes were counted at
the polling station level, the ballots and results were sent to the
constituency tallying center. The reporting officer for the
constituency then tabulated the results and transmitted them to the
national tallying center in Nairobi. At the national center (located at
the Kenya International Conference Center), officials of the Electoral
Commission of Kenya (ECK) tabulated and announced constituency results.
The consensus among observers is that irregularities likely occurred
primarily at the national level. There were also concerns about
tallying irregularities at the constituency level, and about long
delays in transferring reporting documents to the national center. As
late-reporting constituency results were announced by the ECK, Kibaki
pulled ahead. Unfortunately, due to loss of reliable custody of
election documents and the destruction of most physical ballots, it is
now impossible to determine who would have won the Presidential
election in the absence of these irregularities.
Before and after the ECK announced Kibaki as the winner of the
Presidential election on December 30, violence erupted at several
places around the country, primarily in Rift Valley province, western
Kenya, and poor suburbs of Nairobi. To date, an estimated 900 people
have died and some 250,000 have been internally displaced as a result
of post-election violence and intimidation.
UNDERLYING CAUSES OF KENYA'S CRISIS
While sparked by the irregularities in the vote tabulation, the
current crisis is rooted in long-term social and economic inequalities,
some of which have their origins in the colonial era. Kenya is a
multiethnic society, with 42 distinct ethnic groups. At 22 percent of
the population, the Kikuyus are Kenya's largest and most geographically
dispersed ethnic group. Jomo Kenyatta, an ethnic Kikuyu, became the
first post-independence President of Kenya. Since the days of Kenyatta,
Kikuyus have been perceived by many Kenyans to dominate business, civil
service, military leadership, the judiciary and higher education. This
perception of overrepresentation of Kikuyus in positions of power has
been a long-term festering issue in Kenya.
Kenya's Constitution concentrates most power in the executive
branch. The Kenyan Constitution provides that electoral disputes should
be determined by the courts. However, the opposition's perception that
the courts are biased undermines the judiciary's ability to fulfill its
constitutionally mandated role. Parliament is vulnerable to executive
veto, and legislators have not generally opposed Presidential
initiatives. The Parliament is made up of 210 elected legislators and
12 more nominated by the President and the opposition. Its ability to
influence policy is limited by the strong executive authority of the
President. The President decides when to convene Parliament and when to
dissolve it, and only has to call it into session once a year.
Parliament does have significant control of Kenya's budget. Parliament
can vote a no-confidence motion against the President, but this step
requires a two-thirds majority. As it stands now, neither the
legislature nor the judiciary effectively balance executive power.
Kenya's Central government has not adequately focused on equitable
distribution of resources or devolution of power and funds to local
authorities. In 2003, President Kibaki created the Constituency
Development Fund (CDF) in an attempt to address inequitable resource
flows. The CDF allocates funding from the treasury to each of Kenya's
210 constituencies for infrastructure and development projects
sponsored by local leaders.
Despite deep-seated political issues, Kenyan civil society has
established itself as a vibrant vehicle for the expression of popular
will and a means to redress political grievances. Many leading figures
in civil society accepted posts in Kibaki's government in 2003, so a
new generation of civil society activists emerged and are continuing to
build their capacity with assistance from the United States and other
donors. Kenya's remarkable economic growth and its social and political
stability since independence have also contributed to Kenya's
exceptional international stature and regional leadership. However,
events since the election have crystallized why fundamental issues must
be addressed if Kenya's demonstrated promise is to be realized.
BEHIND THE VIOLENCE
I would like to turn to a question that is on the minds of everyone
who cares about Kenya: What is behind the violence, and how can we stop
it?
From December 29 on, Kenya has experienced violence primarily in
Nyanza and Western provinces, Central and Southern Rift Valley
province, and the poorer suburbs of Nairobi. An initial wave of
violence arose from disorganized spontaneous protests before and in the
immediate wake of the ECK announcement of President Kibaki's victory.
These protests were accompanied by violence, including looting, arson,
extortion, intimidation, and rape. The violence that occurred right
before and the first few days after the election results announcement
has diminished, but continues to spike from time to time. For example,
the January 29 murder of Nairobi-area Member of Parliament, Merlitus
Were (ODM), touched off riots in his constituency, and the January 31
murder of ODM Member of Parliament of Ainamoi (Kericho District), David
Kimutai Too (a Kalenjin), led to worrisome new violence. There has also
been a pattern of organized violence aimed at driving out Kikuyus from
Kalenjin areas. We have also seen excessive force used by police
against civilians especially in Kisumu. Another troubling development
has been the recent emergence of retributive, community-based violence
in reaction to earlier ethnic clashes. Since this crisis emerged, we
have insisted to all parties in Kenya that violence must stop. Strong
statements to this effect have been issued by the President, the
Secretary of State, Assistant Secretary Frazer, and our Ambassador in
Kenya, Ambassador Ranneberger, which condemn all violence, call on
opinion leaders to urge their supporters to remain calm, and insist
that Kenyan police maintain public safety and refrain from excessive
force. Ambassador Ranneberger has registered our grave concern with the
Minister of Internal Security regarding excessive use of force by
police and death threats against human rights defenders.
Any internationally acceptable solution to the current crisis
should acknowledge that Kenyans have the right to own land anywhere in
the country regardless of their ethnicity, and it must also ensure that
all groups are confident that they are adequately represented and
fairly treated by their government. As events in the Rift Valley show,
a stronger and more representative Parliament and judiciary, and land
tenure reforms are critical to end the current crises and prevent
future ones.
WHAT IS BEING DONE AND THE U.S. ROLE
It is apparent that Kenya is at an unprecedented juncture in its
history. As a longtime friend and partner of Kenya, our top priority is
to help bring an end to the terrible violence that I have described.
Kibaki, Odinga, and other political leaders all have a responsibility
to stop the violence, and we expect them to live up to this
responsibility. We are also encouraged by and support the role of civil
society in peace-building and interethnic reconciliation. Second,
Kibaki and Odinga need to reach a political agreement that will allow
the country to move forward and create a platform for addressing
critical longer term institutional reforms and political
reconciliation.
Stability in Kenya requires immediate action from both Kibaki and
Odinga. The President and his party must offer real access to power and
authority to the opposition. Raila Odinga and his party must seriously
seek a compromise arrangement that will achieve real reconciliation.
Both sides must make every effort to end violence perpetrated in their
names. Power sharing is an essential element to a viable short-term
solution for Kenya. Kenyans themselves must determine the precise
framework for an effective political resolution, but it is apparent
that it must include constitutional reform, land reform, and reforms of
the electoral commission, police, and judiciary.
Some Kenyans and other advocates in civil society and elsewhere
have called for a vote recount and new elections. For the reasons I
discussed earlier--many of the original ballots and documents were
destroyed or altered, and/or the ECK did not maintain adequate physical
custody of sensitive documents--we do not believe an accurate recount
is possible. However, an impartial investigation into the nature of
electoral irregularities might help to restore the faith of the Kenyan
people in the democratic process. We believe that the focus should
remain on the Annan mediation effort that includes addressing the
political crisis resulting from the elections. New elections should not
be considered before the ECK is reformed and enjoys broad credibility.
We are also looking at the range of options we could bring to bear
against those who incite violence. These options should include an
impartial and independent investigation to ascertain individual
responsibility, and future accountability to ensure impunity does not
prevail. A strong message of accountability, delivered now, will help
to deter additional violence. Political reconciliation must be a Kenyan
effort, but we and the international community will provide strong
support. We continue to work closely with our partners in the
international community, including the AU, U.K., EU, and individual EU
member states, to support former U.N. Secretary General Kofi Annan's
efforts to facilitate an end to this crisis. On our part, we have made
it clear that there will be ``no business as usual'' with Kenya until
there is a real, concerted effort by both the Kenyan Government and its
opposition to resolve the issues which generated this tragedy.
CONCLUSION
The Kenya we saw before this crisis. emerged had made great
progress on the path to democracy, development, and regional
leadership. Kenyans want and deserve to return to this path. The United
States will remain engaged at the highest levels to support resolution
of this crisis.
Senator Feingold. Thank you.
Ms. Almquist.
STATEMENT OF KATHERINE J. ALMQUIST, ASSISTANT ADMINISTRATOR,
BUREAU FOR AFRICA, U.S. AGENCY FOR INTERNATIONAL DEVELOPMENT,
WASHINGTON, DC
Ms. Almquist. Chairman Feingold and members of the
committee, thank you for the opportunity to appear before you
today. I would like to submit written testimony for the record
on the contributions that the U.S. Agency for International
Development has made toward strengthening democracy in Kenya,
including the support we provided during the runup to the
December 27 elections; our perspective on the current post-
electoral crisis and efforts to address it; and next steps for
USAID in Kenya.
I will summarize some of the key points now, thank you.
Unrest in Kenya, of course, not only threatens the well-
being of Kenyans, but also humanitarian and commercial
operations throughout the entire region, potentially affecting
more than 100 million lives, according to some analysts.
Neighboring countries are experiencing shortages of fuel and
other essential supplies, due to insecurity along the Kenyan
section of the Northern Corridor, one of the most important
transport routes in Africa. Addressing conflict in Kenya,
therefore, will be critical to the stability and health of the
entire region.
The events since December 27 have largely undermined many
of the gains that Kenya had made in consolidating its fragile
democratic system since it held its first fully democratic and
free and fair elections in 2002. Kenya's long-term challenge
with respect to democracy has been to reorient the political
system away from its focus on powerful individuals--
specifically whoever happens to be President--and concentrate
instead on three key tasks: Developing effective and
accountable governance institutions that are flexible enough to
represent Kenya's diverse society; creating a set of fair,
equitable rules by which political processes can be governed
and fostering respect for the rule of law; and providing ample
political freedom for civic organizations, the media and
ordinary citizens to express and organize themselves peacefully
and monitor the performance of their government.
We agree with most Kenyans that their Constitution is
outdated and needs to be revised to reflect the needs for
greater power-sharing. The current standoff on the subject of
constitutional reform stems in part from the inability of
Kenya's political class to reach a consensus on how to
deconcentrate power and create a more democratic system of
checks and balances.
USAID's democracy program in Kenya is one of our most
mature development programs in Africa, with economic
cooperation going back as far as the late 1950s and early
1960s. The overarching goal of the program is to build a
democratic and economically prosperous country by assisting it
to improve the balance of power among institutions of
governance, promote the sustainable use of its natural
resources, and improve rural incomes.
USAID programs also improve health conditions, provide
access to quality education for children of historically
marginalized populations, and promote trade and investment
programs.
In fiscal year 2007, the United States provided over $500
million in assistance to Kenya and will do the same in fiscal
year 2008.
USAID has been pursuing a modestly funded, albeit carefully
targeted, democracy and governance program in Kenya of about $5
million a year. Our program has worked to increase the
transparency and effectiveness of Government of Kenya
institutions; promote more transparent and competitive
political processes; and increase the capacity of civil society
organizations to lobby for reforms, monitor government
activities and prevent and resolve conflict.
We do this both with the Government of Kenya and
nongovernmental organizations, in close collaboration with
other donors and under the leadership of the U.S. Ambassador to
Kenya.
In the testimony I have submitted for the record, I provide
substantial detail on these programs. Therefore, I would like
to highlight just two of them now--legislative strengthening,
and political competition and consensus-building.
The goal of our work in legislative strengthening is to
improve the effectiveness of Kenya's Parliament. To achieve
this objective, we work through our partner, the State
University of New York, to strengthen key parliamentary
committees. Program activities contribute to improving
Parliament's oversight of the national budget and corruption-
related issues. The focus of USAID support is the departmental
communities that shadow government ministries, address budget
issues, and play watchdog roles.
Our elections and political processes program was part of a
multidonor effort to help Kenya set the stage for credible
Presidential, parliamentary and local elections in 2007.
Developing the capacity of the Electoral Commission of Kenya
(ECK) was central to our efforts. The International Foundation
for Election Systems or ``IFES'' had been providing assistance
to the ECK since late 2001, but our support through IFES has
now ended.
Activities focused on providing appropriate technology for
more efficient and transparent elections administration, while
improving the skills--the technical skills of the ECK staff.
We also channeled funding through the Joint Donor Elections
Assistance Program, managed by the United Nations Development
Program. This program focused on increasing the efficiency and
professional management of the electoral process; enhancing
information available to voters; increasing citizens' knowledge
of the electoral process; improving the accuracy of media
reporting on electoral issues; reducing incidences of electoral
violence; and enhancing the effectiveness of domestic
observation.
Other contributions in this area included political party
strengthening and opinion polling. We also contributed to the
deployment of resident observers and a high-profile
international observation delegation to undertake an impartial
and independent assessment of the conduct of the elections, as
part of a broader international observation effort.
Our support for the recent elections in Kenya was an
integrated program, and notable achievements were realized.
These achievements are easy to identify when the results of the
parliamentary elections are isolated from those of the
Presidential election.
The parliamentary elections truly reflected the will of the
Kenyan electorate, and evidence of such concludes that 70
percent of incumbent Members of Parliament were overturned in
their reelection bids, and those elections were largely
perceived not to have significant issues.
Voter registration for the elections exceeded expectations,
with more than 1 million new voters registered in 2007 alone.
Yet, when we look at what happened with the final vote tally
for the Presidential elections, these positive achievements are
overshadowed.
You have asked what must be done to address the problems
Kenya is now facing and how the United States can contribute to
these solutions. Let me describe for you our current thinking.
We are conducting a careful review of our existing programs
in Kenya to decide how we might redirect resources to address
these newly identified needs. For most of these priorities, we
have existing programs in place that can absorb additional
funding, and thus our implementation efforts should proceed
fairly quickly.
First, we believe it is imperative to increase our
democracy and governance programs, and I anticipate that we
will be able to double this program shortly. We are in the
middle of a number of funding decisions, and I expect that we
can identify additional resources very quickly to support the
team in Nairobi.
It is generally recognized by Kenyans across the political
spectrum that constitutional and electoral reforms are
essential to address the issues that have arisen from the
elections crisis.
We have plans to support a number of initiatives in the
area of the failure of the Electoral Commission to carry out a
transparent and accountable process; and the need for
constitutional reform to address underlying grievances,
including the need to limit power of the executive, strengthen
the legislature, reform the judiciary and address land reform.
In particular, Parliament has been critically important,
and will be critically important, to achieving a political
solution. We have plans to support the new Speaker of
Parliament, in addition to our ongoing parliamentary
strengthening program, and will be working with our team in
Nairobi to provide resources for increasing political dialogue
in the forum that Parliament can provide for national
reconciliation.
Civil society has also coalesced with impressive efforts to
promote dialogue and national reconciliation across ethnic and
party lines, and providing support to several key umbrella
groups will strengthen their efforts to promote dialogue and
build pressure for a political solution.
These groups will need resources to pull people together
through specific dialogue and reconciliation programs, and we
have a number of plans in place to support these initiatives.
Second, beyond the immediate humanitarian impact, the post-
election crisis has significantly impacted people's income-
generating activities, and resulted in substantial livelihood
and asset losses. The World Bank has estimated that up to 2
million Kenyans may be driven into poverty from the effects of
violence and political upheaval following the disputed election
results.
It will be critical, therefore, to help restore the
livelihoods of many households in Kenya that have been forced
to abandon their farms, small businesses, and other means of
livelihood. We are planning to support activities that will
provide seeds and other agricultural inputs and tools, rebuild
grain warehouses, extend seed capital for reengagement in other
income-generating activities.
Third, since longstanding issues about land tenure were
among the factors fueling the crisis in western Kenya, we
believe that supporting reform relating to land tenure and
property rights will be critical. There is a compelling need
for land reform, leading to the security and regularization of
tenure and property rights. A draft national land policy and
related implementation plan are already in place, and there has
been broad consensus among Kenyans that this draft national
land policy reflects national sentiment.
USAID is already a partner in the land sector, and we
anticipate increasing our assistance in this regard.
Let me now turn briefly to the humanitarian situation. My
colleague, Deputy Assistant Administrator for Democracy,
Conflict and Humanitarian Assistance, Greg Gottlieb, testified
yesterday before the House Foreign Affairs Committee on the
humanitarian situation in Kenya. We have copies of his
testimony for those wishing to have a more in-depth report, and
I would also ask if it is acceptable to the committee that his
testimony be submitted for the record, as well.
In brief, the situation in Kenya is extremely fluid. USAID
has responded to this situation with more than $5.2 million in
emergency humanitarian assistance. Thus far, immediate
priorities for this assistance have included protection, water
and sanitation, health, shelter, and camp management
interventions, targeting displaced population in stressed host
communities in areas of Nairobi and western Kenya.
I am happy to provide additional information on the
humanitarian situation in Q&A if that would be of interest.
Mr. Chairman, and members, USAID is actively engaged in
reviewing how we can further redirect our existing programs,
and identify additional resources to meet the more critical
needs, following this post-election crisis. And we look forward
to continued opportunities to keep you informed on our efforts
in this regard.
Thank you.
[The prepared statement of Ms. Almquist follows:]
Prepared Statement of Katherine J. Almquist, Assistant Administrator
for Africa, U.S. Agency for International Development, Washington, DC
Chairman Feingold, Ranking Member Sununu, and other members of the
committee, I appreciate the opportunity to appear before you today to
discuss the contributions that the U.S. Agency for International
Development (USAID) has made to date toward strengthening democracy in
Kenya, including the support we provided during the runup to the
December 27 elections; our perspective on the current post-electoral
crisis and efforts to address it, and next steps for USAID in Kenya. My
testimony builds on the analysis that Deputy Assistant Secretary for
African Affairs Jim Swan has provided on the short and longer term
causes of the recent political and social unrest in Kenya.
Before I address your questions about the post-electoral situation
and what must be done to address the problems Kenya is facing, I would
like to take a few minutes to share with you the assessment of the
state of democracy in Kenya upon which our programs have been based, as
well as some specifics about our efforts to strengthen democratic and
judicial institutions in Kenya. First, the assessment.
assessment of state of democracy and equality in kenya
When we developed our last multiyear strategy for Kenya in 2005, we
assessed that the country's democratic promise had been tarnished by
the reality that personal rule within the executive continued to
eclipse the rule of law. The rise of personal rule began during the
tenure of Jomo Kenyatta, the first President, with the dismantling of
the preindependence constitution, its protections for minorities, and
its institutional checks and balances. This paved the way for abuse of
executive power and privilege that has tended to reinforce ethnic
divisions by giving unfair advantage of opportunities to selected
ethnic groups. While there is agreement that constitutional reforms are
necessary in Kenya, there is no clear consensus on the ideal
institutional arrangement for the country. This was demonstrated during
the referendum of November 2005, when a majority of Kenyans voted
against a government-supported draft constitution. The proposed
constitution would have improved protections for individual rights,
while maintaining a high degree of executive control with minimal
devolution of authority.
Further exacerbating the governance climate in Kenya is a system of
public administration that is slow, ineffective, inefficient, and less
than transparent. These factors result in implementation delays,
financial leakages, misallocation of resources, and difficulty in
ensuring that the Kenyan taxpayer receives good value for money. The
lack of strong management systems also facilitates corruption, which is
endemic both at the national level and at the level where the average
citizen interacts with local regulatory authorities and services
providers.
The events since December 27 have largely undermined many of the
gains that Kenya had made in consolidating its fragile democratic
system since it held its first fully democratic and free and fair
elections in 2002. The 2002 elections marked the end of the 24-year
rule of President Moi. Kenya's long-term challenge with respect to
democracy has been to reorient the political system away from its focus
on powerful individuals--specifically whoever happens to be President,
his power brokers and advisors--and concentrate instead on three key
tasks:
Developing effective and accountable governance institutions
that are flexible enough to represent Kenya's diverse society;
Creating a set of fair, equitable rules by which political
processes can be governed and fostering respect for the rule of
law, both of which are essential to allowing institutions of
government to interact in a way that represents the common
interests of the Kenyan people, rather than the interests of
the powerful few; and
Providing ample political freedom for civic organizations,
the media, and ordinary citizens to express and organize
themselves peacefully and monitor the performance of their
government.
We agree with most Kenyans that their Constitution is outdated and
needs to be revised to reflect the need for greater power sharing. The
current standoff on the subject of constitutional reform stems in part
from the inability of Kenya's political class to reach a consensus on
how to deconcentrate power and create a more democratic system of
checks and balances.
Let me turn now to the question of what USAID has been doing, based
on this assessment, to strengthen democratic and judicial institutions
in Kenya and to consolidate the Kibaki government's commitment to the
principles of free elections, rule of law and human rights.
USAID'S DEMOCRACY AND GOVERNANCE PROGRAMS IN KENYA
USAID democracy program in Kenya is part of one of our most mature
development programs in Africa, with economic cooperation going as far
back as the country's preindependence days in the late 1950s and early
1960s. We have a substantial overall program in Kenya, as it is the
linchpin for trade and economic development throughout East and
Southern Africa. The overarching goal of USAID assistance is to build a
democratic and economically prosperous Kenya by assisting the country
to improve the balance of power among its institutions of governance,
promoting the sustainable use of its natural resources, and improving
rural incomes by increasing agricultural and rural enterprise
opportunities. USAID assistance is also used to improve health
conditions, provide access to quality education for children of
historically marginalized populations, and promote trade and investment
development programs. In FY 2007, the U.S. Government provided over
$500 million in assistance to Kenya, of which $368 million was PEPFAR
funds.
USAID has been pursuing a modestly funded, albeit carefully
targeted democracy and governance program in Kenya of about $5 million
a year. Our program has worked to increase the transparency and
effectiveness of Government of Kenya institutions; promote more
transparent and competitive political processes; and increase the
capacity of civil society organizations to lobby for reforms, monitor
government activities, and prevent and resolve conflict. We do this
both with Government of Kenya and nongovernmental organizations, in
close collaboration with other international development partners and
under the leadership of the U.S. Ambassador to Kenya, in four principal
areas: Good Governance, Civil Society, Conflict Mitigation and
Reconciliation, and Political Competition and Consensus-Building. Let
me describe some of the key components of these programs.
Good Governance
Our work in good governance emphasizes two critical areas:
Legislative function and processes, and anticorruption reforms.
The goal of USAID support in the first area is to improve the
effectiveness of Kenya's Parliament. To achieve this objective, we work
through our partner, the State University of New York (SUNY), to
strengthen the Parliamentary Service Commission and key parliamentary
committees. Program activities contribute to a more open and
participatory budget process and to improving Parliament's oversight of
the national budget and corruption-related issues. The focus of USAID
support is the Departmental Committees that shadow government
ministries, address budget issues, and play watchdog roles. This
approach also allows USAID to target the committees addressing the
policy issues critical to achieving the overall USG strategy. USAID is
also working in close collaboration with the U.S. Congressional House
Democracy Assistance Commission. The House Democracy Assistance
Commission program complements and strengthens our ongoing assistance
to the parliamentary committees.
Anticorruption activities include support for both nongovernmental
and governmental efforts to enhance citizens' engagement in
anticorruption reforms and to strengthen the government's capacity to
deliver on its anticorruption reform pledges. Working with civil
society, the program promotes greater public awareness of corruption
issues, improves access to information regarding government processes,
and increases demand for reform. In collaboration with public sector
institutions, the program strengthens enforcement and oversight units
such as the Department of Public Prosecutions, the Judicial Service
Commission, and the parliamentary watchdog committees. To
professionalize the Department of Public Prosecutions, USAID supports
specialized training for the prosecutors assigned to the Department's
Anti-Corruption, Economic Crime, Serious Fraud, and Asset Forfeiture
Units. Support to the Judicial Service Commission underwrites the
establishment of a Secretariat whose mandate encompasses the promotion
of ethics and integrity within the Judiciary, including oversight of
Judges' and Magistrates' appointments, promotions, and disciplinary
actions. USAID support to both the Department of Public Prosecutions
and the Judicial Service Commission contributes to the GOK's
Governance, Justice, Law, and Order Sector reform program.
USAID also supports the GOK's Public Financial Management reform
program, concentrating on closing loopholes and increasing transparency
in the public procurement system by providing technical assistance to
finalize the new procurement regulations. Activities in this Program
Area are closely coordinated with the 2-year MCA Threshold Program
administered by USAID that supports the newly established Public
Procurement Oversight Authority to implement the GOK's new procurement
regulations, launch e-procurement procedures, and pilot the procurement
reforms in the health sector.
Civil Society
Under this program component, USAID supports civil society
organizations to advocate for policy and legislative reforms as well as
to monitor GOK performance. Civil society organizations conduct legal
and policy analysis to inform their advocacy issues, including
anticorruption, access to information, procurement reforms,
privatization, and gender equality. Civil society organizations also
assist in drafting and overseeing the implementation of key
legislation. Examples include the Freedom of Information Bill, the
Public Officers' Ethics Act, the Public Procurement and Disposal Act,
the Sexual Offenses Act, and the Political Financing Act. To support
such legislation, civil society organizations also pursue ongoing
consultations with Members of Parliament, key government agencies,
relevant private sector stakeholders, other civil society organizations
and citizens. In response to a marked decrease in civil society
capacity since 2003 that occurred when many senior civil society
advocates took positions in the Kibaki administration, USAID, through
its partner Pact Inc., is deepening and intensifying support to civil
society by offering more grants to local organizations, expanding the
range of eligible partners to include more private sector groups,
professional organizations, and membership organizations, and providing
more targeted and frequent training and technical assistance to improve
civil society organizations' leadership, advocacy, networking, and
management capacity.
Conflict Mitigation and Reconciliation
USAID is also active in promoting conflict mitigation in conflict-
prone parts of Kenya, particularly the marginalized northeastern
province and parts of coast province. For example, we have implemented
a program to raise the national profile of these regions and support
mediation, negotiations and peace-building interventions at the local
level; and we support the efforts led by the Government of Kenya to
develop a comprehensive national policy on conflict management and
peace building. This bilateral program is reinforced by associated
cross-border efforts managed by our regional mission for East Africa,
based in Nairobi; and by specific interventions to increase government
services in those marginalized areas through our education and health
programs. We are about to commence a special program, funded under
section 1207 authorities, which will continue focus on border areas and
marginalized groups prone to extremist influences. In the border areas
with Somalia, we work closely with other agencies in a 3-D approach of
democracy, defense, and development.
The post-election reality in Kenya in which conflict is flaring up
in many other parts of the country, particularly the Rift Valley, will
clearly require us to examine how we can expand these efforts to
address the underlying drivers of post-electoral violence, among which
are clearly longstanding grievances about unequal access to power and
resources. I will mention some of our plans going forward in a moment,
but first want to describe the final area of our democracy and
governance program in Kenya--one that is central to this current
crisis.
Political Competition and Consensus-Building
Under this component, our democracy and governance team
concentrates support in two key areas: Elections and political
processes, and political parties.
Kenya does not have a long tradition of multiparty elections. Our
current democracy and governance program was part of a multidonor
effort to help Kenya set the stage for credible Presidential,
parliamentary, and local elections in 2007. Developing the capacity of
the Electoral Commission of Kenya (ECK) was central to USAID's
electoral program. IFES--formerly known as the International Foundation
for Election Systems but now just as ``IFES''--had been providing
support to the ECK since late 2001, but our support through IFES has
now ended. Activities focused on providing appropriate technology for
more efficient and transparent elections administration while improving
the skills of the ECK technical staff. Additional USAID funding was
channeled through the 2007 Joint Donor Elections Assistance Program
managed by the United National Development Program (UNDP). The overall
goal of this program was to contribute to the achievement of free and
fair Presidential and parliamentary elections in Kenya. The program
focused on: Increasing the efficiency and professional management of
the electoral process; enhancing information available to voters
empowering them to make informed choices; increasing citizens'
knowledge of the electoral process; improving the accuracy of media
reporting on electoral issues; reducing incidences of electoral
violence; and enhancing the effectiveness of domestic observation.
Other contributions in this area were channeled through the
National Democratic Institute and the International Republican
Institute for political parties strengthening and opinion polling,
respectively. The political parties program focused on: Promoting
coalition and consensus building; support to the development of
parties' policies and programs; and mainstreaming women and youth
agendas in political parties. The opinion polling program focused on
improving the quality of the polling data and advancing the use of
reliable data to inform policy decisions and advocacy efforts. Finally,
we contributed to the deployment of resident observers and a high-
profile international observation delegation to undertake an impartial
and independent assessment of the conduct of the elections, as part of
a broader international observation effort.
In the runup to the elections, we also sponsored highly successful,
civil society efforts to encourage the active participation of young
voters, and to encourage a peaceful voting day.
Before moving on to some of the subcommittee's other questions, let
me take a moment to reflect on some of the impacts of our electoral
assistance program and some of our lessons learned.
Our support for the recent elections in Kenya was an integrated
program and notable achievements were realized. The achievements are
easy to identify when the results of the parliamentary elections are
isolated from those of the Presidential election. The parliamentary
elections truly reflected the will of the Kenyan electorate and
evidence of such includes:
21 Cabinet Ministers lost their seats;
70 percent of incumbent Members of Parliament failed in
their reelection bids;
A record number of women were elected;
Voter registration exceeded expectations, with more than 1
million new voters registering in 2007 alone;
The highest voter turnout in Kenyan history, particularly
among youth;
Voters were more educated, not only on how to vote, but on
the actual campaign issues. This was the first time any
significant issues-based campaign platforms were widely
available and discussed. [N.B. This is based on substantial
anecdotal evidence; however, a formal evaluation has not been
conducted.];
Election Day was peaceful, some individuals waited patiently
for long periods (in excess of 8 hours) to vote; and
No international or domestic observers expressed concerns
over the parliamentary elections.
Yet, when we look at what happened with the final vote tally for
the Presidential elections, these positive achievements are
overshadowed.
We believe in the main that our electoral programs in Kenya were
well-designed and targeted, but that weaknesses inherent in the
structure and staffing of the Electoral Commission, in particular,
caused some of the assistance we and other donors provided to that body
to fail to make the intended impact. We feel we made the right choice
in focusing our assistance on strengthening the ECK's ability to
administer the elections; the record high voter registration and
turnout as well as the absence of serious procedural problems during
most of the process are proof that much went well. It is disappointing,
and indeed tragic, however, that the ECK ultimately failed the Kenyan
people by obscuring the final vote count for the Presidential election.
WHAT MUST BE DONE: NEXT STEPS FOR USAID
You have asked what must be done to address the problems Kenya is
now facing and how the United States can contribute to these solutions.
Let me describe for you our preliminary thinking, based on
recommendations from the U.S. mission in Nairobi. To determine the
feasibility of moving forward on these recommendations, we have been
conducting a careful review of our existing programs in Kenya to decide
how we might redirect resources to address these newly identified and
critical needs. For most of these priorities, we have existing programs
in place that can absorb additional funding and thus startup would be
relatively quick.
First, we believe it is imperative to increase our democracy and
governance programs. It is generally recognized by Kenyans across the
political spectrum that constitutional and electoral reforms are
essential to address the issues that have arisen from the elections
crisis. These include the failure of the Electoral Commission to carry
out a transparent and accountable process, and the need for
constitutional reform to address the underlying grievances revealed in
the crisis--including the need to limit power of the executive,
strengthen the legislature, reform the judiciary, and address land
reform, among other issues.
Among the activities we plan to fund are the following:
Support to and awareness-raising about possible political
solutions currently under mediation.
Monitoring and reporting on the implementation of any
political settlement to the electoral crisis, and holding
parties accountable to the agreement.
Research, dissemination, and policy advocacy by Kenyan civil
society for national dialogue and constitutional reform
regarding the underlying issues propelling the current crisis--
for example, devolution of authority, executive authority,
electoral reform and land policy.
Post-election assessment to document the events leading up
to and after the elections and to garner lessons learned from
the electoral process.
Public opinion polling to monitor citizen perceptions of the
key issues, the commitment of the contentious parties to
resolve the crisis, and progress toward a sustainable political
settlement.
Parliament has emerged as critically important to achieving a
political solution. With the ODM having elected the speaker and with
the Parliament almost evenly divided, the Parliament is a forum for
dialogue and for forcing cooperation between the two sides. The new
speaker is an impressive political figure who is working to achieve a
political solution. Demonstrating increased support for him and his
desire to intensify reform in the Parliament will directly contribute
to efforts to achieve a political solution.
While we have an ongoing parliamentary strengthening program, we
are considering ways to expand support for bipartisan efforts focused
on national reconciliation and streamlining legislative operations.
Among the activities we plan to fund are the following:
An expansion of the orientation program for new Members of
Parliament to address conflict resolution and reconciliation.
Members of Parliament are often seen as the source of local
conflict and are routinely accused of exacerbating ethnic
tensions. We are proposing to expand the orientation workshop
to explicitly address post-conflict reconciliation and
mediation issues. These sessions would address current tensions
among parliamentarians and develop their individual capacity to
more effectively and sensitively address their constituents.
Creation of an Inter-Party Parliamentary Forum. The current
political crisis emanating from the outcome of the just-
concluded general elections has resulted in significant
animosity and mistrust between the two main political parties.
The new Speaker of the Kenyan National Assembly has requested
support for this forum, which is intended to facilitate policy
dialogue within Parliament, and between Parliament and other
interested key stakeholders. The focus of this dialogue would
be on issues of national concern and potential mediated
agreements arising from current efforts to development of a
negotiated settlement to the current political crisis.
Civil society has coalesced with impressive efforts to promote
dialogue and national reconciliation across ethnic and party lines.
Providing support to several key umbrella groups will strengthen their
efforts to promote dialogue and build pressure for a political
solution. These groups need resources to pull people together through
specific dialogue and reconciliation programs.
Our ongoing conflict prevention and mitigation program, as
currently designed, is not the right vehicle to respond to the conflict
related to the political crisis. Therefore, as part of a National
Dialogue, Healing and Reconciliation Program, we anticipate extending
grants to civil society and media organizations to do the following:
Bring groups together to dialogue and build consensus around
issues to be addressed in the national reconciliation process;
Support local-level initiatives, particularly in hotspots
and IDP camps, to stop violence (including sexual and gender-
based violence), promote reconciliation, and provide a voice
into the national dialogue;
Train media personnel on conflict sensitive reporting and
ethical standards; and
Support national campaigns on peace and reconciliation and
awareness rising on possible solutions under mediation.
Our staff in Kenya is already reviewing proposals from a number of
civil society and media groups in these areas.
Our Ambassador in Kenya has also been clear that he wants to expand
U.S. public diplomacy programs to find ways to support outreach and
positive messaging efforts by key civil society organizations. This
would greatly support our civil society activities as well.
Second, beyond the immediate humanitarian impact, the post-election
crisis has significantly impacted peoples' income-generating activities
and resulted in substantial livelihood and asset losses. The World Bank
has estimated that up to 2 million Kenyans may be driven into poverty
from the effects of violence and political upheaval following the
disputed election results.
Burned fields and businesses, unharvested crops, market
disruptions, and looting are expected to have long-term consequences.
Kenya's tourism industry, which represents approximately 25 percent of
the economy, agricultural sector, small businesses, and casual laborers
are most affected. The tourist industry has almost completely come to a
standstill, and up to 120,000 people may lose their jobs in the tourism
sector before the end of March. In addition to the detrimental impact
on Kenya's previously strong economy, such losses will mean decreased
income and food insecurity for the millions of Kenyans who live without
a financial safety net.
It will be critical, therefore, to help restore the livelihoods of
many households in Kenya that have been forced to abandon their farms,
small businesses, and other means of livelihood. Since the areas most
affected by violence are heavily dependent on agriculture--and
constitute the heart of Kenya's bread basket--agricultural inputs and
equipment are essential assets for the affected population to resume
productive and economically gainful activities. Among some of the
activities that we expect to support in this area are providing seeds
and other agricultural inputs and tools, rebuilding grain warehouses,
and extending seed capital for reengagement in income-generating
activities.
We are very encouraged that the GOK announced on January 30 the
launching of the National Humanitarian Fund for Mitigation of Effects
and Resettlement of Victims of Post-2007 Election Violence. This
commitment was reiterated on February 4 as part of a more comprehensive
public statement on National Dialogue and Reconciliation made jointly
between President Kibaki and Opposition Leader Raila Odinga. While we
still need to learn more about this fund, we understand the objective
will be to assist with the return displaced people to their home areas;
restoration of their livelihoods; and financing of relevant development
projects. USAID will consider the possibilities of also providing
support to this effort.
Third, since longstanding issues about land tenure were among the
factors fueling the crisis in western Kenya, we believe that supporting
reform relating to land tenure and property rights will be critical.
There is a compelling need for land reform, leading to the security and
regularization of tenure and property rights. A draft national land
policy and related implementation plan already are in place, and there
has been broad consensus among Kenyans that this draft national land
policy reflects national sentiment. USAID is already a partner in the
land sector, and even prior to the elections was taking stock of
options for expanded support to land reform.
UPDATE ON THE HUMANITARIAN SITUATION AND USAID EMERGENCY ASSISTANCE
Let me now turn to a brief update on the current humanitarian
situation in Kenya. My colleague, Deputy Assistant Secretary for
Democracy, Conflict and Humanitarian Assistance, Greg Gottlieb,
testified yesterday before the House Foreign Affairs Committee in
significant detail on the humanitarian situation in Kenya. We have
brought copies of his testimony for those wishing to have this more in-
depth report.
In brief, the situation in Kenya is extremely fluid and continues
to change on a daily basis. Beginning on January 23, violence escalated
in previously affected areas, and spread to new locations including
Naivasha and Nakuru towns. Populations continue to receive threats of
renewed attacks targeting local residents, displaced populations, and
personal and private property. The Government of Kenya's National
Disaster Operations Center has confirmed 895 deaths resulting from
post-election violence as of January 28, including 165 deaths since
January 23.
Although media reports indicate that as many as 300,000 people have
fled their homes and found temporary shelter in camps or with host
families, USAID field staff note that efforts to quantify Kenya's newly
displaced population are complicated by insecurity, continued
movements, and unpredictable access to affected areas. In addition,
many IDPs have been absorbed by host communities, and mechanisms to
identify, locate, and track these vulnerable populations are not yet in
place. The recurring cycles of violence are likely to impact IDPs'
decisions regarding future movement and the possibility of returning
home
In terms of the USAID response to this situation, we have provided
more than $4.7 million for emergency humanitarian response activities
to date. Immediate priorities for USG assistance include protection,
water, sanitation, health, shelter, and camp management interventions
targeting displaced populations and stressed host communities in areas
of Nairobi and western Kenya.
In response to the complex humanitarian emergency in Kenya, a USG
Inter-Agency Task Force convened in Nairobi to coordinate the various USAID
teams and other USG response efforts. A Disaster Assistance Response
Team (DART) from USAID's Office of U.S. Foreign Disaster Assistance has
deployed to Kenya and is working in concert with the USAID Kenya and
East Africa missions and other USG agencies to coordinate the U.S.
response effort. The DART is conducting field assessments, liaising
with U.N. and international relief organizations, and engaging with
other donors to identify evolving priority needs.
The USG is the largest donor to the U.N. World Food Program in
Kenya. In close coordination with the Kenya Red Cross Society, WFP has
distributed more than 1,226 metric tons of emergency food relief,
valued at approximately $1.3 million, to affected populations in
Nairobi and western areas of Kenya.
USAID staff reports that the international humanitarian community
is meeting the immediate needs of Kenyans displaced by the violence.
However, additional support will be needed to meet evolving needs in
camp management, health, nutrition, protection, conflict mitigation,
and early recovery over the next 12 to 18 months.
CONCLUSION
As I believe I have outlined in substantial detail, we are actively
engaged in reviewing, how we can reprogram existing programs and
identify possible additional resources to address the critical needs
that Kenya currently faces. We are most clear on our immediate next
steps in the democracy and governance and national reconciliation
arenas, and are working hard to clarify what we can do to address such
crucial underlying issues as land tenure and land reform. In the
meantime, we are also working hand in hand with donors and other
organizations on the ground to deliver critically needed humanitarian
assistance and to assess what more must be done to ease the transition
for displaced Kenyans by helping to restore their livelihoods and
return families to their homes.
We look forward to continued opportunities to inform the
subcommittee on our progress in this regard.
Senator Feingold. Thank you, Ms. Almquist.
We'll begin with 10-minute rounds.
Secretary Frazer, thank you for your testimony and for
coming to testify before the subcommittee so soon after your
return from the region.
Just, before we begin with Kenya-related questions, I would
like to raise a one-time sensitive issue with you. On December
13, Chairman Biden sent a letter on my behalf, requesting
cables in the Ogaden Region of Ethiopia. The letter contained
the specific number of each requested cable, which I would
assume makes it quite simple for these communications to be
located and delivered.
It is now February 7, nearly 2 months later, and these
cables have still not--are still not delivered. What's taking
so long for these cables to be delivered? As you well know,
part of my job is to conduct oversight, and I have requested
these cables accordingly. I understand you've been traveling
quite a bit recently, but surely the sign-off procedure to get
these cables to the chairman of the Africa Subcommittee isn't
that difficult. I would like to know when these cables will be
delivered.
Ms. Frazer. Mr. Chairman, it is my understanding that that
issue of responding to your request is being vetted through the
State Department. It's not an issue that my Bureau clearly
handles alone, and as soon as that vetting is completed, then I
would imagine that you would get the answers that have been
requested. But, certainly my Bureau is not the one that is the
final signoff on providing cables, by number, to the committee.
Senator Feingold. Who has the final sign-off?
Ms. Frazer. I don't know, but I know that it's being vetted
through the building. The lawyers will have to have a look at
that. There are bigger issues that the State Department, as an
institution, working with the Congress, will have to address.
And that's not something that my Bureau is responsible for.
Senator Feingold. OK, well I hope the vetting happens
quickly. I recommend that these cables are delivered as soon as
possible. We've already lost too much time, and quite possibly,
too many lives in that situation.
Let's turn to the issue at hand and discuss Kenya. Given
your trip to Kenya in the aftermath of the elections, what do
you see as the major points of concern for resolving this
political crisis? How are we working with former U.N. Secretary
General Kofi Annan to support his current mediation efforts and
what precise contributions are we making to these negotiations?
Ms. Frazer. Thank you for that question.
I think that the key for progress is the willingness and
the good faith of the leadership of the PNU, Mwai Kibaki's
party, and of ODM, Raila Odinga's party, and their mediators.
We are supporting Kofi Annan's mediation. We began
supporting it even before it started, with Secretary Rice, and
the U.K. Foreign Secretary Milliband issuing a statement
welcoming the AU initiative under John Kufuor, to negotiate
with these parties.
When John Kufuor decided that he would have Kofi Annan as a
lead mediator, we again welcomed that. We met and talked to
both Kufuor, as well as Annan; Secretary Rice has spoken to
both as well. We have provided ideas for them. We have also
pushed the different parties, Kibaki and Odinga, directly.
We've tried to build and help civil society voices speak up, to
put the pressure of their constituents on them. And so we've
been working very directly, diplomatically, with the mediators
themselves, as well as the parties and the broader society.
Senator Feingold. Assistant Secretary, do you agree that
the crisis in Kenya has serious strategic implications for the
United States, and to follow on that, do you agree that the
ability to anticipate crises, like this one in Kenya, can be as
important to defending America's interests as the ability to
respond to crises after they've unfolded?
Ms. Frazer. Certainly, the United States has key strategic
interests--we have an interest in Kenya regaining its role as a
stable, democratic, and economically viable country in East
Africa. We have an interest in ensuring that Kenya resolves its
political challenges in a way that contributes to
reconciliation by the broad majority of Kenyans, and restores
international confidence; and we also must protect our
strategic relationship with Kenya, especially on regional
conflict resolution, where it impacts us directly.
Kenya has been a key partner particularly on the
implementation of the Comprehensive Peace Agreement in Southern
Sudan, as well as on counterterrorism cooperation.
Yes; I do believe that it's important to anticipate these
challenges, and I recall that when I testified as the Assistant
Secretary nominee, I raised the issue of how elections
throughout Africa become flashpoints of conflict, and that we
need to strengthen them, institutionally, to be able to manage
these elections.
And certainly, since becoming Assistant Secretary, I've put
an emphasis on trying to support electoral commissions, the
judiciary, the independent media--all as key institutions, as
well as political parties, for managing these elections. This
problem in Kenya can actually be seen throughout all of Africa.
And so, we have anticipated such challenges.
Senator Feingold. Well, how does the State Department work
with other U.S. agencies--including the intelligence
community--to actually anticipate these kind of crises, and
what resources are you using, or should you be directing toward
achieving that goal?
Ms. Frazer. Well, we certainly--with our intelligence
community, but also with our diplomats on the ground talk to
all of the parties. We are aware of orientations of different
political parties and their response. Secretary Rice spoke to
both sides, saying to them that they both must be willing to
accept defeat. She had that message for a reason. But we
certainly work with the intelligence community, but also--I
would just emphasize--with our diplomats on the ground. Our
Ambassador had been making speeches in the lead-up to this
election, trying to influence Kenyan leaders, as well as civil
society on how they respond to any particular outcome of the
election.
Senator Feingold. I understand that visa bans may be under
consideration, in fact I've heard recent information on this
just prior to the hearing--for certain members of the Kenyan
Government and/or the opposition party. Can you share your
criteria for such consideration, and who you might be
considering?
Ms. Frazer. Yes, thank you. For the most part, we of course
rely on the judgment of our Embassy on the ground, because
they're involved in dealing with these leaders and government
as well as opposition on a daily basis.
But, there is certain evidence--we monitor the radio, we
look in newspapers--of those who are inciting and continuing to
incite violence, and they would be the first target of our
effort to impose a visa ban. And so, the Embassy will generate
a list of names, that list will then come back to Washington,
and we will review it. But again, we would heavily rely on the
Embassy on the ground for determining who should be on the
list.
Senator Feingold. Thank you.
Ms. Almquist, as you know, the USAID--that's the American
taxpayers, of course--funded an exit poll, conducted by the
International Republican Institute in Kenya. I'd like to ask
you both about why this report--actually from both of you, but
you in particular--why this report has not been made public?
Does USAID and the State Department have a view as to whether
or not it should be published? Why hasn't it been published?
Ms. Almquist. Mr. Chairman, I'll have to look into that for
you and provide you an answer back. I'm not clear why we
haven't made that report public.
Senator Feingold. Ms. Frazer.
Ms. Frazer. I haven't discussed it with IRI, and so I don't
know why they haven't made their report public. I think that,
again, we have been focusing on the mediation by Kofi Annan.
We've been preoccupied with trying to end the violence, but
certainly we can ask IRI if there's a reason for them not
making----
Senator Feingold. Given the urgency of this----
Ms. Frazer [continuing]. Important public----
Senator Feingold [continuing]. I don't consider either of
those to be serious answers. This is a very delicate thing.
Ms. Almquist. Mr. Chairman, I----
Senator Feingold. I really do hope you'll immediately get
back to me on this.
Ms. Almquist. Yes, sir. And, to my knowledge, we have not
asked IRI not to make the report public, but I believe there's
a question of confidence for IRI in the results of the exit
poll, but we'll immediately get you an answer on that.
Senator Feingold. I'm sure we'll be worse off if it's
repressed, rather than getting it out and talking about
whatever problems there might be.
We have been hearing from the President for several years
now about--this is to Ms. Almquist again--about Kenya's
strategic importance to the United States, and the State
Department's fiscal year 2008 budget justification called this
year a ``critical year'' for Kenya.
Yet, United States foreign assistance to Kenya is
overwhelmingly--in fact, almost 90 percent of the total--
concentrated in HIV/AIDS programs, which of course, I have
strongly supported. While this epidemic is certainly a major
challenge for Kenya, we've seen in the last few weeks that it
is not the only serious obstacle to Kenya's stability and
development.
Similarly, the United States Government's democracy
governance program in Kenya has had a narrow focus on
elections, but the conflict that has broken out in Kenya has
been largely fueled by many people's views by a sense of
economic injustice. Do you think the United States Government
has been overly focused on HIV/AIDS and elections in Kenya,
rather than investing in strengthening critical institutions
across a number of sectors, and could the United States have
done more to invest in programs that might more effectively
have prevented the current conflict from breaking out?
Ms. Almquist.
Ms. Almquist. Mr. Chairman, thank you for that question.
We have been seeking to increase our development
assistance, non-HIV/AIDS related, to Kenya. It's one of 7
countries that both the State Department and the U.S. Agency
for International Development have prioritized in our last
couple of budget cycles, and we continue to do that. It is
critical--not just for the Kenyan people, but for the entire
region--that it grow economically and that it continue on its
path to democracy.
Economic growth is a key area for us in our development
program. We seek to build linkages between the HIV/AIDS program
which--as you rightly point out--is very large. We think that's
appropriate for the scale of the HIV/AIDS crisis there, and
shouldn't detract from, or be a tradeoff against other
development priorities.
Having said that, we are reviewing the economic growth
strategy that we have in Kenya right now, which has been
focused on natural resource management, and increasing
agricultural productivity, as well as boosting Kenya's
participation in international trade, and other means for
increasing its own resource base.
We think livelihoods, as I said, is going to be critically
important going forward, as well as land reform, specifically
the land tenure system. We had already invested in an effort
with DFID and Swedish SIDA, to support a land reform strategy
process. This now needs to be implemented and carried forward,
and we're seeking to identify additional resources to do that.
I believe that within our budget, we will be able to
prioritize that further, going forward, and we do recognize the
critical importance of the underlying tensions here.
Thank you.
Senator Lugar.
Senator Lugar. Thank you very much, Mr. Chairman.
Secretary Frazer, I'm curious as to what kind of a
reception you received from the Kenyan Government and the
opposition party when you arrived. You went promptly--at the
direction of our government--to that country, and I'm just
curious, does this make any difference to Kenyans? Was your
presence, or our interest at that point, really a factor, in
terms of their consideration of what was occurring in the
country?
Ms. Frazer. Thank you, Senator Lugar.
I was well-received by both the government and the
opposition, as well as the broader Kenya society, I believe. At
the time that I arrived, only Bishop Tutu had come to Kenya. He
left the day before I arrived. He played an extremely important
role in bringing church leaders together, to try to put
pressure, again, on both sides.
My presence helped to clarify that the government
recognized that there were irregularities. I think there is
additional need to continue to make them aware of that. After
my first meeting with President Kibaki, he issued a statement
saying that the government was prepared to power-share. He
phrased it ``a government of national unity,'' later it became
``a coalition government.'' But it was the first public
statement on his part that power-sharing was necessary to
resolve this crisis.
On the opposition side, again, I was well received. I had
several meetings with Raila Odinga--what is called the
pentagon--the political leadership around him, as well as more
in his party. And they also came out and publicly called off
certain demonstrations which were creating a sense of
insecurity in the public. We put pressure on the government to
allow for freedom of the press, to allow live bands.
We made sure that Raila Odinga would be given a voice. We
actually arranged for his statements to be broadcast live. And
so, I think on all sides, there was an appreciation of the U.S.
role, and our effort, and the fact that we were quick to
respond to the crisis in Kenya.
Senator Lugar. Well, following that, however, Kofi Annan as
you pointed out, is still there and others as well, attempting
to mediate--is the election situation one in which regardless
of how the election was conducted, there was a disposition, in
your judgment, in the country before the election, not verging
toward civil war, but at least those who were dispossessed,
those who were not doing well, historically, were there tribal
divisions--in other words, was the election a proximate cause
for existing divisions that local leaders or others were
fomenting? So that even if at the top, you're visiting with the
Presidential candidates, and even as Ms. Almquist has
testified, maybe 70 percent of the parliamentary situations
where there is really no dispute. Because fundamentally, the
country has shown it is really not prepared to think in a
unified way--this is a proximate cause for people going their
own way, settling things by force or other devices, within the
country.
Ms. Frazer. I think that the problems in Kenya are very
complex. And I think that we've seen that the country is
prepared to come together, in the voice of civil society, in
the voice of the media and the spontaneous effort, the ``Save
our Beloved Country'' campaign. Ambassador Ranneberger
participated in live call-in shows. Even while the violence was
taking place, people were calling for their leaders to act
responsibly and to end the violence.
And so, I think that yes, there are definitely very deep-
seated divisions that any politician can mobilize on an ethnic
basis. I think there are deep concerns and grievances that have
to be addressed. But I do believe that Kenyan society can pull
through this, with responsible leadership.
I think that the question of responsible leadership is one
that is not at all clear, that both sides have not yet decided
that the way out is through negotiations. They are
participating in this process, but we are calling on them to do
so in good faith, with the result being that they can help pull
their societies back from the brink of this polarization and
this ethnic conflict.
Clearly, whenever such violence is unleashed, the dynamic
can get out of the hands of any particular leader, or any of
the political leaders. So there is a tremendous danger in Kenya
right now that the communities will go at each other, out of
control of their political leadership.
Senator Lugar. To what extent are communications in Kenya
sufficient that people throughout the country would have some
understanding of the crisis? At least in these dimensions.
Obviously, the contention, politically, is evident, but our
press now is carrying stories of even American companies, quite
apart from companies elsewhere, hesitating to invest more in
Kenya, or even discussion withdrawing their support.
And thus, the unemployment you have described--both of
you--in your testimony, is being exacerbated by predictions
that a great deal more is to come. In other words, what was
coming to be a success story of sorts, relatively speaking, is
rapidly unraveling. So that, regardless of who is contending
out on the hustings, there's going to be much less around the
table at that point to deal with.
Now, if that's not understood by most people in Kenya,
that's too bad. While these contentious problems may have been
going on historically for a long time, at least the degree of
unity until now in Kenya had led to a great deal of new
investment and progress, which is perceived by some, but not by
all.
That's why I'm wondering--are the leaders able to
communicate out to the hustings for everybody to call it off?
In other words are the emotions at this point, such that people
are simply determined to have it, even if the pie grows a great
deal smaller. I ask this because I agree with the chairman--
clearly we probably should be doing more in terms of our
assistance in economic reform, other things, in addition to the
important HIV/AIDS, PEPFAR program.
But we're coming in, really, as everybody else is going
out. In other words, in the investment climate, as such, we
could prop up a few situations, and do some teaching about
economic reform, but maybe not to a receptive audience. So,
tell me about communications--what kind of leadership is there?
Ms. Frazer. There's certainly a vibrant media in Kenya that
I would say reaches all parts of the country. And so, if the
leaders put out unequivocal statements to end the violence, it
would have a positive impact. And if they did it jointly, as
they've been asked to do by Kofi Annan, it would have even a
more magnifying, positive impact.
The problem is that both PNU and ODM are sending mixed
messages. On the one hand, you will have one leader go out,
even the principals, to say something positive about
reconciliation, and then the hard-liners on their teams convey
a different message. And so they're sending out mixed signals.
Again, as I said, civil society has been much more
responsible, and much more positive, which is why part of our
strategy is to try to elevate that voice of civil society
groups. Whatever their solution--and there have been--from the
day I arrived in Kenya, a million proposals, well, not a
million but many proposals handed to me from all sides, trying
to find a solution, and they all had a common element to them,
which is negotiation, reaching out, messages of reconciliation.
So, I think that if we can bolster the voice of civil society
and help it to remain, continue that responsible voice of
saving Kenya, their beloved country, that the media can play a
very constructive role in solving this crisis.
Senator Lugar. What further leadership on our part,
obviously, Kofi Annan's leadership is tremendous. But the
reason I started by asking what kind of reception you had is
really--what is the influence of the United States in Kenya at
this point? And I ask this, this is a long time ago but I
remember vividly, the Philippine election of 1986. Clearly,
great dispute about the outcome. A million people out in Edsa,
and so forth.
But at that particular point, the United States, I remember
vividly, said to President Marcos, ``Cut clean, or go.'' Now,
we had that degree of influence. He went down the river and out
to Hawaii.
What I'm asking is: Who has any influence in Kenya? If not
us, the U.N.? The French? The British? Or is it simply up for
grabs at this particular point, without the kind of influence
that might bring resolution with the leaders?
Ms. Frazer. The United States certainly has significant
influence in Kenya. And we are trying to use that influence to
push all sides to negotiate in good faith. There are problems
within the government side; there are problems within the
opposition side. And what we have to do is try to bring
leverage to bear, which is why we're reviewing all of our
assistance programs. That leverage, of course, will best be
applied to the government side.
We're also looking at the visa ban, which gives us some
leverage, both over the government and the opposition. And so,
yes, the United States does have a key role to play. We feel
that we've been seen, so far, essentially as a neutral party
who can try to bring these two together, and we are doing our
utmost to protect that position.
Of course, the United Kingdom also has significant
influence in Kenya, as does the African Union mediation of Kofi
Annan. Kofi Annan is respected by all sides. And so I think
that we will continue to try to push the negotiation to his
table, rather than have parallel tracks of negotiation.
Senator Lugar. Thank you very much.
Thank you, Mr. Chairman.
Senator Feingold. Thank you, Senator Lugar.
Senator Cardin.
Senator Cardin. Thank you very much, Mr. Chairman.
And let me thank both of our witnesses for their service to
our country.
It's clear that the initiative by Kofi Annan is the best
opportunity we have, and I think we all need to be able to
support that and move in as much concerted effort as we can to
bring an end to the violence in Kenya, affecting the people of
that country. I think that's our first priority and to work to
the underlying causes that you, Madame Secretary, have brought
up.
But I want to go back to the trigger mechanism. Before the
December 2007 elections, you acknowledge that elections were
flashpoints in African countries. And we clearly knew that this
election was a competitive election.
As I look at the reasons why it was declared by the
observers not to be fair, open, and free elections, is that
there were indications that election results were transferred
to the National Election Board, and last minute changes kept
the government in power. The ballots were destroyed and there
was no transparency in the process, that gave no confidence
that the results are fair. And that, in fact, the winner was
correct.
My question is, Did we anticipate these problems? Were
there any efforts make to try to prevent this type of election
fraud? There were concerns out in the communities where the
ballots were tabulated, but they seemed to be minor, compared
to the problems at the national level.
So, I want to know why we were not more prepared to try to
avoid another flashpoint election problem in Africa?
Ms. Frazer. Thank you, Senator Cardin.
Certainly we were prepared, and we have tried to use all
levers of U.S. diplomacy to try to prevent a crisis like this.
We didn't anticipate, of course, the degree of the
innercommunal violence. We certainly did, however, know that if
this contest was very close that violence was a probability.
That is why we emphasized and told to both leaders that they
both had to be prepared to lose.
We certainly tried to strengthen the Electoral Commission.
I myself had met with Commissioner Samwel Kivuitu. He was
widely respected; we had confidence in his ability.
We understood that the selection of the Commissioners, as
allowed by Kenya's Constitution, was a problem, and that there
needed to be constitutional reform. In fact, that was one of
the issues being debated. All of these leaders have been
grappling with the issue of constitutional reform, which gives
too much power to the Presidency to select the Commissioners.
We therefore tried to urge changes in how the vote tallying
process was reported. And so, all throughout this process,
Senator, we have been engaged in trying to support----
Senator Cardin. But, it seems like it's Democracy 101. You
preserve the election records, you don't destroy them. And if I
understand what happened in Kenya, the ballots were actually
destroyed.
Ms. Frazer. Well, I know that that's the rumor. I asked
Chairman Kivuitu when I was on the ground in those early days,
``Is there custody? Where are the ballots? There may be an
inquiry; we need to make sure that clearly no one is tampering
with those papers.'' He told me----
Senator Cardin. Do you have confidence that no one is
tampering with them?
Ms. Frazer. No; I don't have confidence that that's the
case. What he told me is that they're locked up, they're being
protected. I said, ``Are you sure?'' And so, yes, it is
Democracy 101, to make sure that the issue that is being
debated, the electoral tally, the vote, and the reporting
sheets, are protected. And we did raise that with the
individual who is responsible, as the Chairman of the Electoral
Commission, for seeing that that's done. He gave me the
assurances that it was, in fact, being protected, but I did not
have confidence that that was the case.
Senator Cardin. One of the hats I wear here in the United
States Senate is the Senate Chair of the OSCE, Helsinki
Commission. And we spend a lot of time on election monitoring.
And election monitoring is important, and in Europe it has been
very helpful. We've seen governments fall because of our
determinations of fairness of elections. What happened in the
Ukraine was you had an election reversed by the people. But
that was a powder keg too, it could have exploded. Hundreds of
thousands of people in the streets, but fortunately the
violence was very, very minor.
I'm just wondering if, Administrator Almquist, we are
spending our money properly under USAID in these countries.
Election monitoring is important, but it tells us after a
problem has already occurred. And if a powder keg is there, and
is going to explode because of elections not being fair and
open, it seems to me that it would be better to invest funds to
try to get these elections right in the first place, rather
than having to get them reversed. Is there a better way to
focus our resources to try to prevent these types of
circumstances in the future?
Ms. Almquist. Thank you, Senator. Election monitoring was
one of the components of our democracy and governance program
leading up to the December 27 elections. We identified in 2005,
in fact, when we did our last multiyear strategy for Kenya, the
need to invest up front in the elections process, leading up to
the elections.
We spent $4.6 million in technical assistance for the
Electoral Commission of Kenya through IFES and also UNDP.
Amongst the kinds of assistance they tried to provide was on
the use of appropriate technology for transparency and
accountability of the election results.
So, for instance, the ECK, with its own funds, in fact,
purchased tamper-proof bags to secure election results and
transport them. However, they weren't used consistently in this
process.
We provided additional experts when several of the
Commissioners raised questions about some of the technologies
that we were trying to introduce to the Commission so that they
could become more comfortable, more familiar with them and
would actually use them, but ultimately--we can provide the
assistance, we can share lessons learned and experience from
many other places around the world--not just in Africa. But if
the Commission doesn't take advantage of that expertise and
that assistance and apply it during the course of the
elections, then we see the kind of problems that we have now.
We agree, we need to go back and review our program and
learn lessons ourselves, to see where we can better focus
efforts in the future, but we do think that we correctly
identified the ECK as a critical component for the election
process. It worked for local elections, for parliamentary
elections--everything didn't break down, and so I think we can
see some achievements there. But the vote tallying for the
Presidential elections was clearly still an issue.
I think that we can all see that there are constitutional
reforms needed, with the constitution of the Commission,
creating greater checks and balances so that the independence
and the neutrality of it going forward is improved over this
time around.
Senator Cardin. I appreciate that answer, and we certainly
can not dictate the type of conduct. We can only try to provide
some help as to how free and fair elections are conducted.
But it seems to me there should be a clear understanding as
to how elections are tabulated, and how records are kept, in a
very open, transparent, but safe and secure way. And it seems
to me that that's kind of basic. And my concern is whether that
type of technical assistance was available to Kenya prior to
the December elections, and whether there was just a disregard
for it, or whether we were not as effective as, perhaps, we
could have been prior to their national elections.
Ms. Almquist. Senator, we did absolutely provide that
assistance through our best civil society organizations in the
United States--IFES, the National Democratic Institute, and the
International Republican Institute were all involved and
received assistance or funds from USAID to provide assistance
in various forms to either the Kenyan Government institutions
responsible for administering the elections, as well as
increasing public awareness about the conduct of the elections
and civic education, voter registration efforts, working
through the media and civil society so that there would be
greater accountability for the government in the process of the
elections.
We worked on political party strengthening. We trained more
than 200 women in political leadership so that they would be
viable candidates to stand for elections. And, in fact, 14
women were elected to Parliament, which is the largest number
of women elected, so far. Still not satisfactory out of a 210-
member Parliament, but nevertheless, we can see some
achievements as a result of the assistance that was provided.
We absolutely need to go back and review those programs,
and see what further can be done going forward.
Senator Cardin. Let me just conclude by saying, we know
that elections are flashpoints. It's very important that we get
the constitutional reforms, that we get the democratic
institutions in these countries, the respect for human rights,
the independent judiciary, the independent legislation, and
fair elections of local officials--that's all very, very
important. We need to concentrate on free and fair elections in
the African countries. And it seems to me that we may want to
take a look at revising our strategies, as to how we provide
technical assistance, knowing how sensitive this issue can be
to the stability of these countries.
That's my point, and I do thank you for your response.
And thank you, Mr. Chairman.
Senator Feingold. I thank my colleagues and I thank the
first panel. Thank you so much, and I'm going to ask the second
panel to come forward.
Thank you very much, and obviously your full statements
will be included in the record. And if you could keep your
comments to a relative summary of your longer remarks, that
would be great.
Let us begin with Mr. Albin-Lackey.
STATEMENT OF CHRIS ALBIN-LACKEY, SENIOR RESEARCHER, AFRICA
PROGRAM, HUMAN RIGHTS WATCH, WASHINGTON, DC
Mr. Albin-Lackey. Thank you, Mr. Chairman.
The statement that I submitted into the record goes into
some detail about the findings of our recent research mission
to Kenya which focused mostly on the police killing of dozens
of people in various parts of Kenya, particularly in Kisumu, as
well as the nature and the origins of the intercommunal
violence that has since followed the elections.
I won't go into too much detail about that, I just want to
highlight a few of the broader trends that we think are most
important, and then talk a bit about the process moving
forward, and our views on that.
First of all, I think the most important point to
highlight, maybe, about the violence is that while, yes, there
are many and deep underlying causes of what's going on in Kenya
right now, the violence is not spontaneous, for the most part,
and can't be considered that way.
There are a lot of reasons why the ground was so fertile
for inciting the kind of ethnic violence that's raging across
the country today, but much of that violence was, in fact,
incited.
What we found again and again in communities that have been
affected by violence is that people were told by local leaders
that they should react to an unfavorable election result as
though it were war, and that, in the aftermath of the election,
much of the violence that has followed in recent weeks is
increasingly not only incited, but organized in a very detailed
manner, by community leaders and by politicians at the local
level, at the very least.
Second, aside from the violence itself, perhaps the most
disturbing development in all of this has been the very rapid
and extreme degree of polarization that's resulted from all of
this, just in the space of a few short weeks.
Relations between the groups that are at loggerheads in
these conflicts in various parts of Kenya have often been very
difficult for a long time, but things have gotten rapidly
worse. Even just in the short time we were there, there was a
noticeable ratcheting up of the level of ethnic rhetoric, the
level of hate speech, common reference to people on the other
side of the ethnic divide in parts of the Rift Valley as being
``inhuman'' and the active use of that kind of rhetoric to
justify atrocities that had already happened, and to prepare
people to carry out still further violence.
And third, in many of the places where violence has already
occurred, there's a very real threat of further and more
serious violence. There are tens of thousands of people who
have been displaced from their homes, particularly in the Rift
Valley. Many of those people are now living in IDP camps that
are not well-enough protected. And there are people in
communities around the Rift Valley who are actively planning
ways to attack those camps if they feel that they can do so,
and carry it out successfully.
The Kenyan police, to their credit, have really--have done
a great deal to protect people affected by violence across the
country, in spite of the brutality with which they've responded
to opposition protests, which has to be investigated. But, the
police are overstretched, and if it isn't possible for the
police to rise to the task of protecting all of the people that
need to be protected, who are at risk of future violence, then
the Kenyan Government should be exploring ways of asking for
outside help to deal with that problem.
Now, moving forward, as has already been said by several
people, the Kofi Annan-led mediation effort is the best, and
really the only, hope of finding a way forward. And there are
many, and very complicated, issues that have to be addressed
through that mediation effort.
But there are two things that have to happen immediately,
and which actually ought not be the process of protracted
wrangling and negotiation. The first is a stop to the violence.
And the fact is that in spite of public statements that really
don't amount to anything more than hollow posturing, neither
side has done nearly enough to impress upon its supporters on
the ground that further violence won't be tolerated.
The fact is that many of the people who are carrying out
the violence across Kenya believe that they are doing so in
support of the ambitions of their political leaders at the
national level, and do not believe that they are doing anything
to contradict the wishes of those leaders in carrying out
further violence. That has to change. And until the leadership
on both sides does that, they have to be made to understand
that they will bear a share of the accountability; a share of
the blame for any further violence that happens in the coming
weeks.
I'm running out of time, so let me just also say that while
many of the issues that have to be dealt with are very complex,
it's important to remember, and not to lose sight, in the face
of all of that complexity, of the fact that the rigged
elections were the primary spark for this crisis, and they have
to be addressed. And while both sides bear, probably, an equal
share of the blame for the violence that's unfolding in the
streets, the primary impediment to dealing with the election
issue is the Kibaki government. The election results in the
Presidential poll have no legitimacy, they have to be the
subject of an impartial inquiry, and if that inquiry is
inconclusive because the evidence can't be found, or it's been
destroyed or tampered with, then the process should end, when
feasible, at some point down the line, with a new election. But
one way or the other the rights of Kenya's voters have to be
safeguarded and upheld at the end of all of this.
Thank you.
[The prepared statement of Mr. Albin-Lackey follows:]
Prepared Statement of Chris Albin-Lackey, Senior Researcher, Africa
Program, Human Rights Watch, Washington, DC
Thank you, Chairman Feingold, and members of the committee, for
inviting Human Rights Watch to participate in this hearing. My name is
Chris Albin-Lackey and I am a senior researcher with the Africa
Division of Human Rights Watch. Just over a week ago I returned from a
research mission that began our ongoing assessment of the human rights
impact of Kenya's post-election crisis. We will be carrying out more
research on the ground in the coming weeks that will seek to document
the effect of the ongoing violence on ordinary Kenyans, identify the
individuals most responsible for fomenting it and contribute toward
charting a way forward that addresses the underlying causes of the
crisis.
Watching the chaos that is threatening to tear Kenya apart today,
it is easy to forget that just over a month ago Kenyans lined up in the
millions to cast their votes in peace. If those voters' rights had been
respected to begin with, the members of this committee would likely
have been able to join the world in congratulating Kenya on a
tremendous stride toward consolidating its democracy. Instead Kenyans
are faced with a sudden tide of violence that threatens to derail hopes
of socioeconomic progress in Kenya and damage the prospects of
democracy across the continent.
Of course, Kenya's violence has roots that run far deeper than the
disputed polls of last December. Underlying causes of the anger and
division that have boiled over in recent weeks include longstanding
injustices related to land ownership and political marginalization; the
failure to enact important constitutional reforms; the political
manipulation of ethnicity; impunity for past episodes of violence; and
other core issues that successive Kenyan governments have completely
failed to address. Whatever way forward Kenya finds from the current
impasse must include serious and credible efforts to tackle these
issues. It should now be belatedly clear to all of Kenya's leaders just
how dangerous a mistake it was to let these issues fester over time.
At the same time, however, the complexity of the ongoing violence
must not distract Kenya's leaders or the international community from
the problem that was the immediate trigger for the violence--the
rigging of the Presidential polls. The solution to the broader crisis
must include a guarantee that the right of Kenya's voters to have their
freely expressed choice of government respected is upheld in the end.
Because of the number and complexity of the underlying issues and
because of the terrible intensity of the ongoing violence, Kenya's
leaders and the international community may feel tempted to cobble
together a political bargain that sweeps the causes of the chaos back
underneath the rug. This would be a serious mistake. Such an attempt
would lay the groundwork for future crises, just as the failure to
address underlying causes in the past set the stage for today's
upheavals.
The international community, including the United States, has a
crucial role to play in seeing to it that any political settlement lays
the foundations for lasting peace; ensures accountability for the
crimes that have destroyed so many lives in recent weeks; and is
grounded in an unequivocal respect for human rights and the principles
of democratic governance.
KENYA'S DECEMBER ELECTIONS
Kenya's December elections should have been an important milestone
for Kenya and for Africa. After a closely fought campaign Kenyans
turned out in massive numbers to cast their votes in peace. There were
serious irregularities reported on both sides in some areas. However,
the most damaging acts of fraud were committed during the final stages
of tallying, when the Electoral Commission of Kenya (ECK) presided over
what was by all appearances a desperate last-minute attempt to rig the
Presidential contest in favor of incumbent Mwai Kibaki.
In the closing hours of the tabulation process a lead of over 1
million votes for opposition candidate Raila Odinga evaporated under
opaque and highly irregular proceedings and was transformed into a
razor-thin margin of victory for Mr. Kibaki. The result was also
entirely at odds with the ODM's successes in the parliamentary vote.
The entire process quickly fell apart in confusion. In the face of
public outrage and mounting pressure to reverse the move, four
electoral commissioners publicly denounced the apparent fraud. Even the
head of the ECK later said that he could not determine who actually won
the vote. Nonetheless Mr. Kibaki tried to preempt any challenge by
having himself hurriedly sworn in to a second term in office before
Kenyans even had time to register their outrage.
Violence erupted even before the announcement of results as concern
and suspicion about delays spread through the country. Within hours of
the results' announcement Kenya began to slide headlong into the
violent chaos that has steadily grown worse ever since.
THE VIOLENT AFTERMATH OF THE DECEMBER POLLS
The violence that has followed Kenya's disputed Presidential poll
presents a complex picture that varies considerably across different
parts of Kenya. Aside from opportunistic violence and looting the
crisis so far has taken on three central dimensions.
First, scores of Kenyans have been shot by police officers in
circumstances that were generally unjustifiable and in some cases
amounted to extrajudicial killings.
Second, the announcement of the Presidential election results
sparked ethnic violence which at first was primarily directed at
members of Mr. Kibaki's Kikuyu tribe. That violence has now spawned a
proliferation of ethnic-based reprisal attacks, some of them in
communities that had been peaceful in the immediate aftermath of the
elections. These reprisals are degenerating into a self-perpetuating
cycle that has become more difficult to stop with every passing day.
Third, violence has been accompanied by a rapid deepening of
polarization characterized by attempts to silence, threaten, and
intimidate voices of moderation and dissent including human rights
defenders, political dissidents, and ordinary people.
The most important fact that must be taken into account moving
forward is that most of the violence cannot be seen as spontaneous. In
many cases attacks were actively incited and in some cases directly
organized by community leaders, local politicians, and others. At the
national level, the efforts of political leaders on both sides to rein
in the excesses of their supporters have been woefully inadequate at
best. Worse, there are allegations that prominent individuals on both
sides have been actively involved in fomenting violence.
(1) Police Violence
The Kibaki government reacted to the public outrage that greeted
its declaration of victory in the Presidential poll by imposing a
blanket ban on public demonstrations. That ban is patently illegal
under Kenyan law. The government tried to defend the ban as necessary
to prevent violence in the wake of the polls. As it turned out,
however, heavy-handed police enforcement of the protest ban claimed
dozens of Kenyan lives in circumstances where the police's use of
lethal force was unjustified at best.
The most egregious patterns of police brutality were seen in the
city of Kisumu on the eastern edge of Lake Victoria. Kisumu is a
stronghold of ODM Presidential candidate Raila Odinga, whose family has
its roots in the area. Post-election protests there degenerated into
violence and looting following the announcement of Kibaki's victory.
The police, initially caught off guard, ultimately reacted by using
lethal force to disperse the crowds and prevent further looting. The
Provincial Police Officer (PPO) for Nyanza province, which includes
Kisumu, acknowledged to us that she ordered officers to use live
ammunition to disperse looters.
In fact the police in Kisumu went much further than merely using
live ammunition to disperse looters. Long after the crowds in the city
center had dissipated, police officers drove into the slums and opened
fire on any group of people they deemed suspicious. We interviewed
several people who were shot while calmly watching the police drive
past them; many said they did not flee because it did not occur to them
to imagine that the officers would try to gun them down.
We met a 15-year-old boy who was shot from behind one evening while
fleeing in terror from policemen who had opened fire without warning at
a crowd of ODM supporters in the slums; he spent the night bleeding in
the dirt near the side of a road. A week later he remained in constant
pain because his family could not afford to see a doctor, buy pain
medication, or even find a pair of crutches to help him move around.
Another young man lost his leg below the knee when police shot him
outside of the store where he worked as a clerk--ironically he had been
there with other employees to help protect the store from looters. And
one woman described to us how her husband was shot in the back from the
window of a police car as he stood talking on the phone near the road.
He died, and when she later went to the police to file a complaint she
was simply told to go away.
Such stories were disturbingly prolific. The police reacted with
the same disregard for human life when faced with fresh protests a week
later even after provincial police officials pledged to us that they
would cease their use of live ammunition. All told, at least 44 people
were shot and killed by the police in Kisumu, many of their bodies
stacked high in the local mortuary. Dozens more were shot and wounded.
A colleague and I spent a day in Kisumu's slums interviewing victims of
this violence on a day when fresh protests were being held and the
sound of police gunfire rang through the streets around us throughout
the day. The same afternoon Kenyan television showed a police officer
in Kisumu shoot a man who had been making faces at him and then walk
over to kick the man as he fell to the ground and died. On that day,
January 16, eight people were shot dead by police in Kisumu, including
a 10-year-old boy playing outside his home.
Kisumu presented the most widespread examples of police brutality
and outright murder of civilians but those patterns were not unique.
Police in Nairobi shot demonstrators under circumstances that remain
largely unexplained on every day that significant opposition protests
attempted to convene in the capital. All told, Kenyan police themselves
admit to having shot and killed 81 people between December 27 and
January 24 and wounded many more. Dozens more police killings have been
reported since then.
The police have announced an investigation into these deaths. This
is a welcome step but an investigation run solely by the police without
independent oversight and control or real transparency will lack
credibility.
It is important to highlight the fact that Kenya's police force has
made effective efforts to protect many of the people threatened by
ethnic violence throughout the post-election period. Those efforts must
be encouraged and supported in every possible way by Kenya's Government
and by the international community. But the positive actions of the
police in that context do not offset the need for investigations and
prosecutions in response to the scores of people police shot and killed
without any justification.
(2) Ethnic Violence Sparked by the Presidential Polls
When Mwai Kibaki was officially declared the winner of Kenya's
Presidential vote, parts of Kenya's Rift Valley erupted almost
immediately into widespread interethnic violence. That initial wave of
attacks in the Rift Valley was primarily directed at members of
Kibaki's Kikuyu ethnic group.
That violence in turn has spawned a series of ethnic-based reprisal
attacks in other parts of the country with Kikuyu militias attacking
ethnic communities seen as broadly supportive of the opposition. Those
reprisal attacks now threaten to spark fresh violence in response and
push the situation further out of control. Tens of thousands of people
have been displaced in this violence and several hundred killed.
Anti-Kikuyu violence in the Rift Valley
We have carried out detailed research into the nature and impact of
ethnic violence in and around the town of Eldoret, which has seen some
of the most brutal attacks. It is worth noting that this region has
suffered previous waves of ethnic violence in the past, particularly
during the 1992 and 1997 elections, but less severe in scale. Those
past events established patterns of impunity and political manipulation
of grievances that helped fuel the current crisis.
In many communities around Eldoret post-election violence erupted
with incredible speed and force. For the most part clashes pitted
mobs--made up of Kalenjin and other ethnic communities who are broadly
supportive of the ODM--against former neighbors who belong to Mr.
Kibaki's Kikuyu ethnic group. The end result in most of the rural
communities we surveyed was the complete destruction of every Kikuyu
home and the displacement of every last Kikuyu family. Hundreds of
people were killed in the process.
In all cases the attacks seem to have been aimed at driving Kikuyu
residents permanently away, not massacring them. But in many cases
bloodshed was the result. In some communities Kikuyu residents
attempted to defend their homes and families and deaths resulted on
both sides. In one widely reported incident in Kiamba, not far from
Eldoret, at least 30 people were burned alive inside the church they
had sought refuge in. We interviewed several young men who participated
in the murder of those people. They all insisted that they had not
actually intended to kill any of the people inside the church when they
set fire to it. But they were just as vigorous in asserting that they
would murder any of their former Kikuyu neighbors who dared return.
In some cases violence caught its victims entirely unprepared. In
other cases people said they had some warning of what was coming. We
interviewed several displaced people whose neighbors warned them after
the announcement of results that they would be attacked if they did not
leave their homes immediately. One Kikuyu man told us that his young
children came home the day after the results were announced and were
upset because other children had been taunting them, saying that they
were going to have to ``move back to where they come from.'' Later that
day the family was forced to flee before a mob that looted their home
and then put it to the torch.
Underlying causes, incitement, and organization
The ethnic divisions laid bare in the aftermath of the elections
have roots that run much deeper than the Presidential polls. The one
issue that is more important to many local Kalenjin communities than
any other is the disputed ownership of local land--a problem that no
Kenyan Government has made a good faith effort to address since
independence. That tremendous failure of governance lies at the heart
of the widespread anger that exploded in the wake of the elections.
The land issue, along with long-unfulfilled promises of
constitutional reform to address demands for greater local autonomy,
created fertile ground to sow the seeds of violence but the Rift
Valley's post-election bloodshed did not arise spontaneously. In fact,
it is very clear that much of the violence was actively incited and
organized, at least at the local level.
We were able to interview people from several different communities
who directly participated in attacks on local Kikuyu families. The
stories they told us were eerily similar. In community after community,
we heard that in the days before the elections community elders, local
ODM mobilizers, and other prominent individuals called meetings to urge
violence in the event of a Kibaki victory. In many communities people
were told the same thing word for word--that if Kibaki was announced as
the winner it must mean the polls had been rigged and the reaction
should be ``war'' against local Kikuyu residents.
The violence that followed in the hours immediately after the
announcement of Kibaki's victory was the result of incitement that
primed communities for a violent reaction but the attacks themselves
were not organized in any deeper sense. We spoke with several Kalenjin
from small rural communities who told us that the few Kikuyu farms
around their homes were destroyed within hours of the announcement of
the election results. In other areas the attacks began when word
reached local residents of the destruction in neighboring communities,
from which local leaders urged them to draw inspiration.
In contrast to that initial wave of violence, subsequent in the
days that followed, were in many cases meticulously organized by local
leaders. In many areas around Eldoret community elders called meetings
where they urged residents to prepare themselves to band together with
groups from neighboring communities to attack larger population
centers. In some cases the elders threatened to burn down the homes of
anyone who did not attend these meetings. In other cases community
leaders demanded that those not participating directly in the violence
pay an informal tax to support the young men who did so.
In several cases these planned attacks were ultimately carried out
as planned. For example, we interviewed Kalenjin residents from several
small rural communities outside of Turbo, a town west of Eldoret. They
told us that after burning down all of the scattered Kikuyu farms
around their own homes, community leaders called mandatory meetings and
instructed people to gather and march on Turbo itself the next day.
The following afternoon groups of young men from numerous farming
communities gathered at a central point and marched together toward the
town. They were turned away by police but elders and other community
leaders organized another attempt for early the next morning. This time
the mob caught the police unawares and rampaged through the town. When
we visited roughly 2 weeks later, nearly every Kikuyu home and business
in the entire town lay in ruins and several thousand displaced people
were living under police guard in a tent camp just outside the town. In
Eldoret town itself, some of the town's relatively few remaining Kikuyu
homes were burned down almost every night we spent there.
Reprisal attacks and the ongoing proliferation of violence
The initial strife in the wake of the election largely took the
forms described above but the picture has quickly grown considerably
more complex. Stories of anti-Kikuyu violence around Eldoret and in
other places have sparked reprisal attacks every bit as brutal in other
parts of Kenya. Kikuyu militias in Naivasha, Nakuru, and other towns
have led pogroms targeting local communities of Luo, Luhya, and other
minority groups seen as being associated with the ODM and, by
extension, with violence against Kikuyu elsewhere in the country.
An especially worrying development has been the assassination of
two ODM Members of Parliament, one representing the Nairobi
constituency of Embakassi and another who won the Rift Valley seat of
Anapuria. These killings provoked further clashes, especially in the
southern Rift Valley between Kalenjin and Kisii communities.
In the districts of Trans-Nzoia and Molo, fighting which preceded
the election has begun anew after a brief lull. We estimate that at
least 70 more people died last week alone. The Kenyan Red Cross has
revised its estimate of 800 total deaths and now believes that at least
1,000 people have lost their lives.
By all appearances this latest phase of violence is no more
spontaneous than the Rift Valley violence that helped to spark it. The
Kikuyu militias responsible for the bulk of the atrocities seen in
recent days are well organized. Most worrying of all are reports that
some of the violence is being carried out by the widely feared Mungiki
sect.
The Mungiki are a brutal criminal gang that promotes a violent
brand of Kikuyu chauvinism. In 2007 the group was driven underground
and badly weakened through a bloody and abusive government campaign
aimed at its suppression. Kenyan National Commission of Human Rights
alleges that Kenya's police summarily executed hundreds of suspected
Mungiki members in the process.
By most accounts it seems clear that the Mungiki have rapidly
rebuilt their strength in recent weeks and that they have done so
largely unchallenged by the police. It is not yet clear whether this is
due to some level of official complicity or if it has been possible
simply because the police are so badly overstretched trying to contain
the growing violence. There are allegations that highly placed
individuals close to the Kibaki government have helped reactivate the
Mungiki to help carry out violence against ethnic communities that are
broadly supportive of the ODM. Those allegations must be fully
investigated.
This emerging cycle of reprisals carried out in response to
violence in other parts of Kenya has the potential to perpetuate itself
independently of the direction of political events. Each new set of
clashes tears Kenya's rapidly widening ethnic divisions wider still and
ratchets up the level of public anger on all sides. The more this
violence spreads and takes on a dynamic of its own, the harder it will
be to bring a halt to, even if a political settlement is ultimately
reached between the government and the ODM.
The cycle of reprisal and counterreprisal has already seen
bloodshed spread to parts of Kenya that were peaceful in the immediate
aftermath of the elections. Many of the communities worst affected in
recent days, like Nakuru and Naivasha, were initially peaceful even as
Eldoret, Kisumu, and Nairobi's slums were burning. If a political
solution to the crisis is not reached soon, there is every reason to
worry that violence will spread to still new corners of the country,
becoming harder to contain as it draws more and more people in.
The impact of violence on affected populations
Hundreds of Kenyans have lost their lives in the bloody aftermath
of the elections; most estimates now put the total number of people
killed at above 1,000. But the impact of this violence on the
communities it has targeted extends well beyond the number of people
who have lost their lives.
The Kenyan Red Cross now estimates the total number of displaced
people to be 304,000. Entire communities have been uprooted. In many
communities around Eldoret every last Kikuyu resident has been chased
away and their homes destroyed behind them. We interviewed dozens of
people living in IDP camps in that area and the overwhelming majority
told us they did not think they would ever be willing to return to
their former homes. Unfortunately the reasons for that reticence are
only too obvious. In many communities around Eldoret, residents who had
burned down their Kikuyu neighbors' homes and run them off told us
flatly that they would murder anyone who attempted to return and
rebuild their lives. The same fears will be felt just as acutely by the
many communities of Luo, Luhya, and other groups that have been driven
from their homes by Kikuyu militias in other parts of Kenya.
There are dimensions to this catastrophe that have not yet been
uncovered. Most notably, widespread patterns of gender based and sexual
violence have accompanied the broader chaos in some areas but it is not
yet clear just how many women have suffered such attacks. Some experts
believe that the violence has led to a spike in HIV infections due to
sexual violence. Reports from several hospital mortuaries indicate that
large numbers of men have been forcibly circumcised or mutilated in
other ways before being murdered. And there are real threats of further
violence against people whose lives have already been torn apart. We
interviewed many people around Eldoret who said that they were planning
attacks on local displaced persons camps that had not yet been executed
only because those camps are guarded by police and military personnel.
But the fact is that the security forces are already overstretched and
the risk of violence against displaced persons is real. Two weeks ago
18 displaced people were murdered during an attack by armed militiamen
on an IDP camp at Kipkelion.
(3) Growing Polarization and Silencing of Dissent
Apart from the terrible impact of the violence itself the most
disturbing trend revealed by our investigations has been an
astonishingly deep and rapid polarization along ethnic lines across
much of Kenya. This trend has been fueled by concerted attempts to
spread disinformation and hate speech that legitimize further violence
in the eyes of many. Increasingly, human rights advocates and other
individuals on all sides who denounce ongoing violence have been
targets of intimidation and threats that have partly succeeded in
silencing moderate voices so badly needed in many communities.
This rapid polarization is illustrated vividly by the situation
around Eldoret. Following the initial burst of post-election violence,
false stories of horrible atrocities committed by local Kikuyu began
circulating by rumor and by SMS. Many of these stories bordered on the
absurd, but in many of the communities we visited the tales were
regularly cited in defense of the violence local residents had meted
out to their Kikuyu former neighbors. In one small village we
interviewed young men who admitted that they had helped burn down the
homes of all the Kikuyu families in the area. In defense of their
actions they told us they had heard that a Kikuyu man had attacked and
disemboweled a Kalenjin milk seller in another part of the Rift Valley.
Such stories follow a common pattern in that they generally concern
events purported to have taken place in communities far enough away
that local residents have no independent way of finding out that they
are false. In this, they display a significant degree of coordination.
In addition to justifying violence that has already taken place, some
disinformation is being spread with the goal of encouraging further
violence. In Eldoret we were confronted with rampant rumors that
displaced persons camps were populated almost entirely with armed
Kikuyu militia members who were planning brutal reprisals against local
Kalenjin communities. These rumors were patently untrue but they
appeared to succeed in generating considerable local sentiment in favor
of attacking the camps.
That disinformation has been combined with growing patterns of hate
speech to make violence seem acceptable to people in many communities.
In parts of the Rift Valley it has become increasingly common to hear
Kikuyu people referred to as ``inhuman'' due to their alleged
brutality. The same language has been deployed in reverse to justify
reprisal attacks carried out by Kikuyu militias in other communities.
All of this has combined with the stark brutality of ongoing
violence to polarize communities along ethnic lines to a much deeper
extent than had been the case prior to the elections. In many areas
people on both sides told us that they no longer believed it possible
to live with their former neighbors across the ethnic and political
divide. These sentiments are especially worrying in the longer term
because they will make it very difficult to reverse the ethnic
segregation that has resulted from the violence due to displacement in
many areas.
In the face of all of this, many Kenyans attempting to act as
voices of moderation have found themselves faced with threats and
intimidation when they try to speak against the violence going on
around them. This includes human rights defenders in all communities,
who have increasingly been verbally attacked for their perceived
failure to stand in solidarity with their own ethnic communities.
Prominent Kikuyu human rights activists have received death threats
after taking strong public stands against the fraudulent elections. SMS
messages and online petitions accusing some of being traitors to the
Kikuyu community have been circulated widely. In Eldoret, some of the
activists we worked with are now being threatened with violence for
their attempts at exposing and denouncing the violence that has been
carried out against local Kikuyu residents. Similar examples are
becoming more numerous. Beyond the immediate threat to the lives and
safety of these individuals, the trend threatens to contribute to the
spread of polarizing rhetoric and hate speech by silencing the people
best positioned to argue against it.
The Kibaki government has announced an effort to track the source
of hate speech spread by SMS and other means and this is a welcome step
so long as the investigations are impartial. It has also lifted a ban
on live broadcasts which is important because the ban was not only
illegal but also helped create a climate ripe for disinformation. It is
imperative that everything possible be done to stop the spread of such
incitement now; the longer hate speech and polarizing rhetoric are
allowed to take root without interference from competing points of
view, the harder it will be to reverse the damage and the easier it
will become to incite further violence across the country.
Resolving the crisis: Peace with accountability and justice
The first priority for Kenya is bringing about an end to violence
and attending to the urgent needs of the thousands who have been
affected by the crisis. But beyond a prolongation or worsening of civil
strife there is another immediate danger: The temptation to attempt to
secure short-term peace without addressing the real causes of the
crisis. Such an attempt would likely end in failure and would certainly
prove destructive in the longer term.
The international mediation effort led by Kofi Annan has
established the right framework for talks moving forward. Both sides to
the political dispute have agreed in principle that in addition to
taking urgent steps to end the violence, the underlying causes of the
crisis must be addressed. Annan himself has publicly insisted that any
agreement must ensure accountability for abuses on both sides along
with a credible process of reconciliation. The talks will also seek to
address the underlying issues that led the election to boil over into
violence.
The primary impediment to realizing the potential of this agenda is
Kenya's political leadership. Neither side has made any serious effort
to bring about an end to violence.
The government and the ODM leadership have both made public appeals
for peace but it is abundantly clear that this message has not filtered
down as a priority to the local leaders who continue to foment
violence.
The Kibaki government has until now reacted to mediation efforts
with cynicism and intransigence, clinging to the untenable position
that it won the election fairly and will, therefore, not contemplate
any settlement that does not legitimize its hold on power. Instead of
working to resolve the issues the Kibaki government has occupied itself
with using the violence as a tool to bludgeon the ODM leadership with
as-yet unsubstantiated accusations of sponsoring ethnic cleansing and
other international crimes.
Practically speaking, progress on resolving the election issue is a
prerequisite for progress on all of the other issues. The Kibaki
government clearly stands as the primary obstacle to addressing that
issue and must be pressured into giving ground so that broader progress
is also possible.
The Annan-led mediation process is the best hope of finding a way
out of this morass. It is also the only hope currently on offer; there
is no fallback plan if that effort fails. It is therefore imperative
that the international community, including the United States
Government, bring all possible pressure to bear on both parties to work
in good faith to find a lasting solution to the crisis. That pressure
should specifically be aimed at giving substance to what must be the
four key pillars of any viable political settlement.
(1) Leadership to End the Violence
It is not enough for political leaders on both sides to make public
statements denouncing violence. The leadership of both sides has failed
to forcefully communicate to their supporters that further violence
will not be tolerated, let alone encouraged. Supporters of both sides
have been actively involved in fomenting and organizing violence. As of
now we have no hard evidence that directly implicates the leadership on
either side in sponsoring these abuses but both should support further
investigations and prosecutions of any individuals who have played such
a role. Hollow public posturing is no substitute for real efforts to
rein in violence.
There is every reason to hope that a more sincere and urgent effort
to rein in violence on the part of both sides' leadership would have a
rapid impact. Around Eldoret, for instance, it was the universal
opinion of local civil society groups, community leaders and even the
people who had been carrying out violence that a clear signal from the
ODM leadership that the violence must stop would bring about its end.
Whether justified or not, as of now many of the people carrying out
violence on both sides across Kenya do not believe they are going
against the wishes of their political leaders. Until that changes the
political leadership on both sides will bear a share of the
responsibility for every life lost and every home destroyed.
This action must be immediate and unequivocal. A more robust effort
on the part of Kenya's political leaders to rein in the violence would
still achieve results. But it is not clear how long that will remain
the case. If the violence continues to spread and to take on a dynamic
of its own, leaders on both sides may lose all remaining power to
contain it.
(2) Electoral Justice
The violence raging across Kenya has fed on grievances that run far
deeper than the results of the Presidential election. Nonetheless it
remains true that any durable solution to the crisis must address the
spark that set it off. This is true for a number of different reasons.
The peaceful conduct of voting last December was a testament to the
fact that Kenyans believed it possible to effect change through the
ballot box in spite of all the underlying tensions that have now been
laid bare. If the electoral dispute is addressed through a political
bargain that does not uphold the democratic rights of Kenya's voters
many will lose their faith in the democratic process as an avenue of
peaceful change. And, moving forward, Kenya's Government will not be
able to heal the wounds the past few weeks have opened up if it is not
seen as legitimate and accountable to Kenya's citizens.
Just as importantly over the longer term, failing to restore the
integrity of Kenya's nascent democracy will have wider repercussions--
not just in Kenya but across Africa. Especially coming on the heels of
Nigeria's brazenly rigged April 2007 polls and with a looming electoral
charade in Zimbabwe at the end of March, an internationally brokered
deal that legitimizes a fraudulent election in Kenya will serve to
embolden would-be autocrats across the continent.
An immediate rerun of Kenya's Presidential election is not feasible
given the more urgent need for healing. The collapse of the electoral
process has also highlighted the need for key constitutional and
electoral reforms that must precede a new election. But the framework
that is ultimately agreed on should ensure a transparent and
independent investigation into what went wrong with the December poll.
It should also guarantee that a new election will result if that
emerges as the best way to ensure that Kenya's Government is elected
rather than the product of controversy and fraud.
(3) Accountability and Reconciliation
The underlying grievances and societal divisions highlighted by the
violence in recent weeks may have been fertile ground for violence, but
as discussed above, that violence was not simply the spontaneous
product of popular anger. Much of the suffering and bloodshed unleashed
in recent weeks was actively incited and even organized by individuals
in positions of responsibility and power. They must be investigated and
held to account for the crimes they have helped sponsor. That
accountability must also extend to the Kenyan police, whose crimes have
left bullet-riddled bodies piled high in mortuaries in Kisumu, Nairobi,
Eldoret, Mombasa, and elsewhere. Accountability for those most
responsible for all manifestations of Kenya's post-election violence is
the only way to ensure that violence will be remembered as an
intolerable aberration as opposed to a dangerous new trend.
At the same time, processes of accountability must be supported by
deeper efforts at reconciliation and truth-telling to heal divides that
have torn whole communities asunder. Kofi Annan called this week for
some form of truth and reconciliation commission for Kenya and for U.N.
investigators to look into the catalog of human rights abuses. The
Kenya National Commission for Human Rights has already launched an
investigation. Any further investigations should take care to support
and complement rather than undermine that effort.
(4) Addressing the Deeper Causes of the Violence
In the longer term, the broader context of the ongoing violence and
human rights abuse must be addressed. Comprehensive reforms to Kenya's
governance structures and laws are needed to redress grievances that
have simmered since colonial days, tackle endemic corruption and change
the zero-sum nature of political competition. The existing political
process is an opportunity to make progress on some of these issues. But
more than that, a process that does not guarantee changes in these
areas will not eliminate the danger of future bloodshed and will not
deliver the kind of peace and justice that Kenyans want and need.
Vice President Kalonzo Musyoka is scheduled to arrive in Washington
today. That visit will provide the administration with a perfect
opportunity to deliver its expectations in direct and public form and
to articulate the consequences that will follow if both sides do not
live up to their responsibilities.
Specific recommendations to the U.S. Government
Along with the African Union and Kenya's other international
partners, the U.S. Government has an important role to play in putting
pressure on Kenya's political leadership to negotiate a solution to the
crisis and to do everything possible to rein in violence while it is
still possible to do so. It is essential that what political leverage
international players have, be used to ensure that the Kibaki
government commits itself to negotiating in good faith with a view to
solving the crisis, something that they have made no significant move
to do until now. There are a number of ways that the administration can
put pressure on both sides to take action on key issues or provide
assistance in addressing them.
The administration should:
--Communicate to both parties that a negotiated solution to the crisis
must include, at minimum:
--An independent and public investigation into the allegations of
fraud that derailed the elections;
--A framework for constitutional and electoral reform aimed at
addressing underlying causes of the current violence;
--Accountability for those most responsible for fomenting and
carrying out human rights abuses on all sides since the
elections;
--A process of truth-telling and reconciliation as called for by Kofi
Annan;
--If the actual results of the Presidential poll cannot be
reconstructed, a guarantee of new elections after an interim
period sufficient to put credible polls in place and conduct
them in a peaceful manner.
--Publicly commit that sanctions will be put in place against any
political leader from either side who acts in a manner that impedes
a negotiated settlement. Sanctions could include visa bans against
political leaders and their associates. The U.S. Ambassador to
Kenya has publicly stated that anyone guilty of fomenting violence
would be denied visas along with their families. The threat of
sanctions should extend to those whose implication in human rights
abuses is credibly established.
--Support an international component to investigations into post-
election violence. This could include support for the work and
recommendations that will be made by the U.N. human rights fact-
finding mission due to arrive in Kenya shortly. The U.S. should
also call for international investigations to complement and
support the ongoing work of the Kenyan National Commission for
Human Rights.
--Push for the immediate publication of all available information on
the outcome of the election. The administration should urge the
International Republican Institute to publish polling data it
amassed during the election and should also urge the European
Union's election observation mission to publish its final report as
soon as possible. Suggestions that this information should not be
published to avoid inciting further violence are misguided and
undermine efforts to address the election issue during
negotiations.
--If Kenya's overstretched police force cannot adequately protect
Kenyans at risk of further violence, the administration should
press the Kibaki government to seek international assistance in
fulfilling that responsibility.
Senator Feingold. Thank you very much, Mr. Albin-Lackey.
Dr. Barkan.
STATEMENT OF DR. JOEL D. BARKAN, AFRICA PROGRAM, SENIOR
ASSOCIATE, CENTER FOR STRATEGIC AND INTERNATIONAL STUDIES,
WASHINGTON, DC
Dr. Barkan. You can hear me now? Time is short, so I'm
going to condense my remarks, you have my full statement for
the record.
They are basically grouped under four headings: The
elections in historical perspective, the political stalemate,
the violence and economic losses, third, the process for
breaking the stalemate, and what the U.S. should do to support
the Annan effort.
I want to pay particular attention to the third and fourth
points, and also perhaps--given the questioning of the first
panel--take some questions later about our democracy assistance
program, with which I have been involved with in the past,
particularly in Kenya.
As for the election itself, as you noted in your opening
statement, Senator Feingold, we had had three previous
elections, starting with one that was not very good in 1992.
There was improvement in 1997, still better in 2002--there were
great hopes this time that there would be another step up, and
this would, indeed, be the crowning achievement in Kenya's
torturous and long quest for democratic governance.
I think in retrospect, and the classic 20/20 hindsight, we
were a bit complacent and we need to acknowledge that. And as
you've seen in my statement, I've suggested three areas here
where we might have done a better job, particularly in terms of
scrutinizing the register of voters prior to the election, and
perhaps jumping on the problems there that were articulated by
the Chairman of the Electoral Commission himself.
Second, as Assistant Secretary Frazer noted, we placed
great emphasis on the Chairman, who is indeed a highly
competent individual, but it's the classic case of putting all
your eggs on an individual, rather than looking at an
institution. And there were 5 new Commissioners appointed
before the election and it's questionable about their
neutrality.
And finally, we expected that the domestic monitoring
effort, where the United States had put considerable resources
in recent years, would be as robust as it was, certainly in
2002, and sadly it was not. Not every polling station was
covered, and in fact, it was about the level that it was in
1997. It was also rife with divisions. Nonetheless, you should
if you have it available, look at the final statement by the
Kenya Domestic Observer form, because they lay out very clearly
where the election went off the rails.
Now, the final, perhaps, and most important point to be
made about the election, is why it's impossible to argue with
certainty that Raila Odinga won the election, it is possible to
argue with near certainty and evidence that Mwai Kibaki did not
win.
This was, obviously, a highly contested election. The
results, as the previous speaker noted, are illegitimate, but
they're illegitimate on both sides, and therein lies the nub of
the problem. Neither one of these individuals can govern by
themselves, there must be a power-sharing deal, and therefore
the real issue is: How do you move from where we are now to
such a deal?
At current, there is a stalemate, unfortunately, and it's
really almost a classic academic situation of whether this
stalemate will evolve into a mutually hurtful stalemate which
will make the hard-liners on both sides more forthcoming.
One might have thought that by now, President Kibaki who
relies for certainly the financial aspect of his political base
on the Kikuyu business community would have been more
forthcoming, because Kenya does have a robust middle-class and
business community, it is disproportionately Kikuyu and it
largely supported Kibaki in the elections. This group is
actually very frustrated that they can not get through to the
hard-liners, and that, in turn, suggests that more needs to be
done--particularly by the international community--to push
those people along.
My time is rapidly eroding. I want to turn next to the key
nub of the problem. It's constitutional reform, but we need to
focus very specifically on what we're talking about here.
It is not only the Imperial Presidency, as suggested by
Assistant Secretary Frazer, it is also dealing with a 50-year
issue as to whether and to what extent there will be a
devolution of power in Kenya, some sort of federalism, if you
will, that will accommodate the group rights of the various
smaller, ethnic minorities.
And until that's grappled with--and I lay out the various
points in my testimony that need to be settled in this regard,
I'm afraid there will not be a permanent peace in that regard.
Finally, what should the United States do? Well, I think we
need to be much more aggressive and it needs also to be
acknowledged that we got off on the wrong foot. We actually
congratulated the Electoral Commission of Kenya on Saturday the
29th of December, at the very moment that the election was
going off the rails. We congratulated the Commission on its
fine job--that was a misstep--we were behind the eight ball,
and we should have swung immediately behind the call by the
European community's observer delegation to support a forensic
audit.
The question is, Where are the ballots now, and can that
audit be conducted? I can address that in the question period.
The final point I want to make here is that we need to come
down very hard on the hard-liners. And here I'm talking
specifically of instituting with immediate effect, in
coordination with the EU and the U.K., travel bans and asset
freezes on the hard-liners, including members of their
families, because a number of these people are studying in the
United States and in Europe. More public diplomacy in support
of civil society, and also public diplomacy in support of a
group of 105 parliamentarians who have stepped up to the plate
here and are actually initiating their own initiative, a sort
of track two initiative, on their own.
We also need, perhaps, to be more aggressive in respect to
dealing with hate speech. And finally, I can discuss the aid
issue in the question period, but I would say now that our DG
program--while it has been in Kenya for 15 years--has been
running out of cash. We have an excellent program in support of
the Kenyan Parliament, it's begun to show results, but that
program is largely out of money now, and it's now cofinanced by
the British, who have stepped up to help us out, because we
haven't been devoting sufficient funds to what is, actually, a
success.
Thank you.
[The prepared statement of Dr. Barkan follows:]
Prepared Statement of Dr. Joel D. Barkan, Africa Program, Senior
Associate, Center for Strategic and International Studies, Washington,
DC
Chairman Feingold, Senator Sununu, thank you very much for inviting
me to appear before the Subcommittee on African Affairs this morning to
share my assessment of the current situation in Kenya and its
consequences for the future of democracy in that country, and in the
region. My knowledge of Kenya and its tortuous quest for democracy is
based on following its politics since my first visit to the country as
a student in 1962, my academic research, and my work there for USAID as
the first democracy and governance advisor in the early 1990s, and
subsequent work there for USAID and the World Bank.
Time is short so I am going to condense my remarks into a series of
bullets under four headings: (1) The 2007 elections in historical
perspective. (2) The political stalemate, violence and economic losses
that have followed the elections. (3) The prospects for breaking the
stalemate under the African Union mediation effort led by Kofi Annan.
(4) What the U.S. should do to support the Annan effort. Before doing
so, however, I want to commend you, Mr. Chairman, and your fellow
Senators for the resolution on Kenya passed by the Senate last Tuesday,
January 29. I hope this will encourage the administration to be more
proactive in its effort to encourage a negotiated and lasting
settlement to the current crisis.
The Elections in Historical Perspective: Expectations vs. ``20-20
Hindsight''
The elections which triggered the current crisis were the
fourth since Kenya returned to multiparty politics in 1992, and
were to be the crowning event in the country's 20-year struggle
to establish democratic governance.
Each of the two previous elections held in 1997 and 2002
were better than the one that preceded it, and the expectation
and hope was that the 2007 elections would also be better than
the last. The 1992 election--Kenya's first multiparty election
in 24 years--was a ``C minus'' election despite heavy
engagement by the United States. The playing field before the
election was not level. The electoral commission was neither
independent nor neutral. Opposition candidates were
continuously harassed. And there was widespread violence in the
western Rift Valley on a scale equal to that which has occurred
during the past month--nearly 1,500 killed, and roughly 250,000
Kikuyu settlers displaced from their homes in the western Rift
Valley. The one bright spot in that election was that for the
first time in Kenya's history, roughly 8,000 domestic observers
established a toehold in the electoral process with the active
diplomatic and financial support by the United States and like
minded donors.
The 1997 election was better but still flawed--a ``B minus''
election. It was also associated with violence but the number
of domestic observers nearly doubled, and the election was
preceded by a series of ``miniconstitutional reforms'' that
enlarged the electoral commission to include commissioners
nominated by the opposition and other reforms--most notably
that the then-President of Kenya, Daniel arap Moi, would no
longer nominate 12 members to the National Assembly on his own,
but on the recommendation from Kenya's political parties to
reflect the proportions of seats each party won in the
elections. This resulted in a near parity of seats between
government and opposition in the National Assembly. From that
point onward, Moi could no longer govern Kenya on his own. Most
notably, and with U.S. support, the National Assembly began to
emerge as a legislature to be reckoned with, and a check on
executive power.
The 2002 election was better still--a ``B plus/A minus''
election--the logistics were better; harassment of opposition
candidates all but ceased, all polling places covered by an
increasingly robust and sophisticated cadre of 24,000 domestic
monitors, and Kenya experienced its first alternation of
government via the ballot box (though not the defeat of the
incumbent President) since independence. That election brought
Mwai Kibaki to power as head of a broad based panethnic
coalition in which Raila Odinga campaigned tirelessly for
Kibaki and arguably won him the election. Unfortunately, their
alliance was short lived as Kibaki chose to rely heavily on a
small group of elderly cohorts from his own ethnic group, the
Kikuyu, and two related groups, the Embu and the Meru. The
result was both an ethnic divide and generational divide that
polarized the country and set the stage for the current
standoff. (For details see my 2004 article, ``Kenya After Moi''
in Foreign Affairs at www.foreignaffairs.org and my more recent
articles, ``Too Close to Call: Why Kibaki Might Lose the 2007
Election'' and ``Breaking the Stalemate in Kenya'' at
www.csis.org/africa which I submit for the record).
Notwithstanding Kenya's polarized political climate, the
expectations for the recently concluded elections were very
high. Although polls indicated that the election was too close
to call and that the temptation to engage in fraudulent
practices by both sides was therefore very high, most Kenyans
as well as the international community believed that the
leaders of both of the two largest parties [the Party of
National Unity (PNU) and the Orange Democratic Movement (ODM)],
and the Electoral Commission of Kenya (ECK) would rise to the
occasion. These expectations were based on five considerations:
(1) Kenya's fine record at democratization during Kibaki's
Presidency, arguably the best since independence. (2) The
country's resurgent economy. (3) The preelection campaign which
was largely "free and fair" though there were some isolated
incidences of violence. (4) The preparations for the elections
by the ECK and the near universal confidence in its chairman,
Samuel Kivuitu. (5) The expectation--especially by the
international community--that the effort by domestic monitoring
organizations would be as robust as in 2002.
In the aftermath of the elections and with ``20-20
hindsight'' we now know that the international community,
including the United States, was overly complacent about how
the polls would unfold in at least three ways: (1) The fact
that the register of voters was not fully purged of deceased
voters was largely ignored by advisors responsible for
following the runup to the election. With the voters rolls
inflated by 5-10 percent, a fact acknowledged by the chairman
of the ECK 3 weeks before the election, the prospect for
inflating the vote without getting caught was very real. (2)
Too much focus and emphasis was placed on the person of Sam
Kivuitu rather than the ECK as a whole. The international
community lobbied hard for his reappointment as chair of the
Commission to guarantee a well-administered poll, but paid
insufficient attention to the appointment of five new
commissioners by Kibaki or the procedures for reporting the
vote. (3) The international community also missed the fact that
Kenyan civil society failed to reestablish the robust
organization for domestic observation that it had mounted in
2002. (4) Last but not least, the United States failed to
respond quickly to the problems that unfolded during the 2 days
after the election. Indeed just the opposite. The State
Department issued a statement of congratulations to the
Electoral Commission on its handling of the election on the
very day--December 29, 2007--that the election came apart at
the seams. That statement was later amended on December 31.
I was in Kenya as an international observer for the
International Republican Institute (IRI) and witnessed what
most nearly all other international observers saw: An election
that was reasonably well administered on election day--the
polls opened roughly on time; the presiding officers were
adequately trained; there were adequate supplies of ballots and
other required materials; all or nearly all voters who wished
to vote did so by the time the polls closed; the counting of
the paper ballots at the polling stations was transparent. The
problem occurred in the tabulation of the vote at the ECK
office at each parliamentary constituency, and in the reporting
and tabulation of the total vote at the ECK headquarters back
in Nairobi.
Fraud in the form of inflating the vote was arguably
perpetrated by both sides, but there is little doubt in my mind
that it was far greater by supporters of President Kibaki. For
details, one can consult the statements and reports by KEDOF,
the Kenyan Domestic Observer Forum, and by the European Union
which mounted the largest (over 130 members) and most intensive
monitoring operation involving international observers. While
it is impossible to argue with certainty that Raila Odinga won
the election, it is possible to argue with near certainty and
evidence that Mwai Kibaki did not win. Indeed, Kibaki may also
have failed to meet the requirement that the winning candidate
received at least 25 percent of the vote in five of Kenya's
eight provinces, a test Raila Odinga easily passed.
Although the European Union rightly called for an
internationally supervised forensic audit immediately following
the election, it does not really matter at this juncture who in
fact won the election if in fact it can ever be determined.
Rather, the principal outcome of the election was that neither
Kibaki and the PNU nor Odinga and the ODM was supported by more
than 43-46 percent of the population. Neither side can govern
Kenya by itself.
That in turn means that some form of power-sharing deal is
imperative to resolve the current crisis.
Stalemate, Violence, Economic Loss
The political stalemate resulting from the elections is
slowly becoming a ``hurting stalemate,'' but until both sides
recognize the costs in both lives and economic losses neither
side will begin to negotiate seriously over a power-sharing
deal. This is the reality of the present situation and the
challenge to former U.N. Secretary General Kofi Annan as he
tries to mediate an agreement for the modalities of
negotiations. In the meantime the costs to Kenya mount.
The extent of the violence occurring across Kenya has been
vividly brought home by the international media, and by the
reports issued by such respected organizations as the Kenya
National Human Rights Commission, the Kenya Human Rights
Commission, Human Rights Watch, and the International Crisis
Group: More than 1,000 have been killed and more than 300,000
people displaced from their homes. Although the toll has only
now reached the total of the violence that occurred in the
runup to the 1992 elections, it is more widespread
geographically, and its perpetrators and victims are Kenyans on
both sides of the political divide and members of at least five
ethnic groups--the Kikuyu (especially in the western Rift
Valley and in the town of Kisumu), the Luo (in Nairobi), the
Kalenjin (in Nakuru and Naivasha), and the Luhya and Kisii in
scattered areas. While the initial violence immediately
following the election may have been spontaneous, it is clear
that most of the present violence is organized, politically
motivated, and conducted by informal militias and gangs.
The police have also clearly contributed to the current
situation of unrest. It is also unclear whether the police
including its paramilitary units have the capacity to contain
further outbreaks of violence. Rather it will require an
intensive effort at the grassroots by prominent political
leaders including members of the Kenya National Assembly (i.e.,
MPs) to persuade their followers to put down their weapons and
return to their homes. If there is a bright sign in the current
crisis it is that there is now such a group of 105 MPs known
the IPPG II,\1\ that is beginning to directly engage the
population in this way. The IPPG II is also committed to
enacting constitutional reforms to resolve the crisis and
achieve a lasting peace.
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\1\ IPPG II refers to the first Inter-Parties Parliamentary Group
(IPPG I) that diffused the violence and later passed a package of
``mini'' constitutional reforms prior to the 1997 elections.
The economic costs of the crisis are mounting at roughly
$500 million a week and now exceed all the economic aid that
Kenya receives annually. Kenya's thriving tourist industry is
all but dead. Kenya's horticultural exports have been adversely
affected as have Kenya's prospect for attracting foreign direct
investments to accelerate the growth of an emerging call-center
industry. Shares on the Nairobi Stock Exchange have dropped 25
percent while the Kenya shilling has fallen 13 percent against
the dollar. The ripple effects are spreading throughout the
region--to Uganda, Rwanda, eastern Congo, and the Southern
Sudan as these landlocked states cannot move their exports and
imports through the Port of Mombasa. Gas in Kampala, Uganda is
now reported to be $15 a gallon.
Breaking the Stalemate: Will the Annan Mission Succeed?
As indicated above, the current political stalemate will not
be resolved nor will a permanent peace be restored without a
negotiated arrangement for power sharing between the two sides.
What does power sharing mean? First, it does not mean a mere
sharing of positions in a government of national unity (GNU).
While this may be one mechanism for moving to a permanent
settlement it is not the objective of Raila Odinga and the ODM.
Indeed, they have been there before--following the 2002
election. Instead, any lasting power-sharing agreement will
require an agreement on institutions--the conclusion to Kenya's
long delayed quest for a new constitution, a quest that has
unfolded in fits and starts since 1992.
While the Annan mission has focused on four sets of issues--
(1) ending the violence; (2) dealing with the humanitarian
crisis; (3) dealing with the political crisis; and (4)
addressing long-term socioeconomic grievances--only the third
and the fourth will restore order. However, it is unclear
whether and how, under item (3) Annan and the rival negotiating
teams are focusing on three sets of constitutional issues that
must be ultimately be resolved. These are:
1. Establishing the institutional modalities to guarantee that
future elections in Kenya are ``free and fair'' and will not be
compromised like the just concluded poll. These include but are
not limited to: (i) The future method of appointment of members
of the Election Commission of Kenya, their terms of office,
etc. (ii) Procedures to insure the future accuracy and
integrity of the register of voters. (iii) Procedures beyond
the current procedures to insure the future accuracy and
transparency of the tabulation and reporting of the vote from
the polling stations to the public. (iv) Procedures for
auditing the vote should disputes arise. (v) The resolution of
other issues including the design of Kenya's electoral system--
whether it should retain the present system of ``first past the
post,'' whether more parliamentary constituencies should be
established, whether constituency boundaries should be redrawn,
etc.--also need to be determined.
2. Redressing the balance of power between the executive and
legislative branches of government. Although the Kenya National
Assembly has in recent years expanded its powers, Kenya remains
a Presidential system with most power concentrated in the
office of the President. Whether Kenya will now adopt a
parliamentary system of government as Raila Odinga has called
for in the past or whether there will be modest changes to the
constitution is hard to determine. The retention of a
Presidential system, however, will, at a minimum require the
repeal of the President's power to prorogue, suspend, and
dissolve Parliament, and a constitutional amendment that
specifies that MPs will henceforth be elected for fixed terms
of 5 years. Other outstanding issues are whether the National
Assembly will ratify judicial appointments, approve borrowing
by the government, as well as Parliament's role in the
budgetary process.
3. Devolution and Federalism. The most contentious issue is
whether and in what forum Kenya will be restructured as a
federal political system, and if so what the balance of powers
between the center and subnational units of government will be.
The issue has been the focus of all constitutional debates in
Kenya for more than 50 years, and must be resolved on the basis
of consensus and a negotiated settlement. Kenya is today a
centralized political system, and the continuation of this
arrangement is strongly favored by President Kibaki and the
PNU, and especially by the Kikuyu which are the largest (22
percent) and most prosperous of Kenya's 42 ethnic groups. Raila
Odinga and the ODM, however, favor some form of devolution as
the mechanism for accommodating the needs and addressing the
grievances of Kenya's other groups, none of which constitute
more than 12 percent of the population, and most of which are
poorer compared to the Kikuyu.
Discussion in Kenya over federalism or Majimbo as it is termed in
Swahili is highly emotional. It need not be, and the Annan
team, or its successor must diffuse the emotive aspects of
federalism by disaggregating it into its various components as
details to be negotiated and resolved. These include (i) the
number of regions or states to be established to accommodate
group interests; (ii) the assignment and balance of powers
between the Central government and the states; (iii) the
determination of boundaries; (iv) determination of the sources
of adequate revenue for the regions or states; and (v) the
rights of ethnic minorities residing within any new states or
regions. The experience of India and Nigeria suggest that the
resolution of these issues can go a long way in reestablishing
peace in a multiethnic and plural society.
It is unclear as of this writing whether the rival
negotiating teams representing the ODM and the PNU and meeting
under the guidance of Kofi Annan will reach agreement on these
issues. While the costs of the current stalemate are clearly
``hurtful'' to both sides, the main impediment to serious
negotiations and a viable agreement are the small group of
``hard-liners'' in both camps who still do not accept the need
for true power sharing to resolve the crisis. This is
especially true of the hard-liners around President Kibaki.
While Raila and ODM have informed Kofi Annan that they are
willing to negotiate the thorniest of issues to resolve the
crisis, the team representing the PNU have not. Indeed, their
modus operandi appears to be that of stalling for time.
Evidence of this intent is the PNU's rejection on Monday of
Cyrill Ramaphosa of South Africa, as the mediator to succeed
Kofi Annan and to hammer out a final agreement. What is
puzzling, and very disturbing is that as the human and economic
costs continue to mount, including costs to the Kikuyu business
community that has heretofore supported Kibaki, that the hard-
liners around him seem prepared to bear these costs.
What the United States Can and Should Do To Restore Political Stability
in Kenya
Although the United States was embarrassingly slow to
recognize the shortcomings of the elections, the two visits to
Kenya by Assistant Secretary of State Jendayi Frazer, and the
administration's coordinated effort with the United Kingdom and
the European Community to support the Annan mission are to be
commended. That said, we need to be much more proactive in
pressuring the hard-liners on both sides, especially those
surrounding President Kibaki and perhaps Kibaki himself to
engage on the most difficult issues. We must impress on both
sides that neither can govern until the issues outlined above,
including the need to amend or replace Kenya's current
Constitution are the basis for long-term peace, a return to
economic growth and democracy.
In this regard the United States should:
1. Articulate with greater specificity what issues need to be
resolved. This is not rocket science as they have been the
focus of constitutional discussions in Kenya for many years.
2. Offer technical assistance, as required, to facilitate the
negotiation of the details of the aforementioned constitutional
issues (especially on the contentious issue of devolution) as
well as the reestablishment and reconfiguration of the
electoral commission and electoral procedures.
3. Institute, with immediate effect, travel bans and asset
freezes on the hard-liners and coordinate such targeted
sanctions with the United Kingdom and European Union to insure
their efficacy. Extending such bans to family members of hard-
liners including those whose sons and daughters are residing in
the United States and Europe should be considered. The
possibility of targeting of the personal economic interests of
hard-liners within Kenya should also be explored and if viable
pursued.
4. Public diplomacy in support of Kenyan civil society to
pressure their leaders to resolve the crisis. This would
include support for such diverse groups as the Kenya Human
Rights Commission, the Kenya Private Sector Alliance, the Kenya
Association of Manufacturers, and the recently formed group of
more than 200 CEOs who are growing increasingly impatient with
the failure of the country's political leaders to resolve the
crisis.
5. Public diplomacy in support of the group of 105 members of the
National Assembly who have initiated the IPPG II coalition to
resolve the crisis. IPPG II represents a classic ``track 2''
opportunity and should be supported as it holds out the
prospect of moving faster than the Annan effort and passing its
own solutions in Parliament.
6. Continue public diplomacy by Ambassador Michael Ranneberger on
local FM radio, especially stations that broadcast to distinct
ethnic communities, to dampen down the violence. Step up
monitoring of such stations and consider selective jamming
those that broadcast hate speech. Explore what technical
assistance (i.e., software), if any can be provided to Kenya's
mobile phone providers such as Safaricom to block text
messaging that promotes violence between ethnic groups.
7. Suspension of aid? This should only be done as a last resort
recognizing that ``the aid card'' in Kenya is a much smaller
percentage of the Government of Kenya's recurrent budget than
it was during the 1990s when the international community,
including the United States, suspended aid on a number of
occasions to expedite political and economic reform. That said,
the importance of aid, both humanitarian and financial, will
rise as the economy declines and the revenues generated by the
efficient Kenya Revenue Authority decline.
Thank you Mr. Chairman for your affording me the opportunity to
discuss my views on this crisis.
Senator Feingold. Thank you, Doctor.
I want to note that Senator Bill Nelson has joined us, and
I'm pleased to have his participation.
And now we'll turn to Mr. Mozersky.
STATEMENT OF DAVID MOZERSKY, HORN OF AFRICA PROJECT DIRECTOR,
INTERNATIONAL CRISIS GROUP, WASHINGTON, DC
Mr. Mozersky. Thank you very much.
I want to express, once again, the appreciation of the
International Crisis Group for the attention of the committee
to the crisis in Kenya, and particularly the efforts of Senator
Feingold and Senator Sununu for submitting the recent
legislation on Kenya's electoral crisis and for organizing this
hearing.
The recent post-electoral violence in Kenya marks a
devastating setback to the advancement of democratization in
Africa. The past 5 years have seen Kenya strengthen its
democratic credentials, and grow and expand its economy. Kenya
has been a hub of stability in the region, leading peacemaking
efforts in neighboring Sudan and Somalia, accommodating
regional refugee flows, and hosting international diplomatic
and humanitarian efforts for the troubled region.
December's contested election has changed this dynamic,
unleashing waves of violence triggered initially by President
Kibaki's questionable electoral victory.
But the violence that erupted in the Nairobi and Mombassa
slums, and in the Rift Valley over the past 2 weeks has touched
deeper fault lines, and illustrates the depth of the wounds
created by Daniel arap Moi's divided rule policies during the
1990s, and the urgent need to address land and wealth
inequities.
Without a comprehensive and sustained high-level
international response, Kenya risks following many of its
neighbors toward becoming a collapsed or failed state. Led by
the U.S., the international community must push the parties to
end the violence, and allow a return to democracy.
For a comprehensive and sustainable solution, the starting
point of the negotiations must be the recognition of electoral
irregularities by both parties, and the invalidation of the
election results. The crafting of a power-sharing agreement to
guide a transitional phase leading to new elections then
follows.
The negotiation agenda for a period of transition should
not
only be about the sharing of executive powers between ODM and
PNU, but should include a complete institutional reform agenda,
including the creation of an effective oversight mechanism for
Parliament, and genuine independent judicial capacity to
counterbalance the powers of the Executive.
This constitutional overhaul should be accompanied by a
complete review of the electoral regulations, so as to prevent
any repetition of the December 2007 scenario.
Two instances of rigging appear to have taken place during
the vote tallying process--one at the constituency level and
one at the Central Electoral Commission. The first happened
throughout the country. With returning officers in their
respective home provinces who tampered with the vote count and
sent inflated returns for their preferred candidate.
The second was organized in Nairobi, within the Electoral
Commission premises. At that point, the results were changed
arbitrarily to give Kibaki a 230,000-vote victory.
Parliamentary results further suggest that the Presidential
election had been rigged. Kibaki's PNU won only 43 seats, while
ODM won 99 seats, 7 shy of an absolute majority.
Immediately after Kibaki's victory was announced,
spontaneous riots broke out across the country. Supporters of
the ODM turned their anger on those perceived to be supporters
of Kibaki--mainly members of the Kikuyu tribe. Hundreds were
killed in less than 24 hours.
The Rift Valley has been the region most affected by the
violence. There has been widespread violence in the north Rift
region of western Kenya, principally in Eldoret and the
surrounding districts, an ODM stronghold.
The violence in this region was triggered by the disputed
elections, but has its roots in a long-festering anti-Kikuyu
sentiment within certain segments of the Kalenjin communities.
It is possible that some of the violence was organized. A
militia called the Kalenjin Warriors, whose membership and
leadership is blamed for orchestrating much of the anti-Kikuyu
violence, seems to have been reactivated. Several senior
Kalenjin figures who were in power in the 1990s and who are now
ODM leaders, have been linked to this militia.
It also appears that some senior government figures have
been mobilizing the Mungiki sect, a Kikuyu religious cult with
a long history of brutal killings and organized crime. Many of
the gruesome killings which occurred in the Nairobi slums and
in the towns of Nakuru and Naivasha between January 24 to 27,
have been attributed to members of this sect.
Kenya is at risk of a speedy escalation of ethnically based
violence leading to pogroms and revenge killings all over the
country. The imbalance of power between an entrenched head of
state and a leader of the opposition, makes negotiations of a
political settlement difficult. A quicker, credible judicial
process to settle the electoral dispute is not available. ODM
likely calculates that in case the international mediation
fails, its only hope of keeping alive a political negotiation
will lie in its capacity to raise the stakes through violence
and civil disobedience.
Convincing Kibaki and the PNU to make concessions will
require external pressure, and guarantees that some of the
interests and the security of its constituencies--notably
Kikuyu businessmen, and the migrant communities--will be
safeguarded.
The U.S. should play a leading role in this respect, and
follow up its initial statement that business as usual would
not be tolerated, with a clear and direct pressure on the
individuals blocking the political process. Targeted sanctions,
including travel bans and asset freezes against hard-liners
influencing PNU decisionmakers in the corridors of power should
be considered. And aid freeze is a good political message, but
is unlikely to deliver rapid results.
Threats of international legal prosecutions against
individuals responsible for the crimes against humanity,
committed both in the Rift Valley and in Nairobi, should also
be considered. Including by bringing to Kenya representatives
of the Office of the Prosecutor of the International Criminal
Court.
External pressure alone may not be enough. The critical
additional factor is the business community. Creating
additional pressure for a resolution from the Kikuyu business
establishment should be supported. By having ODM provide
assurances about economic policies, commitment to liberal
reforms and to the provision of security to properties and
businesses established in the Rift Valley.
The challenge today is threefold. First, dealing with the
contested elections by negotiating a political transition,
leading to a new democratic election. An internationally
supported investigation should be carried out into the nature
and extent of the recent electoral theft, and aim at improving
upon the weaknesses of the last election.
Second, negotiating a political agreement on the
institutional arrangement to be set up for the transition
period, including power sharing between ODM and PNU within the
executive branch with the creation of the position of a Prime
Minister and the clear definition of executive powers,
particularly on the allocation of government resources, and the
appointment of senior government officials. A constitutional
amendment will have to be passed to institutionalize the
President/Prime Minister powers.
Third, urgent steps must be taken to end the violence and
reverse the dangerous rise of ethnic militias, and the momentum
of interethnic killings. An internationally supported Judicial
Commission of Inquiry should be established, with the mandate
to collect information on the responsibilities into the
violence and recommend the vetting of any politician and civil
servant found implicated in the perpetration of crimes against
humanity from holding any public office, pending the conclusion
of criminal proceedings.
Finally, a credible institutional framework and process
should be established for the negotiated disarmament and
dismantlement of all party-supported militias, and the safe
return of refugees and the internally displaced.
Thank you very much.
[The prepared statement of Mr. Mozersky follows:]
Prepared Statement of David Mozersky, Horn of Africa Project Director,
International Crisis Group, Washington, DC
I want to express once again the appreciation of the International
Crisis Group for the attention of the committee to the crisis in Kenya,
and particularly the efforts Senator Feingold and Senator Sanunu for
submitting their recent legislation on Kenya's electoral crisis and for
organizing this hearing.
The announcement that the incumbent President Mwai Kibaki was the
winner of Kenya's Presidential elections has plunged the country into
an unprecedented political, security, and humanitarian crisis. Within 4
days of the proclamation of the contested results by the Electoral
Commission of Kenya (ECK), protest riots, repression by security forces
and revenge killings by supporters of both camps had caused over 600
deaths and reportedly created over 250,000 internally displaced persons
(IDPs). By 5 January 2008, the United Nations estimated that up to
500,000 Kenyans were in need of food. The country's economy came to a
halt, and regional countries reliant on the Mombasa highway as their
main supply route suffered shortages of fuel and other essential
commodities. Beyond the loss of life, the loss for the Kenyan economy
was evaluated by Minister for Finance Amos Kimunya on 8 January as Ksh
60 billion, close to $1 billion U.S. dollars.
The violence that erupted in Nairobi and Mombasa slums and in the
Rift Valley illustrate the depth of the wounds created by Daniel arap
Moi's divide and rule policies during the nineties and the urgent need
to address the redistribution of land and other sources of wealth in
the country. There is no possible return to the business as usual and
laissez-faire attitude favored by Mwai Kibaki. Radical institutional
and economic reforms are needed, a legitimately elected government
should remain the goal and an internationally monitored transitional
justice and disarmament process will be necessary to heal the wounds of
two decades of interethnic violence and prevent its resumption.
The international community reacted swiftly to contain the crisis
and pressure Kenyan leaders to end the violence. After initially
endorsing the results, the State Department backtracked and questioned
their credibility. U.K. Prime Minister Gordon Brown called the rival
parties to exercise restraint, end the violence and supported mediation
efforts led by AU Chairman and Ghanaian President, John Kufuor.
Assistant Secretary of State for Africa Jendayi Frazer visited the
country to support the international efforts toward a settlement. A
first round of discreet shuttle diplomacy produced an agreement of
principles on the process necessary to obtain a political settlement.
However, hard-liners in the Kibaki camp prevailed over the President
and convinced him to disown the document.
The international pressure and other appeals for calm from national
leaders and civil society organizations led to a rapid halt to the
violence which lasted for several weeks, as tens of thousands of
Kenyans moved to unsupported and unsecured sites. By 22 January
however, a spiral of revenge killings resumed in the Rift Valley
bringing the death toll to over 1,000. All Rift Valley communities have
been affected. The Kikuyu settlers of the Nandi Hills were initially
targeted by Kalenjin youths supporting Raila Odinga's Orange Democratic
Movement (ODM), but the crimes against humanity committed by these
youths against women and children in and around the town of Eldoret
have since been replicated by the mainly Kikuyu Mungiki sect in the
towns of Nakuru and Naivasha, where Luo and Kalenjin women and children
have also been burnt alive. Kisii, Luo, and Luhya settlers of the Rift
Valley have also become the victims of Kalenjin youths, in a general
environment of total collapse of state authority
The situation in the country remains extremely tense and volatile
as the protracted political crisis endures. Before leaving Kenya, AU
Chairman Kufuor announced that former U.N. Secretary General and Nobel
laureate Kofi Annan, former Tanzanian President Benjamin Mkapa, and
former Mozambican First Lady Graca Machel would continue the
negotiation. Soon after their arrival on 22 January, the Annan team
convened a meeting between Raila Odinga and Mwai Kibaki. They committed
to a negotiated settlement to the crisis, and to the official beginning
of the negotiations at a later date based on a four point agenda: 1.
Ending the violence; 2. Ending the humanitarian crisis and guaranteeing
the resettlement of IDPs; 3. Finding a settlement to the political
crisis; 4. Finding solutions to the unequal distribution of land and
wealth in the country.
The Raila Odinga-led ODM, which won 99 of the 210 parliamentary
seats against 48 for Kibaki's Party for National unity (PNU), put on
hold its calls for mass action and for the boycott of Kibaki's
establishment businesses and products. Emboldened by national and
foreign electoral observer's conclusions that the Presidential polls
were rigged and the declaration of Mwai Kibaki's victory was
illegitimate, ODM has maintained that Kibaki should step down and its
leader Raila Odinga be declared the winner, or for a forensic audit of
the polls results and the organization of a rerun within a short period
of time.
Mwai Kibaki's PNU coalition, which includes the former ruling party
KANU, and now ODM-Kenya, third-place Presidential contender Kalonzo
Musyoka's group, benefits from the fait accompli and the powers granted
to the Presidency by the Kenya Constitution and is determined to gain
time. Its leaders have called on the opposition to petition the courts
and seek redress through the legal process. It accused ODM of having
planned and premeditated the violence, and maintains that the situation
is under control and there is no power vacuum in the country.
Although calm has partially returned and violence is now limited to
skirmishes in some areas of the Rift Valley, reports of militia
mobilizations and arming on both political sides have been confirmed.
Kalenjin, Luo, and Luhya gangs are being armed in the Rift Valley,
Nyanza and western Kenya, while the Mungiki sect has renegotiated its
support from the Kibaki establishment, and received finances and
weaponry to execute revenge killings against opposition supporters.
Both parties are gearing up for a possible violent showdown, which
would spread much further than the outburst of violence witnessed in
the immediate post-electoral period.
This violence has shattered Kenya's reputation as a haven of
stability. The grisly images that have emerged have illustrated the
fragility of a national fabric in which the disparity between the rich
and the poor remains one of the biggest in the world. Kenya will need
more than a political settlement to restore its people's trust in their
government and rebuild the foundations of a stable democracy.
I. THE RIGGING OF THE PRESIDENTIAL ELECTION
All national and international observers, including the Kenya
Democratic Elections Forum (KEDOF), EU, the Commonwealth Secretariat,
the East African community, and IRI, reported in their respective
statements that while the vote and count of the ballots at constituency
level largely took place in an orderly and satisfactory manner, the
tallying and compiling of the results proved highly questionable and
shed doubts on the validity ECK chair Samuel Kivuitu's announcement on
30 December.\1\ The best and most detailed illustration of the rigging
that occurred was provided in the testimony of four national observers
who participated during the night of 29 to 30 December, with ODM, ODM-
K, PNU party agents and five ECK commissioners in a review of the
contested results within the premises of the Kenyatta International
Conference Center (KICC) tallying centre in Nairobi.\2\
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\1\ Kenya Elections Domestic Observation Forum (KEDOF),
``Preliminary statement and verdict of the 2007 Kenya's general
elections,'' 31 December 2007; European Union Elections Observation
Mission (EUEOM), ``Preliminary statement: Doubts About the Credibility
of the Presidential Results Hamper Kenya's Democratic Progress,'' 1
January 2008; Commonwealth Secretariat, ``Kenya General Election 27
December 2007: The Report of the Commonwealth Observer Group,'' January
2008; East African Community Observer Mission, ``Report on the Kenya
General Elections December 2007,'' January 2008; International
Republican Institute, ``Statement on Post-Election Violence in Kenya,''
2 January 2008.
\2\ Kenyans for Peace with Truth and Justice (KPTJ) coalition,
``Countdown to Deception: 30 Hours That Destroyed Kenya,'' 17 January
2008.
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The delays in the announcement of Presidential results were the
first indicators reported by the parties, national and international
observers that irregularities were most probably going on. The
Presidential ballots are traditionally counted and tallied first in
polling stations and polling centers. Their late announcement, notably
after the parliamentary results had already been announced, raised
suspicions that the figures were being tampered with. The ECK chairman
claimed on Saturday, 29 December that he had lost contact with some of
his returning officers who had switched off their phones. He could not
explain the delays in providing the returns as some of the expected
results were from nearby constituencies, in Nairobi and Central
province.\3\ Under pressure from ODM agents pointing out that some
results being announced by the ECK's tallying centre at KICC differed
from those announced at constituency level, the ECK chair agreed to
have an audit of the results already announced with two political party
agents for each Presidential candidate and five national observers.\4\
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\3\ Crisis Group witnessed the statement.
\4\ During the audit, party agents agreed that the results of 44
constituencies already announced were untrustworthy, as they were not
supported by the adequate legal documentation. Nineteen additional
results were yet to be announced. The ECK file for Maragwa in Central
Province for instance, was presented to a national election monitor
with 16A forms bearing a consistent turnout for the Presidential
election of 115 percent for almost all polling stations. ECK officials
later decided to manually change these results and make them credible,
by reducing the figures to present ultimately a 85.27-percent turn-out.
Cf. KPTJ, ``Countdown to Deception,'' op. cit.
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Despite the blatant irregularities and anomalies in the reporting
of the Presidential results brought to his attention on 29 and 30
December, ECK chair Samuel Kivuitu announced the results of the
contested constituencies on the morning of 30 December, disregarding
the audit results performed during the night. He sanctioned as valid
results which appeared to have been tampered with.\5\ Sammy Kirui, an
ECK contractor participating in one of the tallying teams located
within the ECK national centre, came out to the media with ODM senior
leaders soon after the results announcement and explained how in his
team the results were indeed tallied illegally, unverified, unsupported
by the required statutory documentation (form 16, 16A, and 17) signed
or stamped by returning officers and confirmed by party agents, and
then transmitted to the computer room for compilation by his team
leader.\6\
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\5\ See for all details of the recorded irregularities by
constituency and the attitude of the ECK during that night, the
detailed log of events recorded by National obervers in KPTJ,
``Countdown to Deception'' op. cit.
\6\ Crisis Group interview with Sammy Kirui, Nairobi, January 2008.
Under threat, Sammy Kirui has been forced to flee the country.
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Two instances of rigging appear to have taken place during the
tallying process: One at constituency level and one at central ECK
level. The first happened throughout the country, with the posting of
returning officers by ECK commissioners in their respective provincial
strongholds, who tampered with the results of the vote count and sent
Nairobi inflated returns for their preferred candidate and deflated
results for his opponent. The discrepancies between results and
turnouts of the parliamentary and Presidential elections, the reported
expulsion of party agents from tallying rooms and the extremely high
turnouts (over 95 percent) recorded in some constituencies are the
signs of such rigging, both in ODM and PNU strongholds.
The second instance of rigging was within the ECK premises in
Nairobi. The results were arbitrarily changed to give Mwai Kibaki a
230,000 vote victory. The disappearance of returning officers in PNU
strongholds in particular, and the lack of either stamps or proper
signatures of party agents on the statutory forms presented in the last
2 days of the count are damning indications of rigging. From 29
December onward, senior ECK officials heading tallying teams and
running the computer rooms changed results coming from the constituency
tallying centers or endorsed results which had already been changed,
and gave instructions to subordinate staff to accept and compile them
without the supporting documentation.\7\ They succeeded in having ECK
commissioners and its chair announce questionable results which
ultimately reversed Raila Odinga's lead in the vote tallying and gave
the victory to Mwai Kibaki.
---------------------------------------------------------------------------
\7\ Crisis Group has seen copies of ECK statutory forms manually
corrected to increase Mwai Kibaki's returns.
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As reported by national monitors, it is almost impossible to
determine with certainty what would have been a faithful ballot
tallying. Rigging occurred both at constituency and central level and
only a recount of every ballot might be able to tell what the exact
election results are, provided the ballots may not have been tampered
with themselves. However, the discrepancy of 325,131 votes between the
total Presidential vote tally and parliamentary returns,\8\ just
slightly more than the margin by which Kibaki defeated Raila, and the
fact that results announced by the ECK at KICC do not tally with those
reported by the media and/or observed by KEDOF agents at the
constituency tallying centers casts a significant doubt over Mwai
Kibaki's victory.\9\
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\8\ It was of 50,192 votes in 2002.
\9\ KPTJ, a ``Countdown to Deception,'' op. cit.
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The day after the announcement, ECK officials publicly conceded as
much. Four commissioners issued a press statement on 3 December
recognizing that ``some of the information received from some of our
returning officers now cast doubts on the veracity of the figures.''
\10\ The chairman himself added on 1 January: ``Concerns about these
situations [i.e., turnout discrepancies and alleged irregularities]
cannot be dismissed off hand. They call for investigation.'' \11\ The
ECK officials, however, maintained that on 29 and 30 December, despite
the reported irregularities and inconsistencies, they had no other
choice than announcing the results as required by law, and that a
settlement of the dispute would have to be found in front of a court of
law. Alternatively, the chairman added ``if the parties in the dispute
so agree an independent impartial team of eminent men and women can be
empowered to study and inquire into the whole matter. It should have
the power to make a finding as to the effect of any anomalies it may
find. Their decision should be binding on the disputing parties.'' \12\
---------------------------------------------------------------------------
\10\ ``Press Statement'' by Amb. Jack Tumwa, D.A. Ndambiri, S.K.
arap Ngeny, J. Matagaro, 31 December.
\11\ ``Press Statement'' by S.M. Kivuitu, Chairman, Electoral
Commission of Kenya, parliamentary election results, 1 January 2008.
\12\ ``Press Statement'' by S.M. Kivuitu, op. cit.
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Kenya thus found itself on the eve of 30 December 2007 in the
middle of a dangerous political crisis. As Mwai Kibaki was hurriedly
sworn in at State House and flown to a coastal military base,\13\ the
Minister for Internal Security suspended all live media broadcast in
the country. ODM immediately rejected the results announced by the ECK
chair and refused to recognize Mwai Kibaki as the new President of the
country. It also dismissed election petition judicial procedures as
having no credibility, the judiciary being under control of the
incumbent President.\14\ Parliamentary results comforted the opposition
in its conviction that the Presidential election had been rigged. PNU
won only 43 seats--slightly over 20 percent of the total number of
elected seats in Parliament--with 18 of these seats being in Central
province and 25 in the rest of the country. ODM won 99 seats, 7 seats
away from the absolute majority. Twenty-three Cabinet Ministers lost
their seats, often to complete newcomers, and the official ECK results
named Raila Odinga the winner in six provinces out of eight.
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\13\ Crisis Group interview, Mombasa, January 2008.
\14\ In the case of Mwau Kibaki's petition against Daniela arap
Moi's election in 1997, the Court of Appeal decided to strike out the
petition 3 years after it had been filed because Daniel arap Moi had
not been served personally. ``Moi Petition Ruling Criticized,'' The
Nation, 23 November 2000.
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II. THE SECURITY CRISIS
Immediately after the ECK announcement, spontaneous riots broke out
across the country, mainly in Nairobi, Kisumu, Eldoret, and Mombasa.
Supporters of Raila Odinga turned their anger on those they perceived
to be supporters of Kibaki, mainly members of the Kikuyu Tribe. The
ferocity and speed of the violence caught many by surprise. Hundreds
were killed in less than 24 hours. Houses and shops were set ablaze.
Thousands of people began fleeing the clash-torn districts and towns.
By the second day of the riots, Kenya appeared to be back to the dark
days of state-sponsored ethnic clashes under Daniel arap Moi.
The worst of the violence, in which hundreds have lost their lives
and thousands have been displaced, stopped relatively rapidly. The lack
of preparedness and reaction from the security services in the Rift
Valley province however, raises questions about their complicity in the
attacks. The violence ended following calls by ODM leadership to stop
it, not because the police or paramilitary services intervened
efficiently to contain it.
A. Protest and Repression
Much of the violence was sparked off by the outrage felt by ODM
supporters who saw victory literally snatched from their leader on live
television. This outrage quickly took on an ethnic character with Luo
mobs venting their anger on their Kikuyu neighbors, and Kikuyu youths
quickly assembling for revenge against any non-Kikuyu in their
residential area. Nairobi's Kibera slum, a predominantly ODM stronghold
in Raila Odinga's own parliamentary constituency, was the epicentre of
much of the violence in the capital. Gangs of youth armed with machetes
and clubs attacked their neighbors. Shops, kiosks, houses, and garages
were set on fire. Close to 50 people were killed in the Kibera mayhem,
according to estimates by the Kenya Red Cross and other aid agencies,
mainly from machete and gunshot wounds. There have also been reports of
dozens of women raped.
Other slum districts of Nairobi with a mix of Luo and Kikuyu
residents, such as Mathare, Korogocho, Huruma, Kariobangi, and Dandora,
were also rocked by the violence. Dozens have been killed and police
have been deployed there in large numbers to separate the warring
groups. The officially outlawed Kikuyu Mungiki sect also emerged only
hours after the Presidential vote was announced, beheading and
mutilating Luos and Luyha residents in the Kariobangi and Karindundu
slum areas, near Korogocho. A police source told Crisis Group that on
the morning of 31 December, police officers from Kasarani Police
Station collected 38 bodies from the wider Kariobangi area, all
believed to be Luos forcibly ``circumcised'' and left bleeding to
death.\15\
---------------------------------------------------------------------------
\15\ 15 Crisis group interviews, Nairobi, January 2008.
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The role of the police in quelling the riots has been questionable,
with considerable evidence that officers have been taking sides in the
violence. Kikuyu youths in Mathare 4A area report that non-Kikuyu
policemen watched helplessly as their houses were torched and property
looted. The most police officers did, they claim, was to fire in the
air to scare away mobs. Non-Kikuyu victims make similar claims citing
numerous examples of people being hacked with machetes and their
property looted as policemen merely watched or mocked the victims. In
many cases, decisive action from the police came only when officers
thought their tribesmen or people who voted alongside their own
communities were under siege.\16\
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\16\ There are many exceptions. A police officer in charge of
Dandora Police Post is singled out by all interviewed, for ordering his
men to form a human barrier between combatants from the Luo and Kikuyu
communities. The officer managed to avert fighting between the Kikuyu
who reside in Dandora areas 1, 2, and 3 who wanted to attack their Luo
neighbors who dominate the area.
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One of the towns worst affected by the violence is the lake-side
town of Kisumu in western Kenya, the heartland of Raila Odinga. Again
most of those killed and displaced are Kikuyus, although scores of Luo
youngsters are said to have been shot dead by the police. The police in
Kisumu are blamed for contributing to the high number of fatalities. A
BBC reporter said he counted 40 bodies in Kisumu General Hospital
morgue, most of them with bullet wounds. Forty-four fatal casualties
from bullet wounds have been confirmed by the Nyanza General Hospital.
B. Escalation in the Rift Valley
The region that has been most affected by the post-election
violence in Kenya is the Rift Valley. There has been widespread
violence in the north Rift region of western Kenya, principally in
Eldoret and the surrounding districts. This region is another ODM
stronghold; the base of key Raila ally and opposition firebrand,
William Ruto. The new violence in the north Rift region, though
triggered by the disputed elections, has its roots in a deeply
entrenched and a long-festering anti-Kikuyu sentiment within certain
segments of the Kalenjin, particularly the Nandi and Kipsigis
communities, who felt aggrieved by the preference given to the
settlement of Kikuyu settlers in their home areas after
independence.\17\
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\17\ Daniel arap Moi, a Tugen from Baringo, was appointed Vice
President by Jomo Kenyatta in 1969 precisely to quell Nandi and
Kipsigis opposition to the settlement schemes that brought tens of
thousands of Kikuyu settlers into the north Rift Valley. The land which
was redistributed to the Kikuyu settlers and grabbed by senior Kenyatta
Government officials in the north Rift is part of the traditional Nandi
and Kipsigis homeland from which they had been forcibly removed by the
colonial powers to create space for the white settlers. After
independence, Nandi and Kipsigis landless peasants became deeply
aggrieved against Kenyatta and Moi as they believed they were being
submitted to a second oppression to the benefit of a new type of
foreign settlers, the Kikuyu. Throughout the seventies and eighties,
Moi only tolerated the rise of Nandi leaders if they accepted the land
aggiornamento he had sealed with Kenyatta. Others, like John Marie
Seroney in the seventies or Bishop Alexander Muge in the eighties, were
severely repressed or killed.
---------------------------------------------------------------------------
It is certainly possible that some of the violence was indeed
organized. A militia group called the Kalenjin Warriors, whose
membership and leadership is blamed for orchestrating much of the anti-
Kikuyu violence in the Rift Valley, seems to have been reactivated.
Several senior Kalenjin figures in power in the nineties, and now ODM
leaders, have been linked to this militia.\18\
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\18\ There are credible reports some of the youngsters who were
setting Kikuyu houses and shops on fire were brought by lorries to some
of the scenes of the attacks. There are also reports some of these
young men killed by the police were then found with ``wads of crisp
banknotes'' in their pockets. All these suggest there may have been a
level of logistical planning behind some of the violence in Eldoret and
the surrounding areas.
---------------------------------------------------------------------------
In other areas of western Kenya and the Rift Valley, underlying
motivations for the violence were not necessarily election related but
may also have been linked to the longstanding competing interests for
the access to land and jobs in the country. In Kitale, violence has
been directed mainly against the homes and food reserves of workers for
commercial farms, but has left the commercial infrastructure largely
untouched. Saboat Land Forces have reportedly driven out non-Kalenjins
(including Luhyas, Luos, Kikuyus) to take over their lands and jobs in
the Mount Elgon area. Kipsigis mobs targeted all non-Kipsigis workers
in the tea estates of the Kericho area, including Luos, Luhyas, and
Kisiis.
The violent hotspots in the Rift Valley like Burnt Forest, Molo,
Enosupukia, are old fault-lines where a complex mix of anti-Kikuyu
feeling, land hunger, poverty and government insensitivity has created
a veritable tinderbox, which explodes whenever politicians give the go-
ahead and provide the necessary logistical and financial support. What
makes the violence this time around different seems to be the amount of
anger and mutual resentment exposed by the election between the two
main tribes, the Kikuyu and the Luo, as well as the rise of Nandi
ethnic nationalism in the Rift Valley. This alarming increase in anti-
Kikuyu and anti-Luo feelings and Nandi determination to reclaim their
land and leadership in the Rift Valley, could eventually precipitate
further ethnic clashes unless urgent measures are taken to address the
root causes.
Credible sources have told Crisis Group that some senior government
figures have begun mobilizing the Mungiki sect, a Kikuyu religious
cult, with a long history of involvement in brutal killings and
organized crime. The plan, these sources say, is to equip and train the
Mungiki so that it can become a powerful auxiliary force for the
government. Already, many of the gruesome killings which occurred in
the Nairobi slums and in the towns of Nakuru and Naivasha between 24
and 27 January when the violence spiralled out of control, have been
attributed to members of the sect.
The return of Mungiki and the Kalenjin Warriors to the national
scene is sending dangerous signals to other politicians who might come
under pressure to revive their own defunct or ``sleeping'' militia
groups such as the Chinkororo (in southwestern Kenya), the Baghdad Boys
and the Taleban (whose membership is predominantly Luo). Kenya would
then be at risk of a speedy escalation of ethnically based violence
leading to pogroms and revenge killings all over the country.
III. THE SEARCH FOR POLITICAL SOLUTIONS
The imbalance of power relations between an entrenched head of
state and a leader of the opposition makes the negotiation of a
political settlement to the crisis extremely difficult. Kenya's
political and institutional forces are slanted toward and facilitate
the goals of the PNU coalition. The Kenya Constitution does not provide
a credible judicial process for the settlement of electoral disputes.
Once announced as winners, Presidential and parliamentary candidates
prepare themselves for lengthy court proceedings if election petitions
are filed, but in the meantime they enjoy all the benefits of being in
office.
A. The Balance of Forces
President Mwai Kibaki and his aides are firmly in control of the
state machinery. They have appointed most senior government officials
in the past 5 years--from judiciary to police, intelligence services,
administration and the army--and even if discontent may exist within
the lower ranks, the prospect of a mutiny, coup attempt or rebellion of
a section of the state machinery is unlikely at this stage. The most
significant disobedience that has and may still occur is a section of
the security services turning a blind eye on the violence or not
obeying orders.
The group that controls decisionmaking at State House,\19\ and
benefits from state patronage, seems determined to stay in office for
the next 5 years with little changes to its system of governance. The
PNU leadership's current strategy appears to have six components:
---------------------------------------------------------------------------
\19\ Five individuals are reputed to currently control access to
Mwai Kibaki and are responsible for the decisionmaking process:
Minister for Constitutional Affairs Martha Karua (Kikuyu), Minister for
Finance Amos Kimunya (Kikuyu), a frontman for hawkish businessman and
Nairobi University Vice-Chancellor Joe Wanjohi (Kikuyu), Minister for
Roads John Michuki (Kikuyu), former Minister of State for Defense
Njenga Karume (Kikuyu), and Presidential advisor Nathaniel Kang'ethe
(Kikuyu).
Tame the ODM bloc through the systematic use of force, extra
judicial killings, and intimidation, so as to provide a
demonstration of strength, and show ODM it should not expect
any concessions;
Claim that ODM prepared the Rift Valley violence long in
advance and that ethnic-based violence had always been their
agenda;
Give priority to finding peace and reconciliation while
maintaining that all electoral disputes can only be settled in
courts;
Restore a ``business as usual'' running of government, so as
to progressively weaken the internal and external pressure on
the government and increase its legitimacy through a lasting
fait accompli;
Invalidate any claim that the election results may be
illegitimate, using its allies within the electoral commission
and supporters within the print and electronic media;
Consolidate a political alliance with the leadership of the
central and eastern parts of the country (Kalonzo Musyoka, who
hails from eastern province, was appointed as Vice President
while reinforcing its own power base and giving it the edge
over its ``perceived'' enemies.
On the other side of the political realm, and despite its victory
in Parliament for the election of the speaker, ODM seems to have little
option but to use mass action, violence, and the internationalization
of the crisis to pressure the government. Its calls for mass action,
although not bringing large numbers of demonstrators on to the streets,
have produced enough negative images in the international media to keep
the international attention alive, maintain the travel ban decided by
tourist associations, and generate continuing international political
and diplomatic pressure. However, senior ODM officials are also
convinced that unless they hurt the Kibaki establishment where it
matters most--i.e., their sources of income and properties--they will
not agree to make any concessions. The ODM leaders know that time is
playing against them, and that they need quick progress to sustain any
chance of preserving the possibility of a power-sharing agreement.
ODM's negotiation strategy starts with the invalidation of the
Presidential results, the logical basis for their claim to a share of
the executive powers. Once the results are declared invalid and the
principle of a power-sharing agreement is obtained, they will be in a
position to consolidate and build a stronger majority in Parliament, as
they too would then have appointments and positions to distribute to
smaller parties, possibly to reach the two-thirds majority necessary
for constitutional review.
The ODM team has determined that at this juncture, the repetition
of the Rift Valley violence against Kikuyu communities would be
endangering its political legitimacy and weakening international
leverage on the government. But the situation on the ground remains
extremely tense, and the Kalenjin warriors are unlikely to easily
accept the return of the displaced Kikuyu families to pieces of land
they want to acquire. Similarly, Raila is under pressure from hard-
liners within his base in Kisumu to settle for nothing else but the
Presidency so that revenge can be obtained for the destruction suffered
in the recent spike of violence--and the perceived 40 years of
marginalization suffered by the Luo community in the country. Both
camps have their extremists and militias preparing for a new
confrontation. ODM calculates that in case the international mediation
fails, its only hope of keeping alive a political negotiation will lie
in its capacity to generate nuisance and create leverage through
violence.
B. Creating Leverage for a Political Settlement
Soon after the violence started a discreet attempt at securing a
political agreement between ODM and PNU was initiated with the support
of influential members of the Kikuyu business community, facilitated by
the World Bank resident representative, Colin Bruce. This negotiation
was already well advanced when U.S. Assistant Secretary for African
Affairs, Jendayi Frazer, arrived on 5 January. The signature of a
document detailing principles of agreement was planned the day of AU
Chairman John Kufuor's departure, on 10 January, to establish the basis
of a process designed to address the root causes of the violence, the
electoral dispute, and to provide a solution for a political
settlement. But before the signature ceremony could take place, the
hard-liners surrounding Kibaki prevailed on him not to sign and
terminated the deal.
This document provided two of the essential pillars for the
resolution of the crisis: An independent investigation into the
validity of the Presidential results, with recommendations on the
measures and timeframe to be respected to organize a rerun in the event
invalidity was found; and the negotiation of a power-sharing agreement
between ODM and PNU while the necessary reforms and preparations for
the rerun are being carried out.
In view of the atrocities already committed in the country, and the
risks of renewed violence through the mobilization of armed ethnic
militias, a transitional justice process as well as disarmament program
would be necessary additions in the short term. In addition, it is
necessary to address the plight of landless communities and reduce
tensions related to the settlement of migrant communities both in Coast
province and in the Rift Valley.
The missing elements to force PNU to make concessions are external
pressure, and guarantees that some of the interests and the security of
its constituencies, notably Kikuyu businessmen and migrant communities,
will be safeguarded. International pressure has already been applied
but needs to increase.
The U.S. Government should play a leading role in this respect and
follow up its initial statement that ``business as usual'' would not be
tolerated with clear and direct pressure on the individuals blocking
the political process. Targeted sanctions (travel bans and asset
freezes) against individuals influencing PNU decisionmaking in the
corridors of power should be considered. These sanctions should include
close family members, and the groundwork should be laid for the
possible international blacklisting of financial institutions belonging
to the establishment, if necessary. An aid freeze is a good political
message, but is unlikely to deliver results rapidly, if at all. Threats
of international legal prosecutions against the individuals responsible
for the crimes against humanity committed both in the Rift Valley and
in Nairobi should also be considered, by bringing to Kenya
representatives of the office of the prosecutor of the International
Criminal Court.
But external leverage alone may not be enough to achieve a
breakthrough. The critical additional factor is the business community.
Additional pressure from the Kikuyu business establishment should be
supported by creating bridges between it and ODM. In order to exercise
maximum pressure on the Kibaki clique, Kikuyu business leaders must be
given assurances about ODM's economic policies, commitment to liberal
reforms and to the provision of security to properties and businesses
established in the Rift Valley. It could be proposed that their
corporate representatives, including the Kenya Association of
Manufacturers and Kenya Federation of Employers be brought into that
part of the negotiation which would address the economic policy of the
transitional government.
The starting point of the negotiation remains the recognition of
electoral irregularities by both parties and the invalidation of the
election results. The crafting of a power-sharing agreement to guide a
transitional phase leading to new elections then follows. Politicians
on both sides are likely to be more interested in consolidating their
own share of power than providing the new foundations of Kenya's
democracy. Hence the negotiation agenda for a period of transition
should not only be about the sharing of executive powers between ODM
and PNU, but should include a complete institutional reform agenda,
including the creation of an effective oversight mechanism for
Parliament and genuine independent judicial capacity to counterbalance
the powers of the Executive. This constitutional overhaul should
similarly be accompanied by a complete review of the electoral
regulations so as to prevent any repetition of the December 2007
scenario.
The content of a comprehensive political settlement should
therefore include:
The launch of an internationally supported investigation
into the extent of the electoral fraud leading to
recommendations regarding: The impact of the fraud on the
validity of the announced Presidential and parliamentary
results; options for a settlement of the election dispute
(recount, retallying, or rerun); the identification of ECK
officers involved in the fraud so as to start judicial
prosecutions against them; the legal and constitutional reforms
necessary to prevent such fraud in the future and restore the
credibility of the Kenya electoral process, including detailed
procedures of appointment for ECK officials and other reforms
necessary so that the Kenyan judiciary becomes a credible
arbitrator of electoral disputes (procedures involved and
appointments of judges).
A political agreement on the institutional arrangement to be
set up for the period of transition during which the legal and
constitutional reforms necessary to restore democratic
governance in the country are going to be carried out,
including: A power-sharing deal between ODM and PNU within the
executive branch of government with the creation of a position
of Prime Minister and the clear definition of his executive
powers, particularly on the allocation of government resources,
and the appointment of senior government officials; the
distribution of ministerial portfolio between the parties; the
joint designation of key officials running the Civil Service,
Central Bank, Treasury, permanent secretaries, senior officials
running the police, the general service unit and the
intelligence services, provincial commissioners, and diplomatic
representatives. A constitutional amendment will have to be
passed for the above-mentioned institutional arrangement to be
institutionalized.
An agreement on the constitutional reform process to take
place during the transition, addressing the rebalancing of
power relations between the branches of government and the
necessary devolution of powers between the Central Government
and its local authorities.
An agreement on the economic policies to be implemented
during the period of transition, determined in consultation
with key economic stakeholders of the country.
An agreement on the precise framework and policies to be
implemented during the transition, to facilitate the
resettlement of IDPs and address the land grievances of
communities who supported the violence.
The establishment of an internationally supported judicial
commission of inquiry with the mandate to collect information
on the responsibilities in the violence that started on 29
December 2007 and recommend the vetting of any politician and
civil servant found implicated in the perpetration of crimes
against humanity from holding any public office, pending the
conclusion of criminal proceedings.
The establishment of an independent and internationally
supported Truth, Justice and Reconciliation Commission, to find
a long-term solution to the ethnic violence that regularly
rocks the country. This commission, which has already been
endorsed by the parties, should aim to provide accountability
and healing for the crimes committed in the post-election
violence.
The establishment of a credible institutional framework and
process for the negotiated disarmament and dismantlement of all
party-supported militias. Kenya cannot afford to have Kalenjin
warriors, Baghdad boys, and the Mungiki sect armed and
organized ahead of a new electoral contest. If these militias
are not effectively disbanded and disarmed, any new electoral
campaign would run the risk of renewed extreme violence.
IV. CONCLUSION
The uneasy calm that currently prevails in Kenya should not be
misunderstood for a return to normalcy. The country's protracted
political crisis is deeply entrenched and could easily lead to renewed
episodes of extreme violence. There is, moreover, more at stake in
Kenya than just the collapse of yet another African country. It is the
entire liberal agenda--economic and political--which is being tested.
If Kenya's economy and democratic process go down the drain, it could
create a sense of hopelessness throughout the Continent of Africa.
The regional consequences of the crisis have probably yet to be
fully understood. Kenya provides the platform for relief operations in
Somalia, Sudan, and is a key anchor for the long-term stabilization of
Rwanda, Uganda, and Burundi. Not only would the paralysis of its
infrastructure deprive these countries from access to basic
commodities, but they would also suffer in the mid to long term from a
sustained reduction of foreign investment and see their economic growth
seriously hampered. The quicker a solution to the crisis can be found,
the better the prospects will be for the entire region to recover and
the Kenyan people to regain hope in the future of their country.
Senator Feingold. Thank you all for your testimony, and let
me just mention that a number of people have arrived since we
began the hearing, many from Kenya. I want to welcome you on
behalf of this committee. We welcome you, we welcome your
interest, and I just want to reiterate that there's a wide
range of materials that we have included in the record that we
are considering, in addition to what you're hearing here from
the witnesses. I also want you to know that I promise to remain
engaged on this issue going forward, and I'm sure my colleagues
will, as well.
Let me begin the first round of questions.
Mr. Albin-Lackey, as you alluded to in your testimony, the
violence in Kenya in recent weeks has included what has
appeared to be spontaneous protests, as well as more organized
violence in the Rift Valley, which President Kibaki has claimed
has been orchestrated by Orange Democratic Movement party
officials. Have you seen evidence to indicate that the national
leadership of the opposition party was involved in planning or
carrying out this violence?
Mr. Albin-Lackey. No. We haven't seen evidence indicating
the national leadership of the ODM has been involved in
organizing this. But, at the same time, I don't think anyone is
convinced that there aren't people within the ODM leadership
who haven't been involved to one degree or another. Perhaps not
through actively organizing violence, but certainly through
inciting the kinds of divisions that have led to the violence,
subsequently.
It's something that we're still investigating, and more to
the point, the Kenyan National Commission for Human Rights is
just now launching a very large investigation that's looking
into responsibility for organizing and inciting violence across
the country, on both sides. And that is in addition to a team
that's being sent over by the Office of the High Commissioner
for Human Rights. And both of those inquiries working together
ought to be getting as much support as possible from the United
States, precisely in order to shed light on that question.
Senator Feingold. Do you think that the party leaders--Mr.
Kibaki and Mr. Odinga--have the ability to control the various
gangs that are creating havoc in some parts of Kenya and to
stop their violent attacks?
Mr. Albin-Lackey. It's an open question. It's certainly
probably the case that they had more of an ability to do that 2
weeks ago than they do today. And that as this violence starts
to take on a dynamic of its own, with reprisals fueling further
reprisals, and so on, their ability to put a brake on this is
diminishing.
I think that today it's still probably true that if the
leadership on both sides made much more of a serious effort to
try to reign the violence in, it would have a dramatic and very
rapid effect. But time is really of the essence there, and it's
not at all clear how much longer that will remain true.
Senator Feingold. There have been credible reports of
threats to numerous human rights defenders and prodemocracy
activists. What steps are needed to protect human rights
defenders and journalists and other civilians who are being
threatened, and is there any evidence that people within the
Kibaki administration are behind these threats? And who else
may be responsible here?
Mr. Albin-Lackey. There have been a lot of threats against
human rights defenders that are really part of a broader
climate of persecution of voices of moderation on both sides.
Human rights defenders and anyone else who has stood up in
opposition to violence taking place in many communities have
been targeted for threats, for intimidation and other efforts
to silence them.
Some of the people that we worked with in carrying out our
own research have been facing exactly those kinds of threats,
because they're seen as being overly sympathetic to the rights
of people on the other side.
All of that is part of what is, by all appearances, a very
organized effort to spread hate speech, including petitions and
SMSs accusing people by name of being traitors to their
community because of their work to uphold human rights. The
Kenyan Government has recently announced that it's trying to
investigate the origins of some of that. But frankly, that
investigation, to be credible, has to target both sides, and I
don't know that at this point the government can credibly
investigate both sides.
So, the Kenyan police have to actively try to protect
people being targeted for these reasons, and again, as in the
situation with the IDPs, the Kenyan government has to free the
Kenyan police to ask for assistance where they might need it,
in doing so.
Senator Feingold. Thank you, sir.
Dr. Barkan, you were in Kenya as part of the International
Republican Institutes Election Monitoring Team. Can you shed
some light on why the IRI's poll results have not been
published?
Dr. Barkan. You might ask IRI why they're not releasing the
poll. Their position is, is that the results are not yet
complete, that there are some methodological issues. My
understanding by those who actually conducted the poll are
highly competent and I question, really, the extent of the
problems.
I think there might have been some concern, initially, of
whether this might have contributed to the divisiveness and the
violence that's occurred, but my understanding about what the
polls contained is essentially another piece of evidence that
underlines the point I made in my testimony--that is to say
that neither side really commands the legitimacy over half of
the population, that it was an extremely close election, and
the question of who won or lost by 1 percentage point is not
really the issue here, and therefore the results of that poll
ought to be released to drive the point home that both sides
have to get together.
Senator Feingold. I'm pleased to hear you say that.
Doctor, in your submitted testimony, you stated that the
United States failed to effectively respond to the conflicts
that unfolded during the 2 days after the December 27th
election. What mistakes did the United States Government make,
and how do you account for these errors? What should U.S.
officials have done differently?
Dr. Barkan. Sorry, I thought you were addressing----
Senator Feingold. I was addressing you, Doctor.
Dr. Barkan. What we should have done differently? Well, No.
1, we should not have made the congratulatory message that we
did. I also think that we should have been much more proactive
in the period running up to the election. It's true, Secretary
Rice called both principals in the week preceding the election,
but I can tell you that is because Kenyans and, shall we say,
people here in Washington who follow Kenya, urged through the
channels that they had open to them, that the Secretary make
that move.
We could have probably done a much better job, as I also
said in my testimony, in terms of scrutinizing the record, and
we definitely, probably should have spoken out in terms of the
composition of the Electoral Commission. Because the five
Commissioners that were appointed by President Kibaki actually,
it was a retrograde step. Because there had been an informal
understanding in place, since the 1997 elections, repeated
prior to the 2002 elections that the opposition would be
accommodated with roughly half of the Commissioners, and that
they would be consulted, and they were not consulted this time.
We should have spoke out on that.
Senator Feingold. Thank you.
Mr. Mozersky, the last time I went to Kenya, the purpose
was to understand some other problems in the region, as well as
challenges facing Kenya. Kenya was a place we could go in
relative safety to learn about things happening in less stable
places like Somalia and Sudan.
Could you briefly address the regional impacts of the
current crisis, from a humanitarian, economic, and political
perspective?
Mr. Mozersky. Well, as you said, Kenya is the center for
humanitarian activities in Somalia, to a certain degree,
diplomatic activities in Somalia, and was, for a long time, the
center for humanitarian and diplomatic activities on Southern
Sudan, as well, although that's beginning to shift.
Kenya took the lead in brokering both the Somali peace
agreement, and the Sudanese peace agreement, and the crisis in
Kenya, one of the side effects, is that it is taking attention
away from implementation and followup in both of those cases.
Kenya was taking the lead in trying to organize a head of state
meeting on the situation in Sudan, on the implementation of the
comprehensive peace agreement that is now, I assume, off the
table indefinitely.
Likewise, in Somalia, the attention of much of the
diplomatic community in Kenya was split to also focus on
Somalia, and that has now shifted, I assume, almost entirely to
the crisis in Kenya.
So it--Kenya provided a hub for diplomatic efforts, both
regional and international diplomatic efforts for the crises in
the region. And it will now be much more difficult to provide
consistent and sustained attention on Somalia, on Sudan, out of
our existing operations in Kenya.
Senator Feingold. I think that that's a very important
point coming out of this hearing, for all of my colleagues to
realize, given the centrality that Kenya has had, in terms of
our policies in that region.
In your opinion, who is primarily responsible for the
disastrous direction Kenya has taken since December 27? Who
should face U.S. and international travel bans?
Mr. Mozersky. I think there's two sources--there's people
responsible for the violence and there are political leaders
who are holding up the negotiation process.
Just to repeat the point, and I think all of the speakers
have made it, the solution is not--or, the solution to the
problem is not only a power-sharing agreement and an end to the
violence. It's dealing with the electoral irregularities and
putting in place a process that will lead to a new, free and
fair election as soon as possible. And you have resistance
there, on that third point, from Kibaki's government, from the
PNU.
Kibaki was sworn in almost immediately, they're claiming
that they are now the sitting government in power, and any
complaints should be taken through the legal process. But there
is no credible--the opposition, at least, does not have
confidence in the credibility of the judicial system to address
that. And so that's where the international mediation has to
lead the negotiations. And from there, it's up to the U.S. and
other international actors to provide the leverage necessary on
the actors.
Senator Feingold. Thank you very much.
Senator Lugar.
Senator Lugar. Thank you, Mr. Chairman.
I appreciate the responses to the chairman's questions, and
I want to underline and get more information in this respect.
Essentially, you pointed out, Mr. Lackey, that you believe
that there were already political leaders in Kenya, preparing
for violence in the aftermath of the election. And I'm curious,
Secretary Frazer mentioned Mungiki as an organization that was
along militia-ethnic lines.
Some have wondered whether, in fact, there were any Muslim
activities that were involved in this? But, describe, if you
can, more specifically, who generated violence? Were there
specific groups, as opposed to a spontaneous uprising, just
ordinary citizens?
Mr. Albin-Lackey. Well, there have been a couple of
different phases to this, and there may still be more. But the
initial explosion of ethnic violence immediately after the
election was focused mostly in the Rift Valley. There--that's
where these land issues and deeper historical grievances that
lie at the root of why conflict boiled over so quickly and so
violently, are really most at play.
And there, much of the violence took the form of people
in--our own research focused mainly around a town called
Eldoret, which was the epicenter of that initial wave of
violence. And the predominant group in that area is the
Kalenjin, and there's a large minority population of Kikuyu
settlers who bore the brunt of the violence. Partly because
they were seen as supporters of Kibaki and the PNU, and partly
because of all of these underlying grievances there.
It was very clear that in the runup to the elections,
community elders, local politicians and others really primed
people for violence by telling them that if the election went
the wrong way, that was proof-positive that the results were
rigged, and that their reaction should be war. And the word
``war'' was used over and over again in many different
communities. And often, that's exactly what happened.
And after an initial--after the first day or two of post-
election violence, much of what followed was actually not just
incited, but organized by those same people. Different--people
from different small rural communities, in some cases came
together under the leadership of community elders and others
and attacked larger population centers.
And now there are some of those same communities, some of
those same leaders, trying to raise money to procure firearms,
trying to plan attacks on IDP camps and remaining population
centers.
After that, that violence then triggered a wave of reprisal
attacks in other parts of the country that essentially saw the
same violence taking place in reverse. And that's where this
Mungiki group has come into play, which is essentially a
bloody, a very violent criminal organization that the
government had been, quite brutally, trying to crush, in years
past.
And now there are very disturbing allegations that people
close to government have been reactivating the Mungiki sect and
using them to help organize some of these reprisal attacks
against people who belong to ethnic groups seen as supportive
of the opposition.
So, really there's--as the violence is spreading, the
number of parties who seem to be involved in organizing and
inciting it, is also growing, day by day.
Senator Lugar. Well, given that background, let's say,
hypothetically, the two leaders and their immediate followers,
at the upper levels, responded to mediation of Kofi Annan or
others, and said, ``Very well. We will both support a new
constitutional amendment,'' that you've discussed here as a
panel here today, that really gives more checks and balances,
perhaps even better ethnic background at the hustings, and so
forth, ``and furthermore, we will have another election, we
will run this whole thing again.''
Now, are the groups that you're describing going to be
satisfied as a matter of fact that another election is being
held, if in fact the outcome of the next election was the same.
And it's now transparent, the world is watching, and so forth.
What I'm trying to get at--are the underlying forces so
great that unfortunately, at this particular point in Kenya's
history, though we might have had greater foresight, the whole
world community might have thought more about this?
Nevertheless this happened. And forces have been unleashed that
even constitutional reform and another election--very
transparent and well-run--are not going to cure?
Mr. Albin-Lackey. Well, I think, if a new election is held,
I don't think anyone is arguing that it should happen tomorrow.
A lot of these issues have to be dealt with prior to that, and
one of the most central is that the people most responsible for
inciting and organizing this wave of post-election violence
have to be identified and held to account for what they've
done. Otherwise, the message will be that this is a new and
acceptable part of Kenyan politics, as opposed to an aberration
that has to be investigated, punished, and denounced on all
sides.
But, certainly there's no reason to think--in spite of all
of this chaos, it's important to remember that just at the end
of December, Kenyans all over the country turned out and voted
peacefully, displaying a faith in the democratic process that's
been shattered by the events over the past few weeks. And the
key is restoring that faith, and giving people a reason to
believe that their votes will count in the way they thought
they would in this last election.
Senator Lugar. And would that large majority of Kenyans who
came out to participate find, then, some conciliatory efforts,
some reconciliation of the upper levels to be helpful? What is
going to be required for this very large majority, hopefully,
of Kenyans to have this degree of confidence?
Doctor, do you have a thought about this?
Dr. Barkan. Well, the leadership has to be much more
proactive, in terms of going out in the hustings. And I alluded
to this group of 105 parliamentarians where now you have, shall
we say, middle echelon leaders, but nonetheless in peace, who
have literally gone back to their constituents and said, ``You
must cool it. This is counterproductive for all of us.''
And there was a clip on CNN the other day, showing one such
individual who is actually not known for his own tactics,
finally, in effect, coming to his senses and realizing that
this thing is getting out of hand.
But I think one thing needs to be said about the violence
in the Western Rift Valley--this is not new. There was violence
in 1992, where actually 1,500 people were killed in that area,
alone. There are historic roots here, given land tenure in that
area. Kikuyu migrants, some of whom going all the way back to
the 1920s--so there's a lot of history here, and that makes it
very difficult to repeal.
That said, it is reported that there are retired Kalenjin
Army officers, those who had been senior officers during the
Presidency of Daniel arap Moi, who were dismissed by the Kibaki
government, who are behind this. There is Mungiki, as was
mentioned, and I might suggest that perhaps we could do a much
better job investigating these organizations.
You asked about Muslims--my sense is that we devote all our
counterterror efforts to what's going on, on the Kenyan Coast,
and here we have this other, very real threat to Kenyan society
and the Kenyan state elsewhere, we pay insufficient attention
to it, or so it would appear. And we have our main regional
security office based in Nairobi, and the Embassy there, as you
may well know.
Senator Lugar. What are likely to be the effects, Mr.
Mozersky, of Kenya's proceeding--or maybe our own activities in
this direction, that we have sanctions on individual leaders?
And on persons we believe were responsible for trouble--in
essence, the United States itself takes these actions, and we
encourage other nations to do the same.
Likewise, if we encourage that there be the electoral
reforms that are being suggested--I think Mr. Lackey would say
too early to have another poll, you ought to let justice work
itself out, which may take some time also. It may be that we
come to the conclusion that another election is useful. Are we
likely to be effective in this respect? In other words, given
the dynamics of what is involved, is this a viable program, and
if it is, does it have to be international? What is the
influence of the United States, what is the influence of these
business leaders who we believe are giving jobs to Kenyans? Who
are making prosperity possible?
And I just underline, again, the chairman's thought--what
does the prospect of our outlining our own respect for Kenya's
leadership in Africa hold in these very difficult diplomatic
situations?
We haven't really gotten into an unraveling of all of the
things that may occur, but just having a visit, as our
committee did yesterday, with our new Presidential Envoy to
Darfur, Mr. Williamson. You see extraordinary complexity in
these situations, which are exacerbated by what we're
discussing today.
So, you know, what is our influence here, and how should it
be applied?
Mr. Mozersky. We have tried to put our effort behind the
Annan effort, because this is an African-led effort and I think
that is certainly the way to go. But we have to exert more
pressure. And the fact of the matter is we do not have that
many levers. It's important to recognize that the aid card,
which we played very effectively back in 1992 and throughout
the 1990s cannot be played, in part, because Kenya is not aid-
dependent. Although, with the economy declining, and their
revenues declining, they may soon will be.
But before all of this erupted, Kenya, Kenya's annual
budget was only 8 percent dependent on aid. In fact, a model to
other countries.
So, we have to look in other directions, so that's why I
mentioned in my testimony, the targeting the hard-liners,
perhaps publicly so--I indicated the names of those individuals
who are most suspected of being in those, in that category. We
have to investigate to be absolutely sure, so we don't falsely
accuse--there are actually, may be one person on that list who
shouldn't be there. But nonetheless, we should move forward,
and we should be more public about it.
Also, on hate speech--it's possible, this was, I mentioned,
Mr. Lackey--a lot of this is being spread through text
messages. I'm not sure whether software exists to block those,
by dealing with the cell phone companies, but we should
certainly explore that. Ambassador Ranneberger himself has been
on the radio--you were asking about the press in your previous
panel--there are actually 42 FM radio stations now, some that
are ethnically based. And on that level, speaking in the local
language, a number of things we could do there to get the
message of peace across.
Senator Lugar. Thank you, Mr. Chairman.
Senator Feingold. Thank you, Senator Lugar.
Senator Nelson, thank you for your patience. Please
proceed.
Senator Bill Nelson. Do you see a regional manifestations
and implications to this crisis of Kenya, outside of Kenya?
Dr. Barkan. Very definitely----
Senator Bill Nelson. Trace that, for the committee.
Dr. Barkan [continuing]. And the leaders in the region are
getting nervous.
Well, tracing it--one can go all the way back to Colonial
times. Kenya, Tanzania, and Uganda were a single unit, single
currency, if you look at the transportation grids, the fact
that Uganda is landlocked, gasoline in Uganda now is evidently
up to $15 a gallon. The trade routes go through Mombassa, into
Uganda, up to Southern Sudan, all the way to Eastern Congo and
all into Rwanda.
So, we have this huge area, and particularly with respect
to Southern Sudan, where we're trying to consolidate a peace
there, it's all affected, simply by where Kenya is
geographically located, and the fact that Kenya has the largest
economy in the region--more than the others combined.
Senator Bill Nelson. I'm curious, because you mentioned
Sudan--what's the linkage there? And the spillover?
Dr. Barkan. The linkage is----
Senator Bill Nelson. Either way.
Dr. Barkan. The linkage is in Southern Sudan, in terms of
the extent to which the government of the south, which has come
out of the comprehensive peace agreement--and that agreement
itself is very shaky. And the big question, of course, whether
it's going to hold--but you have to have a viable government in
the South, and it's based in Djuba, which is basically a bush
town--dirt roads leading up to there and most of the supplies
they get come from Kenya, up through northwestern Kenya and on
into Sudan, or up from Kampala, so their lifeblood of
supplies--humanitarian assistance, as well, ultimately is in
Kenya.
The main road between Nakuru and the Uganda-Kenya border
has been blocked, on occasion. And petrol supplies, as I
mentioned, the railway, there's been sabotage to the Uganda
railway. This is a very difficult situation, and President
Museveni, in fact, flew down to Kenya last week to make his
concerns known. But I might add, however, he appeared to be
tilting toward the support for the government.
Mr. Mozersky. Can I just add, on that point?
Senator Bill Nelson. Please.
Mr. Mozersky. If it's OK--in addition to the economic
impact, there's a political impact. The Kenyan Government was
the leader in the negotiation process that led to the
comprehensive peace agreement in Sudan, and has the chair
within Egad for the Sudan subcommittee. And Kenyan leadership
on Sudan is critical to see continued engagement from the
region on the implementation of the comprehensive peace
agreement.
The Deputy Chair of the Assessment and Evaluation
Commission, the main monitoring and oversight body of the
comprehensive peace agreement, it provides diplomatic support,
training to the Southern Sudanese--Government of Southern
Sudan, as well as assistance on security issues.
So the impact and implication--Kenya's involvement is a--in
Sudan--is a force multiplier, for lack of a better word, to the
general international efforts, to see the comprehensive peace
agreement implemented. And the domestic crisis in Kenya,
essentially removes them from playing a large role, an engaged
role, in Sudan and other regional crises, where they have had
the lead in the last number of years.
Senator Bill Nelson. And how about the economic
implications on the other countries in the region?
Mr. Mozersky. Well, I think it's largely--as Dr. Barkan
pointed out--the most affected will be those who are reliant on
goods and services that come through the Port of Mombassa. So,
Uganda, by extension, and then Southern Sudan, as well. And the
problems will only multiply as time goes on. Already there's
been a sharp rise in the cost of commodities, and cost of
petrol, and it will only get worse as time goes on.
Senator Bill Nelson. You all talked about the process of
mediation. Are there other international participants that you
think would move the process of peace discussions along?
Dr. Barkan. Well, Kofi Annan has not intended to stay in
Kenya forever. He's really engaged in talks about talks. And
one key to the mediation is finding an appropriate individual
to take over--who really knows the technical issues--about some
of the questions that I indicated in my presentation,
particularly this issue of devolution, which is an extremely
emotive one in Kenya. It can be reduced to a series of
technical questions to facilitate a deal, but you need a very
skilled negotiator, supported by a team of people, such as
economists, who know about revenue-sharing and block grants,
and all of this sort of stuff that we deal with here.
The United States, perhaps, can provide that, and the
broader international community can encourage the negotiations.
But just this week, Cyril Ramaphosa--who was arguably the
most qualified African to take over from Annan, because he's
done this before, in Northern Ireland, and particularly in 2
years of hard negotiations in South Africa was basically
rejected by the government.
And I think that really underscores the point that all of
us have made in one way or another--that the government is
basically stalling for time, think they can ride this thing
out. At best, they can do so for awhile, but in terms of the
long-term solution, it won't work.
There are Kikuyu, just to finish here, who are terribly
fearful that if this keeps up, Kikuyu will be completely pushed
out of the Rift Valley. That the natural homeland of the Kikuyu
people, the largest ethnic group in Kenya, will basically end
at Limuru or the Rift Valley about 20 miles north of--west of
Nairobi, and the whole country will become zoned. Somehow, we
have to get across to these people that they must make a deal.
Senator Bill Nelson. Well, if you were President, what
would you do? [Laughter.]
Dr. Barkan. President of----
Senator Bill Nelson. If you were President of the United
States, what would you do? To make a deal?
Dr. Barkan. Well, I would urge President--what?
Senator Bill Nelson. You said you've got to get these
people to make a deal. So, what would you do if you were
President?
Dr. Barkan. I think we know, given the analogy that often
it's very difficult to make a deal, even here.
Perhaps the President, that is to say, President Bush, can
call up the principals--I don't think he's done so, yet, to my
knowledge, maybe there was one instance. But you had a parade
of people into Kenya, including Ban Ki-moon just this week, and
what you see here is almost tone deaf. So, it's very
frustrating.
I think only until these individual hard-liners are hurting
personally--their families, their respective economic
interests, and that might take some time--that they will become
more flexible. How you hasten that, again, we have limited
arrows in our quiver, it will also have to be coordinated with
the EU. Because, simply us doing a travel ban, asset freezes,
et cetera, is not going to be sufficient.
Senator Bill Nelson. And you're talking about hard-liners
on both sides?
Dr. Barkan. I'm talking about hard-liners on both sides,
but I think you can tell by, from my remarks, I'm suggesting
that they are disproportionately on the government side.
The hard-liners on the ODM side are those who are behind
the violence in the Rift Valley. Not hard-liners who do not
want to reach a power-sharing agreement--they've actually
presented a list of what they want to Kofi Annan and among
other things, they based that on a parliamentary committee--the
Committee on Justice and Legal Affairs, that came up with a
package of minireforms just last July. And which actually are
fairly modest steps.
But the real negotiation, it's the government that needs to
be pushed.
Senator Bill Nelson. Final comment that I would like you to
sketch for us. If the chaos continues in Kenya, and the chaos
continues between Sudan and Chad--that portion of the world--
that makes it very difficult to advance the interests of the
United States, does it not?
Dr. Barkan. Without a doubt. We have very large assets in
Kenya, one that's probably not even known is a large CDC
facility in Kisumu--200 research specialists there. That place
is all but shut down, and a good friend of mine, his daughter
was a doctor there, she's a Kikuyu, heading a research staff of
80 people--she can't go back. Trashed. We have our Regional
Security Office there, the United States Department of
Agriculture--even the Library of Congress, counterterrorist
efforts, et cetera, et cetera. It's our largest Embassy and
operation in sub-Saharan Africa.
Senator Bill Nelson. Mr. Chairman, and Mr. Chairman
Emeritus over there, you know, earlier last year I tried to go
to the Sudan, they would not let me in, so I went in the back
door. But to get from Ethiopia to Chad, I had to go all the way
around. I had to--because they wouldn't let us overfly, Sudan,
I had to go all the way down, across Kenya, and around the
southern end, and then up into Chad, that way. And, you know,
here we have now Sudanese rebels attacking Chad's Government,
and Chadian rebels attacking the Sudanese Government, creating
conditions that are so much worse than what was already
absolutely one of the worst situations that I've ever seen, of
the refugees from Sudan, over in Chad. And then Chad refugees,
in additional refugees camps in Eastern Chad.
And now, next door, they've got all of this problem. So,
this could be a real flashpoint in Africa.
Senator Feingold. Throw in Somalia, and we are in a world
of hurt, as we say in Wisconsin.
Let me thank the witnesses, and my colleagues. I hope
everybody here realizes, we had four Senators who spent a great
deal of time on this, because we're very interested in Kenya's
fate and its implications for the region and the continent.
Senator Sununu is very engaged in this issue as well.
There's also another member of the subcommittee, since the
question was asked, what would your advice be, Doctor, if you
were President--he is also a member of this subcommittee, he
has more than a passing interest in Kenya, but he's extremely
busy--Senator Obama. [Laughter.]
And I'm sure he would want his good wishes conveyed to you,
as well.
Thank you very much, that is the conclusion of the hearing.
[Whereupon, at 11:30 a.m., the hearing was adjourned.]
----------
Material Submitted for the Record
Testimony of Gregory Gottlieb, Deputy Assistant Administrator, Bureau
for Democracy, Conflict and Humanitarian Assistance, Department of
State, Washington, DC--Before the House Subcommittee on Africa and
Global Health of the Foreign Affairs Committee, Wednesday, February 6,
2008
THE POLITICAL CRISIS IN KENYA: A CALL FOR JUSTICE AND PEACEFUL
RESOLUTION
Thank you Chairman Payne, Ranking Member Smith, and members of the
subcommittee for the opportunity to appear before you and to discuss
USAID's provision of humanitarian assistance to the people of Kenya who
have been so greatly affected by post-election violence.
The Kenyan people have been caught in the middle of indiscriminate
violence that erupted across the country following disputed
Presidential election results in December. Tension between supporters
of President Mwai Kibaki and opposition candidate Raila Odinga resulted
in violence and looting--causing deaths, displacement, damage to homes
and small businesses, and disruptions in commercial and humanitarian
traffic.
Insecurity and roadblocks also interrupted cross-border trade and
the delivery of humanitarian assistance between Kenya and Somalia,
Uganda, Sudan, and the Democratic Republic of the Congo. The episodes
of violence, looting, and displacement have evoked tensions from
previous Presidential contests in 1992 and 1997, and reignited
longstanding grievances ranging from land tenure to constitutional
reform.
The areas that have been most affected by the violence include
Nairobi and portions of Nyanza, Western, and Rift Valley provinces.
While early incidents occurred in areas where groups supporting
President Kibaki live in close proximity to supporters of opposition
candidate Odinga, subsequent clashes have taken on a more organized and
worrisome character.
It is important to view the current situation in the context of
Kenya's strong economic growth and development over the past 7 years.
Kenya Before Post-Election Violence
The USAID program in Kenya is one of our most mature development
programs in Africa, with economic cooperation going as far back as
Kenya's preindependence in the late 1950s and early 1960s. USAID has a
substantial program in Kenya, as it is the linchpin for trade and
economic development throughout East and Southern Africa. The
overarching goal of USAID assistance is to build a democratic and
economically prosperous Kenya by assisting the country to improve the
balance of power among its institutions of governance, promoting the
sustainable use of its natural resources, and improving rural incomes
by increasing agricultural and rural enterprise opportunities.
USAID assistance is also used to improve health conditions, provide
access to quality education for children of historically marginalized
populations, and promote trade and investment development programs. In
FY 2007, the U.S. Government provided over $500 million in assistance
to Kenya, of which $368 million was PEPFAR funds.
When it comes to emergency assistance to Kenya--with the exception
of our assistance after the bombing of the U.S. Embassy in Nairobi in
1998--the focus has historically been on short-term response to
incidents of drought and floods, as well as episodes of civil unrest.
Since 1997, Kenya has experienced several seasons of failed rains that
caused widespread crop failure and water scarcity. Then there were
years when flooding destroyed crops, farmland, livestock, and damaged
roads and infrastructure. Cumulatively, the intermittent crises have
exacerbated vulnerabilities arising from politically motivated
interethnic conflicts over land, scarce water, and pasture resources.
Quoting from the Congressional Budget Justification for FY08,
``Kenya has the potential to become a transformational country and
achieve improved standards of living, improved quality of life, and
more transparent, less corrupt and more participatory democratic
governance.''
While Kenya seemed mostly on the right track prior to the
elections, the events that followed suggest that underlying political
grievances, corruption, and an imbalance in power among branches of
government were too deeply rooted to prevent the current destruction
and violence.
Current Situation
The situation in Kenya is extremely fluid and continues to change
on a daily basis. Beginning on January 23, violence escalated in
previously affected areas, and spread to new locations including
Naivasha and Nakuru towns. Even those already displaced are targeted.
The Government of Kenya's National Disaster Operations Center has
confirmed 895 deaths resulting from post-election violence as of
January 28, including 165 deaths since January 23.
The USAID assessment team has received multiple reports of threats
to groups sheltering at police stations, schools, churches, and other
settlement sites. Multiple sources point to the retaliatory nature and
interconnectedness between violence in Nakuru, Naivasha, and renewed
attacks in other areas, and USAID staff are concerned about the
potential for further deterioration in security and humanitarian
conditions.
Escalating insecurity, attacks on commercial trucks and passenger
vehicles, and the destruction of rail lines has repeatedly blocked
ground transport in western Kenya and threatens to obstruct major
access routes within Kenya and to neighboring countries. The U.N. World
Food Program (WFP) reports that insecurity prevented all fuel exports
from Kenya to Uganda, Rwanda, Tanzania, Burundi, Southern Sudan, and
the Democratic Republic of the Congo on January 28. Local media report
that fuel prices have risen 300 percent in Uganda in January.
Beyond the immediate humanitarian impact, the post-election crisis
has significantly impacted people's income-generating activities and
resulted in substantial livelihood and asset losses. The World Bank has
estimated that up to 2 million Kenyans may be driven into poverty from
the effects of violence and political upheaval following the disputed
election results.
Burned fields and businesses, unharvested crops, market
disruptions, and looting are expected to have long-term consequences.
Kenya's tourism industry, which represents approximately 25 percent of
the economy, agricultural sector, small businesses, and casual laborers
are most affected. The tourist industry has almost completely come to a
standstill, and up to 120,000 people may lose their jobs in this sector
before the end of March. Such losses will mean decreased income and
increased food insecurity for the millions of Kenyans who live without
a financial safety net.
Response priorities must adapt to reflect changes in the size,
location, and duration of displaced and vulnerable populations. As of
late January, the political crisis remains unresolved, and relief
agencies are reporting widespread fear of reprisal attacks and
reluctance among some internally displaced persons (IDPs) to return
home. Medium and long-term response strategies must address economic
recovery, social reconciliation, and possibly include the resettlement
and relocation of IDPs unable to return home. Further assessments are
expected to inform planned recovery, reintegration, and reconciliation
activities.
Displacement
Although media reports indicate that as many as 300,000 people have
fled their homes and found temporary shelter in camps or with host
families, USAID field staff note that efforts to quantify Kenya's newly
displaced population are complicated by insecurity, continued
movements, and unpredictable access to affected areas. In addition,
many IDPs have been absorbed by host communities, and mechanisms to
identify, locate, and track these vulnerable populations are not yet in
place. The recurring cycles of violence are likely to impact IDPs'
decisions regarding future movement and the possibility of returning
home.
USAID is concerned by an emerging trend of camp closures and
evictions of internally displaced persons in Kenya, which contravenes
widely accepted humanitarian principles. USAID staff have received
multiple reports of local officials attempting to close temporary
settlement sites currently hosting IDPs without establishing an
alternate settlement option, providing transport out of the area, or
giving advance notice to the humanitarian relief community. In
addition, our team has received reports of increased threats against
IDP populations who have settled at police stations, schools, churches,
and temporary accommodation centers in Rift Valley, Nyanza, and Western
provinces.
Protection is of the utmost concern, particularly for vulnerable
groups such as women, children, and elderly persons. Concerns range
from the potential for further violence, a reported increase of sexual
and gender-based violence in recent weeks, and vulnerabilities
associated with dense temporary settlements in a context of heightened
intergroup tensions. Longer term issues include assisting victims and
witnesses of violence to recover from psychological and medical trauma,
and providing appropriate counseling and psychosocial services,
particularly to affected children and adolescents. USAID has
prioritized the funding of protection-related activities and is working
with implementing partners to incorporate protection strategies across
all programs for the post-election crisis.
UNICEF estimates that between 80,000 and 100,000 children now live
in camps for the internally displaced. Renewed violence beginning
January 23 has led to an overall decline in school attendance,
particularly among primary school children, and the Ministry of
Education is reporting a shortage of teachers willing to report to work
out of fear for their personal security. The violence will have a long-
term impact on the lives of many students.
Humanitarian Needs
USAID staff reports that the international humanitarian community
is meeting the immediate needs of Kenyans displaced by the violence.
However, additional support is needed to meet evolving needs in camp
management, health, nutrition, protection, conflict mitigation, and
early recovery over the next 12 to 18 months.
Camp coordination and camp management
The Kenya Red Cross Society (KRCS) and UNHCR are working with other
aid agencies to identify gaps and assist with training, technical
support, and information management, as well as to provide psychosocial
support to IDPs and refugees residing in camps.
Early recovery
Beyond the immediate humanitarian impact, the post-election crisis
has significantly impacted people's income-generating activities and
resulted in substantial livelihood losses. Burned fields and
businesses, unharvested crops, market disruptions, and looting are
expected to have long-term consequences. Host communities are
stretching limited available resources to meet the needs of IDP
populations, yet this approach will be limited without substantial
support from the international community. In addition, all programs
should be designed with the ongoing conflict in mind, and should engage
affected populations to minimize, address, reduce, and/or mitigate
tensions and conflicts.
Health
UNICEF, in collaboration with the Kenya's Ministry of Health, is
addressing health needs throughout violence-affected areas and
conducting polio and measles immunization campaigns in all IDP sites.
USAID staff visited the GOK-managed Nakuru health clinic, which has
provided emergency and referral health services to more than 4,000
patients since January 4. According to health staff, diarrhea,
respiratory infections, malaria, and dehydration remained the most
pressing health concerns.
Emergency relief commodities
The U.N. Shelter Cluster, in conjunction with GOK officials and
KRCS, will continue to conduct needs assessments in new IDP sites to
determine if additional relief commodities are required.
Nutrition
Nutrition is not a critical humanitarian need at this time, but
relief agencies are actively monitoring the situation. The U.N.
Children's Fund is conducting nutrition screening and has identified
approximately 7,500 cases of moderate malnutrition and 70 cases of
severe malnutrition to date. To address potential gaps in the
management of severe malnutrition resulting from the crisis, the U.N.
Nutrition Cluster designed a minimum package of nutrition services for
affected people, as well as tools for rapid assessment, screening, and
monitoring of the nutrition situation.
USG Response Efforts
It is the obligation of the international community to provide
humanitarian assistance wherever it is needed.
USAID has provided more than $4.7 million for emergency
humanitarian response activities since January 3, 2008. Immediate
priorities for USG assistance include protection, water, sanitation,
health, shelter, and camp management interventions targeting displaced
populations and stressed host communities in areas of Nairobi and
western Kenya.
In response to the complex humanitarian emergency in Kenya, a USG
Inter-Agency Task Force convened in Nairobi to coordinate USAID/DCHA, USAID/
Kenya, USAID/East Africa, U.S. Embassy, and other USG response efforts.
A Disaster Assistance Response Team (DART) from USAID's Office of
U.S. Foreign Disaster Assistance has deployed to Kenya and is working
in concert with the U.S. Embassy and USAID Kenya and East Africa
missions to coordinate the U.S response effort. The DART is conducting
field assessments, liaising with U.N. and international relief
organizations, and engaging with other donors to identify evolving
priority needs.
The USG is the largest donor to the U.N. World Food Program in
Kenya. In close coordination with the Kenya Red Cross Society, WFP has
distributed more than 1,226 metric tons of emergency food relief,
valued at approximately $1.3 million, to affected populations in
Nairobi and western areas of Kenya.
Additionally, the U.S. Department of State's Bureau of Population,
Refugees, and Migration has pledged FY 2008 support to UNHCR and the
International Committee of the Red Cross (ICRC) to address refugee
needs across Africa, including the initial emergency response to the
refugee/IDP situation in Kenya and Uganda. These contributions to ICRC
and UNHCR for the response to the refugee/IDP situation in Kenya and
Uganda will be made as soon as funds are formally available.
In addition to addressing the immediate humanitarian needs of
affected populations, short, medium, and long-term response activities
will be required in order to mitigate the political, economic, and
social consequences of the current crisis. The USG Inter-Agency Task
Force based in Nairobi is working to ensure that current emergency
programs help reinforce our development programs.
The Government of Kenya, several ministerial departments, local
disaster response committees, churches, and national relief
organizations demonstrated substantial capability during rapid response
efforts for displaced and affected populations. However, emergency
needs quickly overwhelmed existing capacity and these organizations
required additional support. All programs should work with and
strengthen the very robust civil society, including the Kenyan Red
Cross and Government of Kenya mechanisms, rather than working in ways
that would bypass these national assets.
Other Donors
The response from donors has been robust. The U.N.'s Central
Emergency Response Fund authorized $7,022,854 toward the Inter-Agency
Standing Committee's Humanitarian Emergency Response Plan and Flash
Appeal, which was well-allocated toward priority emergency sectors. As
of January 30, 2008, other donors have provided $24.5 million in
support to the U.N., International Committee of the Red Cross, the
Kenya Red Cross Society, and NGOs responding to the crisis. These
contributions, in concert with the expected USG contributions of nearly
$8 million, will largely meet the immediate humanitarian needs as
outlined in the Flash Appeal and the KRCS appeal. The total requested
for these core emergency sectors under those appeals was $49,193,154
million. To date, $43,776,138 has been pledged or committed leaving a
gap of $5,417,016. However, OCHA is revising the appeal as more
detailed information on the scope of the evolving crisis is reported,
and the humanitarian needs have shown to be more extensive than
initially estimated. Therefore, we expect the funding requirements and
funding gap to increase.
Additional mid-term needs for early recovery and education were
identified in the Flash Appeal. Nearly $8 million was requested for
these sectors; resources have not yet been pledged or committed.
----------------------------------------------------------------------------------------------------------------
Donor Amount Sector Recipient agency
----------------------------------------------------------------------------------------------------------------
Australia................................ $877,193 Food, medicines, shelter KRCS, ICRC, UNHCR.
and protection.
Canada................................... 1,019,368 ICRC preliminary appeal.... KRCS.
CERF..................................... 7,022,854 Camp coordination and U.N. & NGOs.
management; emergency
health; protection;
logistics; water and
sanitation; shelter and
nonfood items; food.
China.................................... 300,000 ........................... KRCS.
Denmark.................................. 43,305 ........................... KRCS.
DFID (UK)................................ 5,972,000 Food, shelter, water and KRCS, ICRC.
emergency health care.
ECHO..................................... 8,093,415 Shelter, water, sanitation, U.N., NGOs and KRCS.
emergency health care,
basic household equipment,
hygiene products, food,
logistics.
France................................... 291,545 Health, food............... Action Against Hunger and
other NGOs.
Germany.................................. 1,350,770 Health, emergency relief German Red Cross, ICRC,
supplies. World Vision Kenya, German
Agro Action.
Ireland.................................. 728,863 Nonfood items.............. Trocaire.
Italy.................................... 358,600 Assistance for Kenyan IFRC.
refugees in Uganda.
Japan.................................... 200,000 ........................... ICRC.
Korea.................................... 200,000 ........................... UNICEF and OCHA.
Netherlands.............................. 2,207,295 Emergency relief supplies, KRCS.
water and health.
Norway................................... 2,189,949 ........................... U.N., KRCS, CRC & NGOs.
Safaricom................................ 72,174 ........................... KRCS.
Sweden................................... 356,526 ........................... Red Cross Sweden.
Switzerland.............................. 183,023 Logistics.................. ICRC, KRC.
Turkey................................... 100,000 ........................... WFP.
UNDP (Bureau for Crisis Response and 100,000 ........................... Early recovery cluster.
Recovery).
----------------------------------------------------------------------------------------------------------------
Where Do We Go From Here
As I stated previously, it is the obligation of the international
community to provide humanitarian assistance wherever it is needed.
Some donors have hinted that they are not planning to contribute
additional funding to assist with the post-election crisis in Kenya.
It is only with the assistance of the international community that
Kenyans can move their country to a place of peace and stability. Such
assistance can assist Kenya to reestablish its position within the
wider community of African nations working toward democracy and
economic independence.
______
Letter From Hon. Stephen Kalonzo Musyoka EGH MP, Vice President and
Minister for Home Affairs, Republic of Kenya
February 6, 2008.
Senator Russell Feingold,
Chairman, Subcommittee on African Affairs, Senate Committee of Foreign
Relations, Dirksen Senate Office Bldg., Washington, DC.
Mr. Chairman and Honorable Members of the Subcommittee: Many thanks
indeed for the opportunity to speak to this committee and provide you
at least one voice from the homeland as you and your committee consider
these important issues on Kenya.
For those of you who do not know me, while I am the current Vice
President of Kenya, I also emerged as the third candidate overall in
the most recent Presidential election. Since 2002 and throughout the
past election I have worked together with Mr. Odinga, his party the
Orange Democratic Movement (ODM), and my party Orange Democratic
Movement Kenya (ODMK) originating from our combined efforts to change
the Kenyan Constitution over the past several years. After the recent
election, with violence rearing its ugly head, President Kibaki reached
out to me and the ODMK, appointing me Kenya's Vice President; through a
coalition of parties' arrangement.
First, let me tell you that the violence in Kenya has subsided.
While there has already been too much bloodshed in Kenya--one lost life
in pursuit of political ambition is one death too many--it appears that
we have turned the corner, but having said this, all parties must agree
to resolve these issues in the context of our laws and institutions,
rejecting violence as a means to a political end.
With the bloodshed contained, we must then move to address the
plight of more than three hundred thousand displaced Kenyans living as
refugees in their own country. They are the victims of this atrocious
violence as much as those that have been murdered. That is the
immediate growing crisis that needs to be urgently addressed.
It is important the Members of Congress, the State Department and
the White House understand that the murder and bloodshed in Kenya is
NOT due to the general public ``revolting'' against what was a
legitimate political outcome--it is sadism and slaughter that is being
encouraged by certain parties in order to REJECT a legitimate political
outcome. It is violence that is driven by longstanding ethnic
differences, and competing claims to land and property. It is not
aggression driven by a belief that this election was illegitimate. Your
own representative from the State Department was correct in calling
this violence ``ethnic cleansing''--it is ethnic hatred stirred up by
others who are selfish at best in their motives.
The solution to the problem in Kenya will not come externally. The
democratic institutions that the country has developed over the past
decades were created to resolve political problems in a peaceful
manner. There are avenues for the losing candidates to challenge
election results--through the courts much like the challenge Al Gore
made in the 2000 Presidential Election here in the United States.
Unfortunately it appears that instead of using these proper channels
the opposition has resorted to violence in the misguided hope that the
fear of further bloodshed and mayhem would encourage other nations to
impose a change.
It should not be this way. Despite numerous elections in Kenya over
the past several decades, some as contentious as this past election, no
individual or group has used violence as a means of obtaining political
power. Why should the most successful democracy in East Africa now
compromise what a generation of Kenyans has built? Why would the United
States and Europe, whose own traditions of peaceful challenge of
election outcomes ``encourage'' the use of mob justice for political
ends.
Advocating for a ``power sharing'' solution on Kenya will result in
a dangerous precedent and my country will be faced with MORE hostility,
not less. If the United States promotes this kind of resolution it will
create the wrong impression that violence is a legitimate means to
resolve disagreeable democratic outcomes. I find it difficult to fathom
that this is what your country truly recognizes as a justifiable
solution. How can the United States consider the idea that blackmail,
with terror and murder as leverage, is a legitimate political tool in
any democracy?
So what would I propose to resolve these issues?
First and foremost, everyone, winners and losers, Kenyans and
foreigners, must recognize that violence and murder are unacceptable
responses to an electoral result. Everyone must condemn and do what is
in their power to stop any attacks.
Second, the persons responsible for financing, inciting and
approving of this activity must be brought to justice. While the
individuals performing these acts may never be known, the persons
behind the incitement of this bloodshed are known, and must be held
accountable and brought to justice.
Third, the protagonist factions must come together with the rest of
Kenya, the United States and other countries to resolve the dislocation
of three hundred thousand persons inside the country. Humanitarian aid,
health services and settlement over lost or damaged property must be
addressed immediately so that this situation does not turn into an
unbearable crisis.
Next, the United States and other countries should encourage the
opposition to pursue its challenge to the election through lawful means
and other institutions as outlined in our Constitution and our legal
system. If there are serious concerns about the outcome then these are
the channels to address those concerns. There should not be any support
from foreign powers to usurp or circumvent Kenyan law and ignore our
Constitution.
With respect to the election results and the desire by many to
allow the opposition to have a voice in our government, I suggest that
you look at the entire election that has taken place. This election
divided the Kenyan Government, with Mr. Kibaki remaining as President,
but with the opposition party having a large block of seats in
Parliament. With ODM's sizable numbers in Parliament, they have a
significant say in the funding and priorities of the goverment, much
like the Democrats in your Congress have a role to play in the
priorities and funding of your government. In addition, if Mr. Odinga
so desires he can call for a vote of ``No Confidence'' in the sitting
government and initiate a new round of elections. He has as much lawful
power in Kenyan politics, if not more, than the Democrats comparatively
have here in the United States; but I hope you will agree that to share
control of the executive branch with the opposition, here in your
country would not be considered.
Give my country time and allow our institutions to deal with these
complex issues. We encourage assistance from the United States, Europe
and NGOs to investigate these acts of violence and help us bring the
instigators to justice. We encourage the United States, Europe and the
NGOs to help us prevent a crisis with respect to our dislocated people.
We encourage the United States to advise the opposition to use any
legal means to review the election results.
But I encourage you to reconsider the threats of action that some
in your Congress wish to impose unless we initiate an unconstitutional
``power sharing'' structure that will do more to disrupt our fragility.
Kenya has a proud history as a peaceful democracy. We will resolve
these issues while ensuring our Constitution and its values survive
this troubling period. Kenya will stand up for democracy. Kenya will
stand up for the peaceful transition of power. Kenya will stand up for
bringing those responsible for the bloodshed to justice.
Despite our difficult elections and despite this period of
violence--we can solve our problems, maintain our constitutional
principles and stand as an example for all of Africa.
Thank you again for this opportunity to be a voice for my country.
Hon. Stephen Kalonzo Musyoka EGH MP,
Vice President and Minister for Home Affairs,
Republic of Kenya.
______
Prepared Statement of Tavia Nyong'o, Assistant Professor of Performance
Studies, New York University, New York, NY
As a Kenyan-American professor currently teaching at NYU, I was an
eyewitness to the election and its immediate aftermath in Kenya. I can
confirm the judgment of the EU and domestic observers that, while the
runup to the election, the voting process itself, and the initial
counting at the polling stations was credible, the results announced at
elections headquarters in Nairobi lacked credibility. Indeed, the
electoral commission chair quickly disowned them. As this is only
Kenya's fourth election since the restoration of competitive
(multiparty) democracy, I find it critical that the U.S. does not
simply support ``power sharing'' among elites or repeat empty calls for
``an end to the violence,'' but that we stand resolutely for a
democratic resolution to the crisis. It was despair over the theft of
their votes that spun many Kenyans into tragic and illegitimate
violence, even as ethnic grudges and criminal opportunism now
perpetuate the violence beyond the easy control of either side of the
political dispute to quickly resolve.
A democratic resolution can take various forms: A recount or audit
of the vote, or an interim government followed by a rerun. Any
resolution will also have to address Kenya's crippling constitution,
which a democratic process began to reform before Kibaki derailed it
during his first term in office (a widespread reason for his current
unpopularity). Recognizing Kibaki as Kenya's ``duly elected president''
and returning to business as usual will set back democracy in Kenya and
on the continent by decades.
Jendayi Frazer's claim of ``ethnic cleansing'' needs to be
addressed. Kenya's sad history of politically motivated ``tribal
clashes'' during election season, begun during the Moi era, has sadly
continued under Kibaki's watch. That said, Kibaki's regime is less like
Rwanda and more like other authoritarian regimes the world over, hoping
to keep up appearances with the West through pro forma liberalization,
without substantive decentralization of power. Ethnic violence,
together with the state's promise to clamp down hard and restore order,
plays to Kibaki's benefit, as it did for Moi, who opposed democracy
precisely because he claimed it would stoke ethnic tension. In response
to the current crisis, China is now pushing this same line. In fact, it
is the theft of democracy, not its presence, that escalates ethnic
violence.
That said, given the reality of ethnic violence and escalating
retaliation, and given the low confidence Kenyans now have in their
security forces, who shot and killed unarmed protestors, the
possibility of neutral peacekeepers, such as EU or AU forces, deployed
to the Rift Valley and Western Provinces to restore security should
also be considered.
To date, the regime has met with mediators and with the opposition,
but has otherwise made no movement from its hard-line position. To the
contrary, Kibaki immediately had himself sworn in, and appointed most
of his Cabinet before mediation had even begun. In order for Kofi
Annan's mission to succeed, more pressure, including the suspension of
travel visas on high ranking government officials, needs to be
considered. Kenya is a strategic ally of the U.S., and a pillar of
stability in an insecure region. The theft of this election has pushed
Kenya to the brink, and only firm action to reestablish the democratic
legitimacy and accountability of Kenya's institutions will bring it
back.
______
Prepared Testimony of Charles Clements, M.D., M.P.H., CEO and
President, Unitarian Universalist Service Committee (UUSC), Cambridge,
MA
THE UUSC EMERGENCY ASSESSMENT MISSION TO KENYA
The Unitarian Universalist Service Committee (UUSC), a human rights
and social justice organization based in Cambridge, Massachusetts, sent
an emergency assessment mission to Kenya January 20-25 to learn
firsthand the extent and causes of the political and humanitarian
crisis that has engulfed the country in the aftermath of the flawed
Presidential election in late December.
My name is Charlie Clements. I am President and CEO of UUSC and a
public health physician. The other two members of the mission were Dr.
Atema Eclai, UUSC's Program Director and a native Kenyan and the Rev.
Rosemary Bray McNatt, a UU minister and co-founder of the UU Trauma
Response Ministry. We met with UUSC's NGO partners, humanitarian
organizations, religious leaders, leaders of civil society
organizations, and community leaders to assess the impact of the crisis
on the lives and livelihoods of ordinary Kenyans and to analyze what
steps are needed to achieve a durable and peaceful settlement
consistent with democratic principles.
UUSC condemns the mounting violence precipitated by the electoral
crisis in Kenya, and we are deeply concerned about the growing
humanitarian and political crisis that has affected many of Kenya's
most vulnerable citizens. We unequivocally support the right of Kenyans
to free and fair elections.
POLITICS AND POVERTY AT THE ROOT
UUSC understands that, far from being driven only by ethnic
rivalries, as the media have been reporting, the post-election violence
is rooted in deep economic injustice, a skewed distribution of
political power, political manipulation of ethnic identities, and the
persistent failure by government to respect civil liberties and
democratic processes. Long-simmering frustrations caused by economic
and political problems have finally reached the boiling point in Kenya.
The benefits of Kenya's rapid economic growth have largely been
concentrated among a small elite. An incredible 60 percent of Nairobi
residents live in slum areas, and more than half of the people in Kenya
live on less than $2 per day. The daily reality of many Kenyans is
shaped by the hardship of inequality and the indignity of poverty,
which all too often lead to frustration and hopelessness.
Many hopes had been built up around this election. Late last
December, on the eve of elections, ordinary Kenyans believed that their
vote must count and be counted. Hard-fought gains won by civic
struggles in the 1990s had lifted public hopes, and one observer told
us that ``this was the best electoral process since independence
(1963), whether in terms of registration, campaigns, mobilization of
voters, pre-election violence, voter education, or turnout.'' Across
the country, voters tolerated long lines at voting stations because
they were both excited and confident; they were committed to exercising
their right and responsibility to vote. Election participation has been
estimated at 68 to 74 percent in all ``constituencies.''
But collective expectations for a transparent, democratic process
were smashed when, despite widespread reports of fraud committed at
many polling stations, Mwai Kibaki, declared himself the winner and was
secretively sworn in as President. Even while a storm of protest was
building in Kenya and internationally, Kibaki appointed his new
Cabinet, disdainful to the will of the people and to the mediators then
en route to Kenya. As we have seen, frustrations from justice long
denied can easily escalate into violence. These dynamics, the true
cause of the widespread unrest gripping Kenya, have created a severe
humanitarian crisis, with grave ramifications for the entire region.
Again and again, Kenyans told our delegation that this crisis is
not primarily about ethnicity. It's about fraud. It's about decades of
politicians ``feeding at the public trough.'' It's about illegally
armed militias who were intentionally set loose to incite violence. At
the same time, we were told that, if navigated successfully, this
crisis could open an opportunity ``to finally resolve the largely
ignored issues of ethnicity'' that have afflicted the nation since its
independence.
AN UNSTABLE SITUATION
Across Kenya, entire neighborhoods and villages have been burned to
the ground. Violence triggered by the flawed election has killed more
than Kenyans and estimates of displaced people are as high as 600,000
people. Unrest continues in various parts of the country.
There are serious shortages of fuel, water, food, and other
commodities and humanitarian aid agencies have had difficulty assessing
the extent of the damage and the number of people affected because of
irregular transportation and insecurity.
Since the elections, Kenyans have been ignored in their call for
new elections and have been denied the right to protest openly. Instead
of heeding the requirements of transparency or rule of law, the
government has ordered the police and the military to repress public
demonstrations with ``shoot to kill'' orders.
Security is a widespread concern. We had many firsthand reports of
police standing by as rioters burned houses and stores or ``cleansed''
neighborhoods of certain ethnicities.
As reported to us by the Kenya National Alliance of Street Vendors
and Informal Traders (KENASVIT), one of our partner agencies in Kenya,
the security situation has produced strikingly similar patterns of
effects on their lives and livelihoods: Some members of the alliance
have been displaced from their homes, many have been displaced from
their trading sites, some suffered ethnically focused abuse, a few lost
their lives, many were injured or raped, and virtually all lost
property due to robbery or arson. Many vendors are operating on
drastically reduced incomes due to: Shortened working hours, loss of
business capital and stock, low customer turnout due to fear and
insecurity, heavy military and police presence that also dampens
customer turnout, the high cost of merchandise due to the destruction
of established businesses, difficulty using public transportation to
collect wares, and difficulty getting access to bank accounts.
We also met with religious leaders--Muslim, Catholic, and
Protestant--who acknowledged that while strong voices from each faith
have spoken out, they have eroded their own moral authority because
they have failed to speak as one and have been seen as partisan.
The NGOs told our delegation that the violence to date could be
viewed as a beginning that could escalate out of control. We were told
any lull in the violence should not be confused with calm, because it
``gives people time to prepare, to gather their energy, to become more
organized . . . to be more angry.'' One NGO leader warned, ``As more
and more people find themselves without food because of scarcity and
skyrocketing prices, without money because they are unemployed and have
exhausted their meager savings, and without hope because our political
leaders are in gridlock, the poor will turn on the middle class and
this could become class warfare.''
WHY THE UNITED STATES MUST ACT
Because Mr. Kibaki controls the courts, the police, and other
institutions and has prohibited citizens from organizing and
assembling, Kenyans need the support of impartial outside parties to
achieve electoral truth and justice. We were told by Kenyans that
outside assistance is critical, because under the current constraints,
their institutions are not capable of resolving this peacefully.
There is growing anger in Kenya about what the United States is not
doing. The United States was one of the first nations to congratulate
Mr. Kibaki. Although the U.S. has since back-pedaled, in contrast the
British Government and European Union quickly declared that the
election was flawed and have been pressuring Mr. Kibaki to accept
mediation. The message being received by Kenyans is that the United
States does not want to risk the alienation of Kibaki . . . or as
Kenyans are saying, ``the United States seems to be interested in
peace, but not justice.''
As our delegation ended one session and asked for closing remarks,
someone said with great hope, ``I think Bush can do something for us.
If they [the Americans] could have gone at the speed of the British,
Kibaki would be gone by now.'' He was referring to strong statements by
the British Ambassador, who stated publicly that a grave injustice had
been done to both the Kenyan people and the Kenyan democracy. He said
it must be put right, and threatened that the failure to do so would
put millions of dollars in British aid to Kenya at risk.
Kenyan stability is not only crucial for Kenyans, but for the
entire Horn of Africa region, for which the country serves as the
gateway for international trade. It also serves as the regional
transportation and communications hub, for both commerce and the flow
of relief. The United Nations warehouses supplies in Nairobi for local
and regional distribution. If problems persist, regional humanitarian
work in Uganda, South Sudan, and the Congo will be affected.
Kenya has also played a strategic role in the United States global
security efforts, and it is clearly in the interests of the U.S.
Government to ensure that peace with justice is achieved.
RECOMMENDATIONS TO ADDRESS THE HUMANITARIAN AND POLITICAL CRISIS IN
KENYA
UUSC calls on the United States Government to:
Deny official recognition of the Kibaki government.
Hold off on recognizing any Kenyan Government until the
people of Kenya are given the chance to vote in a truly fair,
transparent, and legitimate election.
Issue unequivocal statements calling for investigation of
the recent election.
Join with the United Kingdom and European Union in urging
all parties to the conflict to end the cycle of violence and
agree unconditionally to accept mediation being offered by Kofi
Annan, Graca Machel, and Benjamin Mkapa.
Urge full support for Kofi Annan's call for a Truth and
Reconciliation Commission to address human rights abuses
including gender-based violence.
Explore sanctions and other effective means of pressing
Kibaki that do not involve cutting off aid to NGOs such as the
Kenyan Red Cross, while suspending any direct aid to the
Government of Kenya.
Commit to development aid and support to help the Kenyan
people recover and rebuild from the post-election violence, if
the government abides by the terms of the mediation.
Call for constitutional reforms that will increase
transparency, accountability and put in place the governance
systems that can represent the democratic desires of the Kenyan
people.
______
``Kenyans for Peace'' Position Paper
THE CRISIS IN KENYA: HOW THE U.S. CAN HELP KENYA--AND AFRICA--GET BACK
ON TRACK
Kenyan civil society's priorities
While the two political parties have been trading accusations,
civil society organizations have urgently tried to find approaches that
can end the devastating violence and disruption that have left between
500 and 1,000 dead, a quarter of a million people displaced and a
booming economy on its knees and--equally important--defend the
intention of the voters.
Kenyans for Peace with Truth and Justice (KPTJ)--led by the Kenya
National Commission on Human Rights and comprising nearly 30 major
independent human rights, governance and prodemocracy groups took a
strong lead on January 5, calling for the politicians to commit to a
mediation process with the aim of agreeing an interim electoral
oversight body that could audit the just-derailed process and propose
either a retally or recount of existing votes or a rerun of the
election within a specified time period.
The Law Society of Kenya was a signatory to the KPTJ statement but
also issued its own trenchant position seeking a rerun of the election
and rejecting the view that Kibaki, having had himself sworn in, should
be allowed to remain in power. While the statement recommends a new
election within 90 days, it's likely that with all the disruption and
displacement of the past 2 weeks, it would take longer to mount a fair
election. The key point is not the time but the commitment to fix what
has been broken.
The LSK might have been expected to support resolution of electoral
disputes in the courts but the statement decries the length of time
election petitions have taken in the past and secondly notes that the
Chief Justice and the Registrar, who determine whether to hear such
petitions, were involved in the contested swearing in of President
Kibaki and are partisan.
Civil society is fully aware of the need for constitutional change,
particularly to end the over-concentration of power in the Presidency.
However addressing these problems will take time; failing to remedy the
derailed vote as well as longer term reform is a recipe for public
cynicism and loss of trust in democracy. This implies that some form of
transitional administration will need to be agreed through mediation
that can rule for a limited period and deliver a new election. Civil
society believes there is no way forward unless the voters' intentions
are upheld.
U.S. responses
The U.S. has prioritized the crisis in Kenya putting its weight
behind the AU mediation and pressing the parties to commit. Secretary
Frazer is quoted in press reports as saying that ``We will support
whatever decision this country comes to, as long as it comes in a
unified fashion.'' She is also quoted as saying that constitutional
reform is necessary to limit Presidential power and address social
grievances and strengthen governance institutions such as the ECK to
forestall a similar crisis in future. Regarding the election itself,
she acknowledged to reporters that, ``The people of Kenya have been
cheated by the political leaders and institutions'' and that, ``the
U.S. was deeply concerned with the Presidential vote tallying
process.'' However she has stated that political reform and lower
tension would be needed ``before a rerun of an election would be an
effective measure of who should govern the country.'' While
acknowledging concerns about the judiciary's partiality, she is said to
believe that the present dispute should be resolved within established
institutions, specifically the courts.
Civil society observers appreciate U.S. engagement to help end the
crisis. There is some unease, however, with the U.S. Government's
apparent focus on restoring order through compromise between rival
political leaders rather than upholding the primacy of the voters'
intentions. They fear that U.S. backing for a government of national
unity on Kibaki's terms leaving the election dispute to be resolved
separately would be problematic, for a number of reasons:
If President Kibaki believes the U.S. does not support a new
election, he may be emboldened to refuse compromise and try to
sit out the protest without making concessions since his
position will seem secure.
Unless a new, clean election is eventually held, the
impression will be created that democracy and electoral
processes rank lower than the need to pacify powerful political
leaders. The U.S. Government and others have confirmed the use
of rigging in the election; Kenyans will lose faith in the
possibility of transferring power fairly through the ballot box
if a rigged result is allowed to stand, with serious
consequences for the political future.
There is concern that the judiciary has been shown to be
highly manipulated by the government in the past and might not
provide independent decisions on election petitions. The courts
might take years to reach a conclusion allowing the Kibaki
government to rule for a term regardless of the eventual
verdict.
While thoroughgoing political and constitutional reform is
needed, it will take a long time to achieve and Kenyans cannot
be asked to wait indefinitely for a fresh Presidential
election. A transitional body could put interim steps in place
that would allow for a new election to be held without waiting
for a full revision of the constitution.
Failure to ensure a fair election is held could impact
democratic efforts in other African countries. It is possible
that the impunity witnessed in Nigeria's and Ethiopia's
elections (in 2007 and 2005) encouraged similar impunity in
Kenya. Ghana and Angola among others have elections later this
year and it is vital for the U.S. to uphold the value of
effective elections.
What the U.S. can do to help resolve the crisis
The U.S. should state for the record that it is open-minded
and impartial on the outcome of a mediated settlement and
should refrain from making recommendations that could pre-empt
the mediation, particularly any that imply that President
Kibaki's de facto rule must be accepted.
The U.S. should state that like Kenya's civil society
leaders, it views electoral truth and justice as paramount and
the restoration of Kenyan's confidence in their democracy is of
critical importance. If the mediated settlement proposes
holding a new Presidential election under better conditions,
the U.S. should be supportive.
The U.S. should continue to support the AU-led mediation
effort and withhold recognition of the Kibaki government
pending an agreement with the ODM. Hard-liners in the two
political parties are currently refusing to compromise on their
positions. If such intransigence continues the U.S. should be
prepared to impose travel bans on the key players and their
families, particularly those with students studying here.
Noting that death threats have been made to civil society
leaders and human rights defenders and that such individuals
are vital to Kenya's future, the U.S. should press all sides to
assure their safety.
The U.S. should call for the immediate lifting of
restrictions on media and relaxation of limits on freedom of
association and assembly.
In coordination with other donor institutions and states,
sustain and/or step up financial and technical support to help
meet humanitarian needs and restore confidence of Kenyans and
international partners in the future.
______
``Breaking the Stalemate in Kenya''--by Joel D. Barkan, January 8, 2008
The historical origins of the violence that has engulfed Kenya
since the discredited election of December 27 run deep, and it will
take more than a recount of the vote and/or the formation of a
government of national unity to resolve the crisis. Although nearly 9
million Kenyans went to the polls in what was to be the crowning event
of the country's two-decade struggle for democratic rule, the
ingredients for post-election violence were clear. Public opinion polls
conducted before the election indicated that the race between incumbent
President Mwai Kibaki and his principal challenger, Raila Odinga, was
too close to call. Outbreaks of violence had occurred in the runup to
previous elections in 1992 and 1997. Many Kenyans, especially the
leaders of civil society, worried that unless the Election Commission
of Kenya (ECK) conducted the December elections in a manner that was
scrupulously ``free and fair'' and regarded as legitimate by all
candidates, the losers would not accept the verdict, and violence would
ensue.
Sadly, their fears were correct. Despite many warnings and pleas
for restraint before the election--from Kenyan civil society, the
Kenyan press, and the international community, including the United
States--an election that started well has ended in crisis. Between 500
and 1,000 people have died in post-election violence, while more than
250,000 Kenyans, mainly Kikuyu settlers in the western Rift Valley,
have been displaced from their homes. How and why did this crisis
evolve, and how might it be resolved?
The December election was the fourth since the reintroduction of
multiparty politics in 1992 and pitted Mwai Kibaki and his Party of
National Unity (PNU) against Raila Odinga, the leader of the Orange
Democratic Movement (ODM), and Kalonzo Musyoka, head of ODM-Kenya. In
addition to the Presidential contest, more than 2,500 candidates vied
for 210 seats in the National Assembly. Members of local councils were
also elected. The turnout was the highest on record, about 70 percent
of those registered, and passions ran high.
The election was arguably the ``freest and fairest'' since
independence through all stages except the last. In marked contrast to
prior elections, the Presidential candidates and those seeking
legislative office were unimpeded during the course of their campaigns.
The polls opened more or less on time on election day, and most voters
who wished to vote cast their ballots by the time the polling stations
officially closed. The count at nearly all polling stations viewed by
domestic and international observers, including this writer, was slow,
but transparent. Agents of the rival candidates signed off on the count
and went home thinking that the rest of the process would proceed
according to the procedures specified by the ECK.
Unfortunately, they were wrong. As became apparent during the 48
hours following the election, and confirmed by both international and
domestic observers, the tallying of the vote reported by the individual
polling stations in more than 35 parliamentary constituencies was
highly flawed. The result was that Raila Odinga, who had been reported
in the Kenyan media to be leading in the Presidential contest by more
than 370,000 votes with 90 percent of the constituencies reporting,
suddenly found himself the loser by nearly 200,000 votes when the ECK
announced the winner on December 30. The European Union, the
Commonwealth, and the Kenyan Domestic Observation Forum (KEDOF) all
called for an international audit of the count, at which point the
chaos began.
As with close elections elsewhere, the vote and the opinion surveys
preceding the election revealed the deep fault lines within Kenyan
society that now threaten to roll back 5 years of democratization and
economic gain achieved since Kibaki was elected to succeed former
President, Daniel arap Moi, in 2002. Whereas the Moi years were marked
by economic stagnation and resistance to democratic reform, Kibaki's
administration turned the country around on both fronts. Economic
growth hit 6 percent per capita in 2006, the highest rate of growth in
more than 30 years. Investment and tourists poured into the country.
Civil society, the press, and Parliament came alive to advance what had
been a tortuous quest for democratization to unprecedented levels.
Kenya, it appeared, had been reborn, and Kibaki should have been in
position to win reelection handily.
Deep schisms, however, existed within the political elite that
reflected persistent divides in Kenyan society. Many attribute Kibaki's
victory in 2002 to Odinga, who campaigned tirelessly for Kibaki and
swung his political allies and followers in Nyanza Province, the
heartland of the Luo people, behind Kibaki to form a broad multiethnic
coalition, the National Rainbow Coalition (NARC). The formation of NARC
was based on a now-controversial memorandum of understanding between
Kibaki and Odinga that ostensibly promised Odinga the position of Prime
Minister with substantial executive power. Odinga's alliance, which
included Kalonzo Musyoka and other prominent non-Kikuyu leaders from
outside Nyanza, were also promised an ``equal'' number of posts in
Kibaki's Cabinet should they win the election. After the election,
however, Kibaki reneged on the deal, although he did appoint Odinga
Minister of Works and Housing, and Musyoka became Kenya's Foreign
Minister.
Kibaki also miscalculated by relying heavily on a small group of
ministers from his own Kikuyu tribe, as well as ministers from the
culturally related Meru and Embu communities. Known as the Mt. Kenya
Mafia, because the three groups inhabit the foothills around Mt. Kenya,
the group, and hence Kibaki's administration, was regarded by most
members of Kenya's other 41 ethnic groups as a government that favored
the Kikuyu at the expense of their communities. As the largest (22
percent), most educated, and most prosperous ethnic group in Kenya, the
Kikuyu have long held a disproportionate number of positions in the
civil service and Kenya's professions. Kikuyu are also overrepresented
in the business community, which has prospered greatly as the economy
has regained its position as the dominant economy of eastern Africa. By
the end of Kibaki's term, Kikuyus controlled the key ministries of
finance, defense, information, and internal security.
The result was that while Kibaki campaigned for reelection on the
theme that the country never had it so good, the opposition, led by
Odinga, mobilized the electorate with appeals for change, arguing that
it would do a better job at distributing the fruits of Kenya's economic
and political resurgence more equally across Kenya's 42 ethnic groups.
The implicit anti-Kikuyu message in this appeal was clear. Odinga and
the ODM also called for the establishment of a federal form of
government that would protect the interests of the other ethnic groups.
This appeal, in addition to a well-organized, well-financed, and
colorful campaign by ODM, enabled Odinga and other prominent non-Kikuyu
leaders to rally a majority of Kenyans against Kibaki. Inevitably, the
campaign also polarized the country along ethnic lines. While over 90
percent of the Kikuyu and Meru residents around Mt. Kenya voted for
Kibaki, a similar percentage of Luos in Nyanza voted for Odinga. Odgina
also rolled up large majorities of between 55 and 70 percent of the
vote in Western Province, the home of the Luhya people; in the Rift
Valley Province, the homeland of the Kalinjin and a half dozen other
small tribes; in Coast Province, which is also inhabited by smaller
ethnic groups, as well as most of Kenya's Muslim population; and in
North-Eastern Province. Odinga also obtained a narrow majority in
Nairobi.
In the process, ODM won 99 seats in the National Assembly to 43 for
Kibaki's PNU. While most, but not all, of the 35 members of Parliament
from smaller parties support Kibaki, Odinga and the ODM will control a
majority of seats in the legislature. The election reflected
dissatisfaction with Kibaki's government across Kenya. Even within the
Kikuyu community, especially among younger Kikuyu unhappy with Kibaki's
exclusivist approach to governance, there were signs of revolt.
Eighteen ministers, more than half of Kibaki's Cabinet, were defeated,
as were a substantial number of Kikuyu incumbents, including two
members of the old guard: Njenga Karume, the Minister of Defense, and
David Mwiaria, the former Minister of Finance.
Resentment against Kikuyus runs particularly deep in the area of
the northern Rift Valley between Nakuru and Eldoret and Kerichio. It is
in this triangle, inhabited by the Kenya's white settler community
before independence, that most of the killing has occurred in the week
following the election. Land vacated by the former settlers during the
1960s and early 1970s was purchased by Kikuyu with assistance of the
Kenyan Government, then led by Jomo Kenyatta, himself a Kikuyu, instead
of being returned to the communities from which the land was taken
during colonial rule. This created a domestic Kikuyu diaspora 100 miles
west of the Kikuyu homeland around Mt. Kenya, and it is this group that
has suffered the most during the past week.
Kikuyu business has suffered too. Although Kibaki retained the
Presidency through questionable means, events following the election
make it clear he cannot govern the country, despite being sworn in for
a second term. Although the unrest may subside, a negotiated deal
between the two protagonists is essential for long-term stability and
to overcome the losses to the Kenyan economy, which are approaching
$500 million.
To this end, Kibaki announced on Monday, January 7 that he is
prepared to form a government of national unity that will presumably
give the ODM a large proportion of seats in the Cabinet. But on January
8 he greatly complicated the prospects for a settlement by appointing
Kilonzo Musyoka, the candidate who finished third in the Presidential
race, to be his Vice President, and 16 others to serve in what he
described as ``part'' of his Cabinet. The appointments also include the
ministries of finance, internal security, justice, local government,
education, information, and defense, leaving only minor posts to be
filled in the future by Odinga and his colleagues in ODM. Although this
move is intended to send a signal to Odinga that the ethnic
constituencies behind ODM do not command a majority of Kenyans, it is
also a continuation of the self-isolating policy of his Presidency as
it now means that the new government rests on a central-eastern Kenyan
alliance of the Kikuyu, Embu, Meru, and Kamba peoples verses everybody
else. Of the 17 positions, 8 are held by the members of these groups.
This is precisely the type of governance Raila Odinga and his
colleagues want to break. They will not settle for mere posts in an
expanded Cabinet but want an arrangement of genuine power-sharing: The
position of Prime Minister with real executive power for Raila, at
least half the positions in the Cabinet, and even more important, a new
constitution for Kenya that will guarantee non-Kikuyu an equitable
slice of the pie. The key to this is some form of federalism, perhaps
the devolution of power to 13 regions to replace Kenya's current eight
provinces that are controlled by the Office of the President via the
provincial administration. The call for federalism, or Majimbo, by
Kenya's smaller and poorer ethnic groups--the so-called have-nots
compared to the Kikuyu--has been on the agenda of the political leaders
of these groups for nearly 50 years. Long resisted by Kikuyu leaders,
it is an idea whose time may have come. Like India in the 1950s or
Nigeria in the 1980s, the mechanism for diffusing linguistic strife and
ethnic issues may be the restructuring of the basic rules of the
political game. Given the reality of African politics, democratization
across the continent requires more than the expansion of individual
rights, both political and economic. Group rights to address the
``ethnic factor'' must be afforded, too.
Whether Kenya's two principal leaders can broker such a deal
remains to be seen and the prospects look much dimmer than before
Kibaki made his appointments. It has taken a week for both to realize
that a bloody and hurtful stalemate has emerged, from which neither can
emerge victorious. While Kibaki cannot govern Kenya from the narrow
base of Central and Eastern Provinces, Odinga and ODM would be well
advised not to repeat the mistake of former President Daniel arap Moi,
who tried to run Kenya without support from the Kikuyu community, and
especially its members of Kenya's business and professional class. That
strategy doomed Kenya economically throughout the 1980s and early 1990s
and must not be repeated if Kenya is to build on its economic
performance of the past 5 years. Kikuyu have also been prominent within
those civil society organizations that have advanced and consolidated
the process of democratization in Kenya.
Whether and how Kibaki and Odinga negotiate a power-sharing deal
will require sustained pressure on the principals from both within and
outside Kenya. Pressure must especially be applied on the hard-liners
who surround both principals--old guard Kikuyus, such as John Michuki,
George Saitoti, Stanley Murage, and Njenga Karume, who have undercut
Kibaki's authority to govern by pushing him into the Mt. Kenya strategy
of governance; and Kalenjins, such as William Ruto, a supporter of
former President Moi, who is reported to be behind some of the
atrocities occurring in the northern Rift.
If there is an encouraging aspect to Kenya's post-election week of
agony, it is that civil society--the churches, the organizations that
fought for democratization throughout the 1990s, and the press, and
even Kenya's singers and music entertainers--has stepped forward to
plea for negotiations to occur. The international community, especially
the United States, the United Kingdom, and the European Union, have
also done their part. British Prime Minister Gordon Brown, U.S.
Secretary of State Condoleezza Rice, and EU Secretary General Javier
Solana have leaned on both principals. South African prelate, Desmond
Tutu, spent part of last week in Kenya urging both principals to
exercise restraint. The IMF has also issued a statement detailing the
mounting economic costs of the stalemate. Last but not least, the
Kenyan diaspora in North America and the United Kingdom, a small but
prosperous community of professionals and business people that maintain
close ties with their homeland, and which is an important source of
remittances and investment, has called for a negotiated settlement.
After initially praising the election in a premature statement on
December 29, the United States sent Assistant Secretary of State
Frazier to Kenya on January 4. Since her arrival, Frazer has suggested
that real power-sharing is required, including, perhaps, some measure
of ``devolution'' that would address the long-simmering issue of group
rights noted above. The United States is also rightly backing the
initiative by the current President of the African Union and Ghanaian
President John Kufour, who arrives in Kenya today.
The way out of the crisis will ultimately depend on Kenya's
political class recognizing what civil society and the diplomatic
community has made clear: That Kenya is indeed at the proverbial fork
in the road. One fork leads to continued chaos and the loss of much of
what the country has gained since the reintroduction of multiparty
politics in 1992, and especially since the end of the Moi regime in
2002. The other fork leads to the consolidation of democracy, renewed
economic development, and the continued emergence of Kenya as arguably
the most significant country in Africa after South Africa and possibly
Nigeria. As the anchor state of the region of greater eastern Africa,
Kenya matters. A stable and prosperous Kenya raises the prospects for
peace and development in Uganda, Rwanda, eastern Congo, and southern
Sudan. Kenyans are being tested to the limit by the current crisis, yet
if a deal can be reached, including with minimal constitutional
reforms, Kenyans may in 10 years look back on the events of the first
week of January 2008 as the time when their country turned the corner
and became an example for the rest of Africa.
______
``Too Close to Call: Why Kibaki Might Lose the 2007 Kenyan Election''--
by Joel D. Barkan
Kenya's President Mwai Kibaki has presided over a dramatic economic
turnaround that not long ago was expected to guarantee him reelection
in the Presidential vote coming up on December 27, 2007. The country's
economy is growing at nearly 7 percent annually, and a genuine
``trickle down'' of benefits, including free universal primary
education, has touched the lives of many Kenyans in all regions. Why,
then is Kibaki trailing in the polls, and fighting for his political
life in an election that is now too close to call? The answer lies in a
combination of Kibaki's mode of governance, bad advice from his
political advisors, and hard work by his principal challenger, Raila
Odinga of the Orange Democratic Movement (ODM).
Few African countries have experienced the broad-based renewal of
their economies that Kenya has enjoyed since 2005. After nearly two
decades of zero to negative economic per capita growth, Kenya turned
the corner in 2004 with an aggregate growth rate of 5.1 percent. This
rose to 5.7 percent in 2005 and 6.1 percent in 2006--and continues to
rise. Tourism is booming. The value of agricultural production rose
12.1 percent in 2006 as Kenya benefited from high commodity prices,
better management and marketing of agricultural products, and rising
production. The contrast with 2001, when electricity and water
shortages turned Nairobi into a ghost capital, is striking. Kenyans
have not enjoyed such prosperity since the mid-1960s and early
seventies when Jomo Kenyatta, Kenya's first President, governed their
country.
Therein explains both Kibaki's success and his problem. When Kibaki
was elected to succeed former President Daniel arap Moi in December
2002, public expectations were high that he and his government would
reverse Moi's dismal record of economic stagnation and predatory rule.
Kibaki had been swept into power by a broad coalition of parties, the
National Alliance Rainbow Coalition or NARC, beating Uhuru Kenyatta of
the Kenya African National Union (KANU) by nearly two-to-one in the
popular vote. Ururu, Jomo Kenyatta's son, was Moi's hand-picked
candidate to be his successor. NARC also won control of Kenya's
Parliament in the 2002 voting. Democracy had triumphed. But would
democracy deliver by improving lives? It did, but not in the manner
that many had hoped.
Instead of governing via the big tent that NARC had established
during the runup to the election, Kibaki relied on a small group of
leaders drawn from his own Kikuyu ethnic group and the related Meru and
Embu communities. Dubbed the ``Mount Kenya Mafia,'' because its members
came from ethnic communities that inhabit the slopes around Mt. Kenya,
the group controlled the Ministries of Finance, Internal Security,
Justice and Information, arguably the key positions of government.
Kibaki began his term in ill-health, the result of a debilitating auto
accident before the 2002 election, and at least one stroke following
his inauguration. During the first half of his Presidency, until
November 2005, he relied heavily on the ``Mafia.'' This group was
determined to run Kenya as the country had been run during Kenyatta's
time--soundly managed, both with respect to macroeconomic policy and
delegation to the civil service and business community. In marked
contrast to Moi, Kibaki and his inner circle did not micromanage.
Individual Kenyans enjoyed more personal freedom, both political and
economic, than at any time since independence.
The result was that the Kenyan economy began to regain its position
as the dominant economy in East Africa. Growth, despite persistent
corruption, resumed. Parastatal organizations (state owned
corporations), including the marketing boards for coffee and tea and
sugar factories functioned for the first time in years. Ditto for other
organizations such as the Kenya Meat Commission, and Kenya Cooperative
Creameries, corporations that had been driven into bankruptcy or near
bankruptcy by Moi. Ditto too for Kenya's universities, which had also
been compromised during the Moi era. In sum, economic growth and the
rejuvenation of institutions was broad based, but perceived by many
Kenyans as being Kikuyu controlled. The same perception that had dogged
the Kenyatta regime at the end of the 1970s, and which triggered the
ruinous policies of redistribution during the Moi era, now dogged
Kibaki and his government--that Kikuyus and related communities run the
government at the expense of other groups, even though all regions of
Kenya and thus all ethnic groups have arguably benefited from Kibaki's
rule. Given the fact that Kenyan elections have always involved the
mobilization of ethnic communities by local and regional bosses, the
likely scenario for 2007 became clear as early as 2005. While the
government would justifiably run on its record at turning the economy
around and instituting other reforms, the opposition would cohere into
broad-based coalition that played on fears of Kikuyu domination.
A nationwide referendum held in November 2005 to approve a new
constitution for Kenya was a prelude of these strategies. Since the
return of multiparty politics in 1992, the various factions that
comprise Kenya's political elite have struggled to arrive at a new
constitution. The Constitution of Kenya Review Commission presented a
draft constitution prior to the 2002 elections, but neither its draft
nor an amended version was ever passed by Kenya's Parliament. The
Kibaki government then formulated its own draft which it presented to
the Kenyan public. It was immediately opposed by an amalgam of
political leaders and parties from both inside and outside the
government, including Raila Odinga, then Minister for Works and
Housing. He had long argued that Kenya should return to a parliamentary
form of government and institute a measure of federalism, or
``Majimbo,'' to protect the interests of Kenya's 42 ethnic groups. The
son of Kenya's first Vice President, Odinga draws an immense following
from his home region of Nyanza, the homeland of the Luo people. He is
also immensely popular in Nairobi, where he has represented the Langata
constituency since 1992 and where he appeals to younger voters. During
the runup to the 2002 elections, Odinga campaigned tirelessly for
Kibaki and was widely recognized as the key to Kibaki's victory.
However, he soon became marginalized by the inner circle around Kibaki,
especially when he demanded to be appointed Prime Minister in the new
government.
The constitutional referendum held in November 2005 was a political
disaster for Kibaki, as Odinga and his allies persuaded Kenyans to
reject the proposed constitution by a nearly 3:2 margin. Opponents
included Uhuru Kenyatta; Kalonzo Musyoka, then Kenya's Foreign Minister
and a prominent Kamba leader from Eastern Province; and Musalia
Mudavadi, a prominent Luhya leader from Western Kenya. Because the
Election Commission of Kenya had assigned the symbol of an orange to
the ``No'' side of the ballot (as contrasted to a banana for those
wishing to vote ``Yes''), the group soon took on the name of the Orange
Democratic Movement or ODM. They drew broad support from across Kenya
except in Central Province, the Kikuyu homeland and Kibaki's political
base. In defeating the proposed constitution, they also demonstrated
that a coalition of ethnic groups mobilized in opposition to the
``Mount Kenya'' groups was a viable strategy for 2007. Kibaki and his
advisors also played into their hands by dismissing Odinga, Musyoka,
and others from the cabinet following the referendum defeat. The battle
lines for 2007 had been drawn.
By June 2007, this year's elections had boiled down to a contest
between Kibaki and his supporters telling Kenyans ``reelect us, because
you have not had it this good in years''; versus Odinga and his allies
in ODM, who were quietly organizing Kenyans whose ethnic communities
did not hold prominent positions in the Kibaki government. ODM has not
run an explicitly ``anti-Kikuyu'' campaign. It has not had to; a fact
unappreciated by the President and his advisors. They also made the
mistake of believing that the ODM would fail to unite around a single
Presidential nominee.
Because ODM had become a catchall coalition of those opposing the
government, and because this coalition included at least four viable
aspirants to the Presidency--Odinga, Kenyatta, Musyoka, and Mudavadi--
both Kibaki and the Nairobi ``pundocracy'' concluded that ODM would
eventually split. Kenyan opposition parties have historically done so,
and a split would allow the President to win reelection easily. Based
on the usual ``ethnic arithmetic'' employed by Kenya's political elite,
the pundits rightly reasoned that the President would win at least 40
percent of the vote--from Central Province, the Kikuyu homeland; from
Eastern Province, the homeland of the Embu and Meru peoples; and from
some Kamba areas which had long supported Kibaki. The President could
also count on a significant number of votes, perhaps an outright
majority, from Nairobi, and from Kikuyu minority areas in the Rift
Valley Province, where Kikuyus comprise between a fifth and a quarter
of the population. In this analysis, while Kibaki might be returned
with only a plurality of the vote, he had little to fear.
Whereas Kibaki's ethnic arithmetic on his support base is proving
correct, the assumption that ODM would split into squabbling factions
of roughly equal size led by each of its top leaders has turned out to
be wrong. After Raila Odinga won the party's Presidential nomination,
only Kalonzo Musyoka decided to hive off and form his own party, ODM-
Kenya, to contest the Presidency. Odinga shrewdly picked Musalia
Mudavadi as his Vice Presidential running mate immediately after his
own nomination thereby keeping the Luhya leader in the Orange fold.
Most significantly, Odinga has been able to retain the support of a
group of prominent younger Kalenjin leaders from the former ruling
party, KANU, including William Ruto; while Uhuru Kenyatta, still the
nominal leader of KANU, decided to sit this election out. Poor Kenyatta
was caught in a bind when his mother, Mama Ngina Kenyatta and the third
wife of Kenya's first President, announced that she was supporting
Kibaki. Former President Daniel arap Moi also encouraged Uhuru to do
the same, and he complied. Both Moi and Mama Ngina have been shielded
from prosecution for alleged acts of corruption by Kibaki's government,
and shudder at the prospect of Kibaki being replaced by a government
headed by Raila Odinga. The result, however, is that while the leader
of KANU and the formal leader of the opposition is now supporting the
Kibaki, most other leaders of his party, which draws most of its
current support from the Kalenjin peoples of the Rift Valley, are
backing Raila. With the exception of the defections of Kalonzo Musyoka
and Kenyatta, who is no longer a candidate, ODM has remained largely
intact.
With less than 5 weeks to go before Kenyans go to the polls, the
Presidential contest has come down to a three-way race that is too
close to call. If the public opinion polls are valid, Raila Odinga may
nip out the incumbent President by two to three percentage points or
less. This would be Kenya's closest election since the country's return
to multiparty politics in 1992.
While the validity of the public opinion polls is always
questioned, the quality of survey research and market research in Kenya
is amongst the best in Africa. The surveys are conducted on a random
sample basis, and most (though not all) polling organizations strive to
reach a level of accuracy of plus or minus three percentage points.
Perhaps most important, the major polls, such as Steadman and Gallup,
have been reporting similar and consistent results since September. At
the aggregate level, i.e., for Kenya as a whole, the latest Steadman
poll, released on November 30 (based on 2709 interviews conducted
between November 17 and 19) has Odinga up by 44 percent to 43 percent
for Kibaki, with 11 percent favoring Kalonzo Musyoka and only 2 percent
undecided or favoring minor candidates. Similarly, the latest Gallup
poll, released on November 22 (but based on interviews conducted
between October 25 and November 10) has the race at 45 percent for
Odinga, 42 percent for Kibaki, and 11 for Musyoka. As both polls have a
margin of error of 2 to 3 percentage points, it is possible that Kibaki
may in fact be in a dead heat or have a narrow lead of 1 percentage
point.
The other consistent result from the major polls is their
confirmation of the candidates' ethno-regional bases of support. Thus,
Steadman (and the earlier Gallup poll) reports that Kibaki enjoys an
overwhelming lead of 92 percent in Central Province, the Kikuyu
homeland, but fails to command a majority anywhere else. Kibaki also
commands a plurality of 46 percent in Nairobi and 48 percent in Eastern
Province, the homeland of the Embu and Meru people, and of the Kamba.
By contrast, Raila Odinga is supported by the majority of likely
voters in five provinces--86 percent in Nyanza Province, 73 percent in
Western Province, 51 percent in Coast Province, 65 percent in the
sparsely populated North Eastern Province; and 54 percent in Rift
Valley Province. Most Kalenjins in Rift Valley and voters from other
smaller groups in the province, who once followed Moi, are apparently
deserting the former President. They are listening more to younger KANU
leaders, such as William Ruto, who are backing Odinga, Indeed, a major
sub-theme of the 2007 election is that the former President is no
longer a political force. Odinga also has a strong following in
Nairobi. Musyoka, not surprisingly, does best in the Kamba areas of
Eastern Province, but is running slightly behind Kibaki in the province
as a whole.
A summary of the latest Steadman poll by province is reported in
the table below. Most interesting is that not only does Kibaki's
support vary greatly from one province to the next, but his support and
the support for his two principal opponents closely track the results
from the constitutional referendum of November 2005. Where the
referendum passed with an overwhelming vote as in Central Province,
Kibaki is also far ahead in the polls. Where the referendum barely
passed, as in Eastern Province, he is in a close race. And where the
referendum was rejected, as it was by large margins as in Nyanza and
Coast Provinces, he is far behind. Skeptics might reject the results of
recent surveys in Kenya, but they cannot ignore the pattern of voting
in the referendum, a pattern that will be repeated in the December
election.
The bottom line is that the outcome of the 2007 Presidential
election will most likely turn on which candidate can turn out his
supporters in the greatest numbers. Although Kibaki has been
consistently behind in the polls, the gap has narrowed to the point
that the two leading candidates are in a statistical dead heat. Kibaki
is also likely to benefit from a higher level of turnout amongst his
political base in Central Province than Raila Odinga will obtain from
supporters elsewhere in the country. Central Province has historically
been the epicenter of Kenyan politics. Education and literacy levels,
two determinants of public interest in elections and turnout worldwide,
are also highest in Central. Odinga and ODM, however, have managed to
establish themselves as a party to reckon with across a much broader
ethnic and geographical segment of the electorate. There is also some
indication that he appeals to younger and first-time voters more than
Kibaki.
The wild card in this mix is Kalonzo Musyoka, the candidate of ODM-
Kenya. Running a distant third, he can continue his candidacy through
the election, and probably spoil the outcome for Kibaki. Or, he can
fold his campaign and throw his support behind the President or Odinga.
Given the popularity of the President in Eastern Province, Musyoka's
home turf, it is more likely that he would back the incumbent. But at
what price? He has already served in the Cabinet, and only the promise
of appointment as Kenya's Vice President is likely to bring him into
the President's camp.
Because the election is too close to call, it will also test
Kenya's fledgling democracy in at least two ways. The first challenge
is whether the Electoral Commission of Kenya (ECK) can administer a
credible election in which the losers accept the verdict, even if the
vote is close. In a country where allegations of ``rigging'' are the
rhetoric of politics, the ECK must be fastidious in its approach. So
too must election observers, both domestic and international, because
in a close election, any assessment of how the polls are conducted can
fuel post-election discontent.
The second challenge is that this is the first time since Kenya's
independence in 1963 that an incumbent President faces a genuine
prospect of defeat at the polls. The stakes are high, and the incentive
to cross the line of propriety and engage in questionable practices is
there for both candidates. Both Kibaki and Odinga must rein in their
activists, lest the final weeks of the campaign be marked by campaign
violence. The international community, including the United States,
also has a role to play by encouraging both leaders and their
lieutenants to let Kenyans exercise their franchise freely and with the
confidence that their ballots will be counted accurately.
______
Orange Democratic Movement (ODM) Position Paper
EXECUTIVE SUMMARY
1. ODM rejects the 2007 Presidential Election Results announced by
the Electoral Commission of Kenya (ECK/The Commissioner) on grounds of
massive vote rigging. Consequently a special meeting of ODM
Parliamentary Elect and the Party/Presidential Campaign Secretariat
constituted a committee under the Chairmanship of Hon. Dalmas Otieno MP
elect of Rongo Constituency. The Terms of Reference of the committee is
to carry out Audit and Reconcile the Tallies for 2007 Presidential
Election Results; report on the true winner, confirm the magnitude of
theft and suggest the way forward.
2. The Committee reviewed voting procedures in Polling Stations,
Procedures for reporting Presidential Election results, highlighted why
ODM is disputing the results, analyzed returns from the Agents,
Constituency Tallying Centre and National Tallying Centre at KICC and
has prepared the report which is summarized here below.
3. The Electoral Commission errored when it announced on 30th
December 2007 that Mwai Kibaki won 2007 Presidential Elections, having
allegedly garnered 4,584,721 votes against the Tally of Raila Odinga of
4,352,993 resulting in alleged lead of 231,728 votes.
4. Mwai Kibaki was fraudulently added 471,063 votes and therefore
did not win the election.
5. Raila Odinga actually won the 2007 Presidential Elections. He
garnered 4,356,279 votes against the tally of Mwai Kibaki 4,065,949 a
lead of 246,957 votes.
6. Documentary evidence available confirm that massive rigging of
votes took place in the Constituency Tallying Centres and National
Tallying Centre at KICC. In addition the following are some of the
reasons why ODM rejected the 2007 Presidential Election Results:
6.1 The ECK failed to set up a National Tallying Centre to
facilitate transparent and objective tallying of Presidential
votes. This was against the law and allowed ECK officials to
receive the results eventually altered from the constituencies
which they unilaterally inflated votes for Mwai Kibaki.
6.2 ECK announced Presidential Results from computer print
outs without reference to the supporting Form 16A as required
by law. This confirms the deliberate action by ECK officials to
inflate votes to Mwai Kibaki.
6.3 ECK announced results from some constituencies which
were different from those in Form 16A forwarded by the
Returning Officers. This was confirmed in 19 Constituencies
where ECK officials inflated votes to Kibaki.
6.4 In 47 Constituencies Total Presidential votes cast
exceeded Total votes cast for all the Parliamentary Candidates
by large margin. It is illegal for a voter to go to the polling
station and only obtain ballot papers for the Presidential
Candidates and place that one only in the ballot box but
decline or otherwise refuse to obtain ballot papers votes for
the Parliamentary and Civic Candidates. The omission should be
detected and action taken against the voter by the Presiding
Officer. The omission of such large magnitude as detected
during the audit is only possible if the Presiding Officer
facilitated the rigging by introducing ballot papers to inflate
the Presidential Candidates tallies.
6.5 In 42 Constituencies where Mwai Kibaki had majority
support the Presiding Officers refused to avail to ODM Agents
Form 16A. The intention was to facilitate the altering and
inflation of votes in favor of Mwai Kibaki. In some cases where
Form 16A had been correctly filled at the Constituencies
Tallying Centres, ECK officials amended the results at KICC or
filled new Forms 16A to inflate votes for Mwai Kibaki.
Available information indicate that ECK officials have, since
the announcement of the results, followed up with more
tampering of the documents to cover up evidence of the votes
inflated for Mwai Kibaki and other electoral malpractices.
6.6 ODM Agents were denied entry to Constituency Tallying
Centres in 21 Constituencies. In these cases security agents
were used to intimidate, threaten and forcefully evict ODM
Agents. This facilitated the rigging of elections at the
Constituency level through the introduction of more ballot
papers, mainly to inflate votes cast in favour of Mwai Kibaki.
6.7 ECK refused to act on disputes raised on results
announced for 47 constituencies that had been established by a
Tally Team made up of representatives of political parties and
observers to have grave voting anomalies. In most of these
Constituencies the actual votes cast for Kibaki were lower than
those announced by ECK.
6.8 Other than the rigging that alleged to have been taking
place at KICC, electoral malpractices took place in the
following Constituencies: Kieni; Molo; Juja; Limuru; Mwea;
Lari; Kirinyaga Central; Kandara; Gatundu South; North Imenti;
Igembe South; Igembe North; Tigania West; Nithi; Malava;
Kimilili; Ol Kalau; Naivasha; Mandera West, Kajiado North, Tetu
and Laikipia West. These were Hon. Mwai Kibaki's strongholds.
3.0 WAY FORWARD
3.1 In light of these electoral malpractices, it is doubted
whether justice will take place if ODM decides to seek redress through
the court. This should not be an option for ODM.
3.2 The Sovereign and unalienable right of Kenyans to freely elect
their representatives and government must be respected. Therefore
impartial mediation consisting of eminent International persons be
constituted to retract the results as announced by the Electoral
Commission that erroneously declared Mwai Kibaki a winner of 2007
Presidential Election and to address fundamental issues that made ODM
to reject the 2007 election.
3.3 ODM should not accept the option of re-tallying Presidential
votes using Form 16A from Constituencies or National Tallying Centres
as there is corroborating evidence that they have been tampered with
and doctored in favor of Mwai Kibaki. The re-tallying of results if
deemed absolutely necessary should only be accepted if Form 16A from
the Polling Stations are to be used or recounting of votes to tally
with the voters' names crossed out of the voters register.
3.4 ODM must continue pressuring Kibaki Administration through
sustainable peaceful mass action to respect free and fair General
Election as contained in the National Assembly and Presidential
Election Act Cap 7 of the Laws of Kenya. The past experience shows that
after return of peace before addressing fundamental cause of injustice
there will be no negotiation.
3.5 It is justice that will bring about long lasting peace and
International mediation process should consider the following:
3.5.1 Re-constitution of Electoral Commission afresh to
oversee Presidential Election run-off. The image of the current
ECK has been damaged beyond repair by facilitating and
participating in rigging Presidential Elections and erroneously
announcing Kibaki a winner purportedly under duress as the
Chairman of ECK later admitted.
3.5.2 Foreign Government and International Community should
not recognize Mwai Kibaki as the president of the Republic of
Kenya until the mediation process facilitated by
internationally reputable persons has successfully restored
justice and long lasting peace to Kenyan people. Mwai Kibaki
did not win the 2007 Presidential Elections.
3.5.3 The right of assembly and freedom of the media be
restored immediately to resuscitate democracy in Kenya. The
theft of the 2007 Presidential Election has caused the death of
democracy in Kenya.
3.5.4 Relief food and other essential goods must be
distributed to all the affected Kenyans without discrimination.
3.5.5 Extra-judicial killings, especially in police cells
and the arming of local militias such as Mungiki must stop
forthwith.
______
Theft of the 2007 Presidential Elections by Electoral Commission of
Kenya
1. INTRODUCTION
1.1 Elections are an integral part of the democratic process. They
are held to enable citizens to elect their representatives. This
underlines the fundamental importance of free and fair elections.
1.2 When an electoral process lacks integrity due to
irregularities, or because of open fraud, the people have the right to
withdraw support to that process and to those who have subverted it.
1.3 Kenyans struggled for decades to introduce multi-party
democracy. During those struggles many Kenyans were killed, maimed,
detained without trial and subjected to untold suffering. The
democratic gains that have been achieved by Kenya were undermined by
the open rigging of the 2007 General Elections by Mwai Kibaki in
collusion with the Electoral Commission of Kenya. In addition, Kibaki
has unleashed unimaginable brutality on Kenyans. The ongoing massacre
of innocent civilians by Kibaki and his henchmen is callous and
criminal.
1.4 In the meeting held on 31st December, 2007 attended by the
Pentagon Members, ODM Members of Parliament elect and Party/
Presidential Campaign Secretariats, it was resolved that a Committee be
constituted under Chairmanship of Hon. Dalmas Otieno, MP elect for
Rongo Constituency to carry out audit and reconcile the Tallies for
2007 Presidential Elections Results and report on the true winner and
confirm the magnitude of theft.
1.5 This report highlights the voting procedures in polling,
counting and tallying of Presidential elections; the magnitude of the
rigging during 2007 General and Presidential Elections by Mwai Kibaki;
and, a full analysis of why the ODM is disputing the 2007 Presidential
results announced by the Chairman of the ECK, Mr. Samuel Kivuitu. ODM's
position is supported by credible documentary evidence that
demonstrates the extent to which Kibaki has subverted the will of the
Kenyan people.
2. VOTING PROCEDURE IN A POLLING STATION
2.1 The voting procedures in a Polling Station are covered by
regulation 29 of National Assembly and Presidential Election Act
Chapter 7 of Laws of Kenya. Under Regulation 29(1) an elector who
enters a polling station/stream first produces both his/her National
Identity card and Voter's Card for the purpose of verification of
whether his/her name is in the Voters' Register for the Polling Centre
and the Constituency before receiving ballot papers. On confirmation
that the name is in the Register, the name is crossed out from the
Register and the voter proceeds to Clerk Number Two, Three and Four in
that order, to be handed over the ballot papers in different colours
for the presidential, parliamentary and civic candidates. After marking
the ballot papers and inserting them into the respective ballot boxes
placed in the open hall in the same room, the voter proceeds to last
Clerk who dips the elector's small left finger in indelible ink to
confirm that he/she has voted. The elector is then given back the
national identity card and voter's card duly pressed to indicate that
he/she has voted.
2.2 Under Section 29(4) a voter who knowingly fails to place a
ballot paper into a ballot box before leaving the place where the box
is situated shall be guilty of an offence and liable to a fine. It is
the responsibility of the Presiding Officer or Deputy Presiding Officer
to ensure that electors comply with this regulation. With this
arrangement, every voter who enters a polling station/stream to vote is
obliged to vote for presidential, parliamentary and civic candidates
listed on the ballot paper. In this respect, the total votes cast for
presidential candidates and those cast for parliamentary candidates in
the same polling station/stream are expected to be equal. The spoiled
votes must be duly marked ``rejected'' by the Presiding Officer.
3. PROCEDURE FOR REPORTING PRESIDENTIAL ELECTION RESULTS
3.1 Procedures for reporting presidential election results are
covered under Regulations 39 and 40 of the National Assembly and
Presidential Election Act, Chapter 7 of the Laws of Kenya. At the close
of counting of votes at each polling station, the Presiding Officer,
the candidates or their agents shall sign a declaration as set out in
Form 16A which shall state:
3.1.1 The name of the polling station;
3.1.2 The total number of registered electors for the
polling station;
3.1.3 The total number of valid votes cast at the polling
station;
3.1.4 The number of votes cast in favor of each candidate at
the polling station;
3.1.5 The number of votes that were rejected at the polling
station; and
3.1.6 The number of disputed votes at the polling station.
3.2 The Presiding Officer shall then:
3.2.1 Immediately announce the results of the voting at the
polling station before communicating the same to the Returning
Officer, and
3.2.2 Provide each candidate or agent with a copy of the
declaration of the results as summarized in Form 16A.
3.3 Regulation 39(1), states inter alia that upon the completion
of counting of votes, the Presiding Officer shall seal in separate
packets:
3.3.1 The counted ballot papers which are not disputed;
3.3.2 The rejected ballot papers together with the statement
relating thereto; and
3.3.3 The disputed ballot papers.
3.4 The Presiding Officer under Regulation 39(2) shall allow
candidates or their agents to affix their own seals on the packets
specified in Regulation 34. Thereafter, the Presiding Officer shall put
the three packets specified in Regulation 39(1) together with the
statements made under Regulations 37 and 38 and the declaration of
results made under Regulation 40 in the used ballot box after first
demonstrating to the candidates or their counting agents present that
it is empty. The ballot box is then sealed with the Electoral
Commission's seal and the candidates or their agents present may affix
their own seals on the ballot box. Thereafter, the ballot boxes
together with the statements made under Regulation 37 and 38 are
forwarded to the Returning Officer in the Constituency Tallying Centre.
3.5 Under Regulation 40(1), immediately after the results of the
poll for all polling stations in the constituency have been received,
the Returning Officer shall in the presence of the candidates or their
agents:
3.5.1 Tally the results from the polling stations for each
candidate without recounting the ballots that were not in
dispute;
3.5.2 Examine the ballot papers marked ``rejected,''
``rejection objected to,'' and ``disputed'' and confirm or vary
the decisions of the Presiding Officers with regard to the
validity of the ballot papers;
3.5.3 Publicly announce to the persons present the total
number of valid votes cast for each candidate in case of an
election of the President;
3.5.4 Publicly announce to persons present the total number
of valid votes cast for each candidate in the case of a
parliamentary election;
3.5.5 Publicly declare to the persons present the candidate
who has won the parliamentary election for the constituency;
3.5.6 Complete Form 17A set out in the First Schedule in
which he/she shall declare the:
i. Name of the constituency;
ii. Total number of registered voters;
iii. Votes cast for each candidate in each polling
station;
iv. Number of rejected votes for each candidate in
each polling station;
v. Aggregate number of votes cast in the
Constituency; and
vi. Aggregate number of rejected votes.
3.5.7 Sign and date the Form 17A and
i. Give any candidate or candidate's agent present a
copy of the Form, and
ii. Deliver to the Electoral Commission the original
of Form 16A together with Form 17A and Form 18
3.6 Under Regulation 40(2), the results of the Presidential
election in a Constituency shown in Form 16A shall be subject to
confirmation by the Electoral Commission after a tally of all the votes
cast in the election.
3.7 On receipt of the returns by way of Form 16A from the
Returning Officers, the Chairman of the Electoral Commission shall, as
the National Returning Officer for the Presidential Elections receive
and tally the results in the presence of the candidates or their
Agents. The candidates or their Agents have a right to peruse, review,
confirm or dispute the authenticity of each return submitted by a
Returning Officer based on Form 16A.
3.8 The law recognizes Form 16A as the only source of election
results. Any results not backed by Form 16A or that are backed by Form
16A that is not in conformity with the requirements of the National
Assembly and Presidential Elections Act are not valid results.
3.9 Under Regulation 40(3), the decisions of the Returning Officer
on the validity or otherwise of a ballot paper or a vote under this
Regulation shall be final except in an election petition.
3.10 In the case of a Presidential election whether or not forming
part of a joint election, the Electoral Commission shall hold a
certificate issued under Regulation 40(1), until the results of that
election in every constituency have been received and thereafter
publish a notice in the Gazette declaring the person who has received
the greatest number of votes in the election, and has complied with the
provision of section 5 of the Constitution, to have been elected the
President.
3.11 There is however an addendum to Regulation 40(1) that states
``the Electoral Commission may declare a candidate elected as the
President before all the Constituencies have delivered their results if
in its opinion the results that have not been received will not make a
difference as to the winner on the basis of section 5 of the
Constitution.''
3.12 Under Regulation 40(5) the Electoral Commission shall issue
and deliver a certificate in Form 18 to the candidate who shall be
elected President in the Presidential election at the time and place
where the new President shall take the oath of office.
3.13 Under Regulation 40(6) where a dispute arises over the
counting or tally of the votes, a candidate may within twenty-four
hours petition the Electoral Commission which shall have the power to
order and supervise a count and or tally as is appropriate provided
that the decision of the Electoral Commission shall be made within
forty-eight hours of such a petition.
4. WHY ODM IS DISPUTING THE 2007 PRESIDENTIAL ELECTION RESULTS
4.0 ODM rejects the results of the Presidential elections
announced by the ECK at KICC in Nairobi on grounds of massive fraud.
The following are the main reasons for the rejection of the results:
4.1 Deliberate Failure by ECK to Establish a National Tallying
Mechanism
4.1.1 The ECK failed, refused and deliberately avoided to
establish a National Tallying Mechanism through which it would,
as required by law, formally and publicly receive from each
Returning Officer the Constituency Results of the Presidential
votes. The Returning Officers submitted their returns (Form
16A) to the ECK in the absence of candidates or their duly
appointed Agents. ECK officials unilaterally received results
away from the public scrutiny by the candidates or their agents
and simply announced the results at the Press Centre. When ODM
Presidential Agents demanded access to the hall/room where ECK
was using to fraudulently change the results, armed police and
paramilitary officers barred their entry and denied them access
to what ECK was purportedly tallying.
4.1.2 When asked by ODM agents to confirm whether he had
established a National Tallying Mechanism and to allow ODM
agents into such a room, the Chairman of ECK referred them to
the Press Centre set up by ECK for communicating the results to
the press. These announcements were being made in the absence
of the concerned Returning Officers and without prior
verification of the returns by ODM agents.
4.1.3 There was therefore no public, transparent and
objective tallying of Presidential votes by ECK at the national
level.
4.2 Announcement of Results by ECK not Supported by Form 16A
The ECK announced Presidential Election Results for 48
Constituencies without any supporting mandatory Form 16A. This was
confirmed by physical examination of the files on the night of December
28, 2007 by ODM agents in the presence of ECK officials and the agents
of Mwai Kibaki. In the absence of Form 16A, ECK results were therefore
unacceptable as true and accurate results under the law and should not
have been announced.
4.3 Announcement of Results Different from those in Form 16A
4.3.1 The ECK announced Presidential election results that
were different from the results issued and confirmed by
Returning Officers and ODM agents in 39 Constituencies. In each
of these cases, either the votes allotted to Mwai Kibaki by the
ECK were higher than what had been recorded in Form 16A and
announced at the Constituency level or the votes allotted to
Raila Amolo Odinga were lower than the number which had been
recorded in Form 16A and announced at the Constituency level.
In some cases, votes for the two candidates were unilaterally
reduced or increased so as to maintain the original percentages
of votes cast.
4.4 Total Presidential Votes cast exceeded the Total Parliamentary
votes cast
4.4.1 Documentary evidence of fraud obtained from ECK
confirms that in 10 of the disputed constituencies the total
Presidential votes cast far exceeds the total Parliamentary
votes cast. This is an indication that vote alteration by ECK
took place after the voting.
4.5 Refusal by ECK Official to avail Form 16A to ODM Agents
4.5.1 Presiding Officers in 42 Constituencies controlled by
Mwai Kibaki refused, neglected and/or failed to make available
Form 16A at the close of polling and counting for purposes of
recording figures relating to the Presidential vote. Returning
Officers in these Constituencies did likewise at close of
tallying. They simply announced that they did not have Form 16A
and as such they could not fill and issue to the ODM agents the
relevant copies for their records and onward transmission to
Nairobi.
4.5.2 The intention was to avoid a paper trail of the
correct results and to lay the framework for altering and
inflating votes in favour of Mwai Kibaki at the National
Tallying Centre at the Kenyatta International Conference Centre
(K.I.C.C.) In some cases where the Form 16A were filled, the
Electoral Commission of Kenya (ECK) subsequently amended the
results by adding more votes in favour of Mwai Kibaki.
4.6 Denial of Entry by ODM Presidential Counting Agents to Polling
Stations
4.6.1 ODM Presidential Polling and Counting Agents were
denied entry or forcefully evicted from or denied entry into
some Polling or Tallying Stations. This was intended to deny
ODM the opportunity:
4.6.1.1 To verify the tallying of Votes;
4.6.1.2 To know the votes cast in favour of each of
the Presidential Candidate; and
4.6.1.3 To question any irregularities.
4.6.2 In addition, it provided Mwai Kibaki and PNU with the
opportunity to manipulate the figures either by adding the
numbers of votes cast in favour of Mwai Kibaki or reducing
those cast in favour of Raila Odinga.
4.6.3 In 21 of the disputed constituencies ODM candidates
and agents were physically assaulted, intimidated and harassed
by armed forces at the tallying stations. It is instructive to
note that these were constituencies where Ministers and other
senior Government officials come from.
4.7 Refusal by ECK to Act on the Audit of 48 Constituencies
As the results were being announced it became evident that some of
the results were at variance with those known to ODM through its agents
and candidates. After much protest it was agreed that a committee made
up of representatives of political parties and observers audit the
results that had been announced. In the end files of all 210
constituencies were audited and it was established that at least 48
constituencies had serious anomalies. The ECK refused to receive the
audit report when attempts were made to present it.
4.8 Contradictions during the ECK Press Announcements of the
Results.
There were contradictions evident in the progressive ECK
announcement of vote totals where earlier Presidential vote totals were
more than subsequent totals. This confusion has since been confirmed by
the ECK Chairman who has admitted publicly and unequivocally that he
made the announcement under duress and concerted pressure exerted by
Mwai Kibaki's Party of National Unity. He has further stated publicly
that he neither believes that Mwai Kibaki won the elections nor is he
in a position to state the exact number of votes that were cast in
favour of Mwai Kibaki. Another contradiction and concern is the public
admission during the ECK Chairman's announcement that some of the
returning officers had turned off their phones and may have been
cooking the results.
5.0 DISPUTED PRESIDENTIAL ELECTION RESULTS
Rigging in the 47 identified Constituencies are shown in Table 2
and detailed as follows:
5.1 Starehe (No. 03)
5.1.1 According to the ECK records at the Tallying Centre,
the Total Parliamentary votes cast was 70,853. However, the
Total Presidential votes, cast was given as 84,452 an increase
of 13,599 votes. The additional Presidential votes were added
to Mwai Kibaki.
5.1.2 Such a large number of voters could not have gone to
the Polling Station to vote for the President and decline or
otherwise refuse to cast their ballots for the Parliamentary
Candidates (Refer Table 4)
5.2 Westlands (No. 06)
5.2.1 According to the ECK records at the Tallying Centre,
the total Parliamentary votes cast was 79,605. However, the
total Presidential votes, cast was given as 86,241 an increase
of 6,636 votes. The additional Presidential votes were added to
Mwai Kibaki.
5.2.2 Again in this case, such a large number of voters
could not have gone to the Polling Station to vote for the
President and decline or otherwise refuse to cast their ballots
for the Parliamentary Candidates. (Refer Table 4)
5.3 Kasarani (No. 07)
5.3.1 According to the ECK records at the Tallying Centre,
the Total Parliamentary votes cast was 112,647. However, the
Total Presidential votes, cast was given as 116,742 an increase
of 4,095 votes. The additional Presidential votes were added to
Mwai Kibaki.
5.3.2 Such a large number of voters could not have gone to
the Polling Station to vote for the President and decline or
otherwise refuse to cast their ballots for the Parliamentary
Candidates. (Refer Table 4)
5.4 Embakasi (No. 08)
5.4.1 According to the ECK records at the Tallying Centre,
the Total Parliamentary votes cast was 103,570. However, the
Total Presidential votes, cast was given as 141,125 an increase
of 37,555 votes. The additional Presidential votes were added
to Mwai Kibaki.
5.4.2 It is inconceivable that such a large number of voters
could have gone to the Polling Stations to vote only for the
President in a Constituency where there were 22 Parliamentary
contestants and decline or otherwise refuse to cast their
ballots for any of the Parliamentary Candidates. (Refer Table
4)
5.5 Kisauni (No. 10)
5.5.1 According to the ECK records at the Tallying Centre,
the Total Parliamentary votes cast was 60,582. However, the
Total Presidential votes, cast was given as 66,964 an increase
of 6,382 votes. The additional Presidential votes were added to
Mwai Kibaki.
5.5.2 One wonders why such a large number of voters could
have gone to the Polling Stations to vote only for the
President and decline or otherwise refuse to cast their ballots
for their preferred choice of Parliamentary Candidates. (Refer
Table 4)
5.6 Bahari (No. 16)
5.6.1 According to the ECK records at the Tallying Centre,
the Total Parliamentary votes cast was 46,229. However, the
Total Presidential votes, cast was given as 47,695 an increase
of 1,466 votes. The additional Presidential votes were added to
Mwai Kibaki.
5.6.2 Such a large number of voters could not have gone to
the Polling Station to vote for the President and decline or
otherwise refuse to cast their ballots for the Parliamentary
Candidates. (Refer Table 4)
5.7 Kaloleni (No. 17)
5.7.1 According to the ECK records at the Tallying Centre,
the Total Parliamentary votes cast was 28,740. However, the
Total Presidential votes, cast was given as 41,231 an increase
of 12,491 votes. The additional Presidential votes were added
to Mwai Kibaki.
5.7.2 Again, there's no good reason why such a large number
of voters could have gone to the Polling Stations to vote only
for the President and decline or otherwise refuse to cast their
ballots for any of the 24 Parliamentary Candidates. (Refer
Table 4)
5.8 Malindi (No. 19)
5.8.1 According to the ECK records at the Tallying Centre,
the Total Parliamentary votes cast was 33,500. However, the
Total Presidential votes, cast was given as 37,429 an increase
of 3,929 votes. The additional Presidential votes were added to
Mwai Kibaki.
5.8.2 Such a large number of voters could not have gone to
the Polling Station to vote for the President and decline or
otherwise refuse to cast their ballots for the Parliamentary
Candidates. (Refer Table 4)
5.9 Taveta (No. 26)
5.9.1 According to the ECK records at the Tallying Centre,
the Total Parliamentary votes cast was 13,550. However, the
Total Presidential votes, cast was given as 16,817 an increase
of 2,267 votes. The additional Presidential votes were added to
Mwai Kibaki.
5.9.2 Such a large number of voters could not have gone to
the Polling Station to vote for the President and decline or
otherwise refuse to cast their ballots for the Parliamentary
Candidates. (Refer Table 4)
5.10 Voi (No. 29)
5.10.1 According to the ECK records at the Tallying Centre,
the Total Parliamentary votes cast was 21,043. However, the
Total Presidential votes, cast was given as 22,560 an increase
of 1,517 votes. The additional Presidential votes were added to
Mwai Kibaki.
5.10.2 Given the fact that in this Constituency there were
15 Parliamentary Candidates, such a large number of voters
could not have gone to the Polling Station to vote for the
President and decline or otherwise refuse to cast their ballots
for any of the Parliamentary Candidates. (Refer Table 4)
5.11 Mandera West (No. 38)
5.11.1 ECK increased Mwai Kibaki's votes by 900 from 7,857
to 8,757.
5.11.2 Parliamentary votes of 16,911 exceed the Presidential
votes cast of 16,528 by 383. (Refer Table 4)
5.12 Igembe South (No. 47)
5.12.1 ECK increased Mwai Kibaki's votes by 22,079 from
37,931 to 60,010.
5.12.2 ECK reduced Raila Odinga's votes by 1,836 from 3,950
to 2,114.
5.12.3 The Total Presidential Votes cast of 63,247 exceed by
8,649 the Total Parliamentary votes cast of 54,598 a good
evidence of tampering.
5.12.4 Presiding Officers and Returning Officer at the
Constituency level deliberately refused, neglected and/or
failed to make available Form 16A at the close of polling and
counting. The law requires that the Form be filled in public
under the supervision of the Agents and copies availed to them.
(Refer Table 4)
5.13 Igembe North (No. 48)
5.13.1 ECK inflated Mwai Kibaki's votes by 5,720 from 42,029
to 47,749.
5.13.2 ECK reduced Raila Odinga's votes by 3,585 from 5,508
to 1,923.
5.13.3 The Total Presidential votes cast 50,239 exceeds the
total Parliamentary votes cast 50,021 by 218.
5.13.4 Presiding Officers and Returning Officer at the
Constituency level deliberately refused, neglected and/or
failed to make available Form 16A at the close of polling and
counting. The law requires so that the Form be filled in public
under the supervision of the Agents and copies availed to them.
(Refer Table 4)
5.14 Tigania West (No. 49)
5.14.1 ECK increased Mwai Kibaki's votes by 4,384 from
33,304 to 37,688.
5.14.2 Presiding Officers and Returning Officer at the
Constituency level deliberately refused, neglected and/or
failed to make available Form 16A at the close of polling and
counting. The law requires that the Form be filled in public
under the supervision of the Agents and copies availed to them.
5.14.3 The Total Presidential votes 38,974 exceed the Total
Parliamentary votes of 38,672 by 301.
5.15 North Imenti (No. 51)
5.15.1 Form 16A dated 28/12/2007 was unilaterally altered by
ECK at KICC to have Mwai Kibaki's votes inflated by 16,216 from
62,468 as declared and recorded by ECK at the Constituency
level to 78,684.
5.15.2 A new Form 16A dated 29/12/2007 was issued by ECK at
KICC with conflicting figures and signed by the same official
now inflating Mwai Kibaki's votes to 84,006 and maintaining
Raila Odinga's votes at 3,370.
5.15.3 Presiding Officers and Returning Officer at the
Constituency level deliberately refused, neglected and/or
failed to make available Form 16A at the close of polling and
counting. The law requires that the Form may be filled in
public under the supervision of the Agents and copies availed
to them.
5.15.4 The Total Presidential votes cast, 89,532 exceed the
Parliamentary votes cast of 84,158 by 5,374 votes, a good
evidence of tampering.
5.15.5 Evidence attached hereto.
5.16 South Imenti (No. 53)
5.16.1 According to the ECK records at the Tallying Centre,
the Total Parliamentary votes cast was 74,488. However, the
Total Presidential votes, cast was given as 78,803 an increase
of 4,315 votes. The additional Presidential votes were added to
Mwai Kibaki.
5.16.2 In this Constituency, there were 15 Parliamentary
contestants. It is therefore unlikely that such a large number
of voters could have gone to the Polling Stations to vote only
for the President and decline or otherwise refuse to cast their
ballots for the Parliamentary and Civic Candidates. (Refer
Table 4)
5.17 Nithi (No. 54)
5.17.1 ECK increased Mwai Kibaki's votes by 29,348 from
66,345 to 95,693.
5.17.2 Presiding Officers and Returning Officer at the
Constituency level deliberately refused, neglected and/or
failed to make available Form 16A at the close of polling and
counting. The law requires that the Form be filled in public
under the supervision of the Agents and copies availed to them.
5.17.3 The Total Presidential votes 99,006 exceed the Total
Parliamentary votes of 95,981 by 3,025. The additional votes
were also added to the Parliamentary tally. (Refer Table 4)
5.18 Runyenjes (No. 57)
5.18.1 According to the ECK records at the Tallying Centre,
the Total Parliamentary votes cast was 58,996. However, the
Total Presidential votes, cast was given as 63,943 an increase
of 4,947 votes. The additional Presidential votes were added to
Mwai Kibaki.
5.18.2 With 20 Parliamentary contestants it is most unlikely
that such a large number of voters could have gone to the
Polling Stations to vote only for the President and decline or
otherwise refuse to cast their ballots for their preferred
Parliamentary Candidates. (Refer Table 4)
5.19 Ol Kalou (No. 79)
5.19.1 ECK inflated Mwai Kibaki's votes by 26,718 from
50,280 to 76,998.
5.19.2 ECK increased Raila Odinga's votes by 176 from 243 to
419.
5.19.3 Presiding Officers and Returning Officer at the
Constituency level deliberately refused, neglected and/or
failed to make available Form 16A at the close of polling and
counting so that the Form may be filled in public under the
supervision of the Agents and copies availed to them.
5.19.4 The Total Parliamentary votes, 79,315 exceed the
Total Presidential votes of 78,097 by 1,218. (Refer Table 4)
5.20 Kieni (No. 82)
5.20.1 Form 16A dated 28/12/2007 was unilaterally altered by
ECK at KICC to have Mwai Kibaki's votes inflated by 17,677 from
54,377 as declared and recorded by ECK at the Constituency
level to 72,054.
5.20.2 A new Form 16A dated 29/12/2007 was issued by ECK
with conflicting figures and signed by a new official that
inflated Mwai Kibaki's votes to 72,054 and slightly increasing
Raila Odinga's votes by 67 from 513 to 580.
5.20.3 Presiding Officers and the Returning Officer at the
Constituency level deliberately refused, neglected and/or
failed to make available Form 16A at the close of polling and
counting. The law requires that the Form be filled in public
under the supervision of the Agents and copies availed to them.
5.20.4 Evidence attached hereto.
5.21 Mwea (No. 87)
5.21.1 Form 16A dated 28/12/2007 was unilaterally altered by
ECK at KICC to have Mwai Kibaki's votes inflated by 2,470 from
59,904 as declared and recorded by ECK at the Constituency
level to 62, 374.
5.21.2 A new Form 16A dated 29/12/2007 was issued by ECK at
KICC with conflicting figures and signed by the same official
now inflating Mwai Kibaki's votes to 62,374 and reducing Raila
Odinga's votes by 237 from 550 to 313.
5.21.3 Presiding Officers and Returning Officer at the
Constituency level deliberately refused, neglected and/or
failed to make available Form 16A at the close of polling and
counting. The law requires that the Form be filled in public
under the supervision of the Agents and copies availed to them.
5.21.4 The Total Presidential votes cast 63,376 exceed by
1,000 the total Parliamentary votes cast of 62,376. However,
the original figures for Raila Odinga and Mwai Kibaki agree
with the total Parliamentary votes cast.
5.21.5 Evidence attached hereto.
5.22 Kirinyaga Central (No. 90)
5.22.1 Form 16A dated 28/12/2007 was unilaterally altered by
ECK at KICC to have Mwai Kibaki's votes increased by 10,353
from 43,866 as declared and recorded by ECK at the Constituency
level to 54,219.
5.22.2 A new Form 16A dated 29/12/2007 was issued by ECK at
KICC with conflicting figures and signed by the same official
now inflating Mwai Kibaki's votes to 54,219 and increasing
Raila Odinga's votes by 13 from 580 to 593.
5.22.3 Presiding Officers and Returning Officer at the
Constituency level deliberately refused, neglected and/or
failed to make available Form 16A at the close of polling and
counting. The law provides that the Form be filled in public
under the supervision of the Agents and copies availed to them.
5.22.4 The Total Presidential votes cast were 55,380 against
Total Parliamentary votes cast of 44,446 a difference of 10,934
votes.
5.22.5 Evidence attached hereto.
5.23 Mathioya (No. 92)
5.23.1 According to the ECK records at the Tallying Centre,
the Total Parliamentary votes cast was 39,052. However, the
Total Presidential votes, cast was given as 44,761 an increase
of 5,709 votes. The additional Presidential votes were added to
Mwai Kibaki.
5.23.2 Such a large number of voters could not have gone to
the Polling Stations to vote for the President and decline or
otherwise refuse to cast their ballots for the Parliamentary
Candidates. (Refer Table 4)
5.24 Kiharu (No. 93)
5.24.1 According to the ECK records at the Tallying Centre,
the Total Parliamentary votes cast was 85,255. However, the
Total Presidential votes, cast was given as 87,077 an increase
1,822 votes. The additional Presidential votes were added to
Mwai Kibaki.
5.24.2 Such a large number of voters could not have gone to
the Polling Station to vote for the President and decline or
otherwise refuse to cast their ballots for the Parliamentary
Candidates. (Refer Table 4)
5.25 Kigumo (No. 94)
5.25.1 According to the ECK records at the Tallying Centre,
the Total Parliamentary votes cast was 58,879. However, the
Total Presidential votes, cast was given as 59,984 an increase
of 1,105 votes. The additional Presidential votes were added to
Mwai Kibaki.
5.25.2 Such a large number of voters could not have gone to
the Polling Station to vote for the President and decline or
otherwise refuse to cast their ballots for the Parliamentary
Candidates. (Refer Table 4)
5.26 Kandara (No. 96)
5.26.1 Form 16A undated was unilaterally altered by ECK at
KICC to have Mwai Kibaki's votes increased by 36,618 from
33,825 as declared and recorded by ECK at the Constituency
level to 70,443.
5.26.2 Form 16A is filled by two different persons.
5.26.3 A new Form 16A dated 29/12/2007 was issued by ECK at
KICC with conflicting figures and signed by the same official
now inflating Mwai Kibaki's votes by 36,618 to 70,443 and
maintaining Raila Odinga's votes at 295.
5.26.4 Presiding Officers and Returning Officer at the
Constituency level deliberately refused, neglected and/or
failed to make available Form 16A at the close of polling and
counting. The law requires that the Form be filled in public
under the supervision of the Agents and copies availed to them.
5.26.5 The Total Presidential votes cast 71,364 exceed the
total Parliamentary votes cast 69,896 by 1,468.
5.26.6 Evidence attached hereto.
5.27 Gatanga (No. 97)
5.27.1 According to the ECK records at the Tallying Centre,
the Total Parliamentary votes cast was 69,585. However, the
Total Presidential votes, cast was given as 73,418 an increase
of 3,833 votes. The additional Presidential votes were added to
Mwai Kibaki.
5.27.2 Such a large number of voters could not have gone to
the Polling Station to vote for the President and decline or
otherwise refuse to cast their ballots for the Parliamentary
Candidates. (Refer Table 4)
5.28 Gatundu South (No. 98)
5.28.1 Form 16A dated 28/12/2007 was unilaterally altered by
ECK at KICC to have Mwai Kibaki's votes inflated by 10,644 from
41,836 as declared and recorded by ECK at the Constituency
level to 52,480.
5.28.2 A new Form 16A dated 29/12/2007 was issued by ECK at
KICC with conflicting figures and signed by the same official
now inflating Mwai Kibaki's votes to 52,480 and increasing
Raila Odinga's votes by 37 from 388 to 425.
5.28.3 Presiding Officers and Returning Officer at the
Constituency level deliberately refused, neglected and/or
failed to make available Form 16A at the close of polling and
counting. The law requires that the Form be filled in public
under the supervision of the Agents and copies availed to them.
5.28.4 ODM records show that Mwai Kibaki received 41,836
votes while Raila Odinga received 388.
5.28.5 Evidence attached hereto.
5.29 Juja (No. 100)
5.29.1 Form 16A dated 28/12/2007 was unilaterally altered by
the ECK at KICC to have Mwai Kibaki's votes inflated by 52,097
from 48,293 as declared and recorded by the ECK at the
Constituency level to 100,390.
5.29.2 A new Form 16A dated 29/12/2007 was issued by ECK at
KICC with conflicting figures and signed by the same official
now inflating Mwai Kibaki's votes to 100,390 and increasing
Raila Odinga's votes by 7,671 from 6,081 to 13,752.
5.29.3 Presiding Officers and Returning Officer at the
Constituency level deliberately refused, neglected and/or
failed to make available Form 16A at the close of polling and
counting so that the Form could be filled in public under the
supervision of the Agents and copies availed to them.
5.29.4 A Letter from the Returning Officer to the ECK
confirm that the votes cast for Mwai Kibaki was 48,293, total
Parliamentary votes cast was 37,212 while total Presidential
votes cast is 56,519. These disparities indicate tampering with
both the Presidential and Parliamentary votes.
5.29.5 Evidence attached hereto.
5.30 Kikuyu (No. 103)
5.30.1 According to the ECK records at the Tallying Centre,
the Total Parliamentary votes cast was 85,879. However, the
Total Presidential votes, cast was given as 87,257 an increase
of 1,378 votes. The additional Presidential votes were added to
Mwai Kibaki.
5.30.2 Such a large number of voters could not have gone to
the Polling Station to vote for the President and decline or
otherwise refuse to cast their ballots for the Parliamentary
Candidates. (Refer Table 4)
5.31 Limuru (No. 104)
5.31.1 Form 16A dated 29/12/2007 was unilaterally altered by
ECK at KICC to have Mwai Kibaki's votes inflated by 7,601 from
40,788 as declared and recorded by ECK at the Constituency
level to 48,384 and further adjusted by the ECK to 48,389.
5.31.2 A new Form 16A dated 29/12/2007 was issued by ECK at
KICC with conflicting figures and signed by the same official
now inflating Mwai Kibaki's votes to 48,384 and reducing Raila
Odinga's votes by 210 from 3,144 to 2,934.
5.31.3 Presiding Officers and Returning Officer at the
Constituency level deliberately refused, neglected and/or
failed to make available Form 16A at the close of polling and
counting. The law requires that the Form be filled in public
under the supervision of the Agents and copies availed to them.
5.31.4 The Presidential votes allocated to Mwai Kibaki alone
of 48,389 exceed by 3,620 the total Parliamentary votes cast of
44,769.
5.31.5 The total Presidential votes of 52,343 announced by
the ECK exceed the total Parliamentary vote of 44,769 by 7,574,
a good evidence of tampering.
5.31.6 Evidence attached hereto.
5.32 Lari (No. 105)
5.32.1 Form 16A dated 29/12/2007 was unilaterally altered by
ECK at KICC to have Mwai Kibaki's votes inflated by 8,063 from
41,213 as declared and recorded by ECK at the Constituency
level to 49,276.
5.32.2 A new Form 16A dated 29/12/2007 was issued by ECK at
KICC with conflicting figures and signed by the same official
now inflating Mwai Kibaki's votes to 49,276 and increasing
Raila Odinga's votes by 191 from 266 to 457.
5.32.3 Presiding Officers and Returning Officer at the
Constituency level deliberately refused, neglected and/or
failed to make available Form 16A at the close of polling and
counting. The law requires that the Form be filled in public
under the supervision of the Agents and copies availed to them.
5.32.4 Evidence attached hereto.
5.33 Turkana Central (No. 107)
5.33.1 According to the ECK records at the Tallying Centre,
the Total Parliamentary votes cast was 29,930. However, the
Total Presidential votes, cast was given as 34,028 an increase
of 4,098 votes. The additional Presidential votes were added to
Mwai Kibaki.
5.33.2 Such a large number of voters could not have gone to
the Polling Station to vote for the President and decline or
otherwise refuse to cast their ballots for the Parliamentary
Candidates. (Refer Table 4)
5.34 Saboti (No. 115)
5.34.1 According to the ECK records at the Tallying Centre,
the Total Parliamentary votes cast was 76,417. However, the
Total Presidential votes, cast was given as 78,167 an increase
of 1,750 votes. The additional Presidential votes were added to
Mwai Kibaki.
5.34.2 Such a large number of voters could not have gone to
the Polling Station to vote for the President and decline or
otherwise refuse to cast their ballots for the Parliamentary
Candidates. (Refer Table 4)
5.35 Laikipia West (No. 133)
5.35.1 According to the ECK records at the Tallying Centre,
the Total Parliamentary votes cast was 72,261. However, the
Total Presidential votes, cast was given as 78,228 an increase
of 5,967 votes. The additional Presidential votes were added to
Mwai Kibaki.
5.35.2 Such a large number of voters could not have gone to
the Polling Station to vote for the President and decline or
otherwise refuse to cast their ballots for the Parliamentary
Candidates. (Refer Table 4)
5.36 Laikipia East (No. 134)
5.36.1 According to the ECK records at the Tallying Centre,
the Total Parliamentary votes cast was 54,334. However, the
Total Presidential votes, cast was given as 57,010 an increase
of 2,676 votes. The additional Presidential votes were added to
Mwai Kibaki.
5.36.2 Such a large number of voters could not have gone to
the Polling Station to vote for the President and decline or
otherwise refuse to cast their ballots for the Parliamentary
Candidates. (Refer Table 4)
5.37 Naivasha (No. 135)
5.37.1 ECK increased Mwai Kibaki's votes by 8,680 from
50,145 to 58,825.
5.37.2 Parliamentary votes 84,142 exceed Presidential votes
79,101 by 5,041.
5.37.3 Presiding Officers and Returning Officer at the
Constituency level deliberately refused, neglected and/or
failed to make available Form 16A at the close of polling and
counting. The law requires that the Form be filled in public
under the supervision of the Agents and copies availed to them.
5.37.4 Vote tampering took place at both the Parliamentary
and Presidential levels.
5.38 Molo (No. 138)
5.38.1 Form 16A dated 28/12/2007 was unilaterally altered by
ECK at KICC to have Mwai Kibaki's votes inflated by 25,086 from
50,175 as declared and recorded by ECK at the Constituency
level to 75,261.
5.38.2 A new Form 16A dated 29/12/2007 was issued by ECK
with conflicting figures and signed by a new official now
inflating Mwai Kibaki's votes to 75,261.
5.38.3 The Returning Officer at the Constituency having made
available Form 16A at the close of polling and counting and had
the Form filled in public under the supervision of the Agents
and copies availed to them, appeared in person at the ECK Press
Center at KICC to challenge the results announced by ECK but
the ECK Chairman refused to listen to him or receive from him
the original Form 16A.
5.38.4 The ECK unilaterally increased Raila Odinga's votes
by 4,073 from 19,195 to 23,268.
5.38.5 The total Presidential votes cast exceeded the
Parliamentary votes cast by 2,562, a good evidence that some
official changed the figures.
5.38.6 Evidence attached hereto.
5.39 Subukia (No. 140)
5.39.1 According to the ECK records at the Tallying Centre,
the Total Parliamentary votes cast was 63,819. However, the
Total Presidential votes, cast was given as 68,770 an increase
of 4,951 votes. The additional Presidential votes were added to
Mwai Kibaki.
5.39.2 Such a large number of voters could not have gone to
the Polling Station to vote for the President and decline or
otherwise refuse to cast their ballots for the Parliamentary
Candidates. (Refer Table 4)
5.40 Kajiado North (No. 144)
5.40.1 ECK increased Mwai Kibaki's votes by 27,682 from
21,356 to 49,038.
5.40.2 Presiding Officers and Returning Officer at the
Constituency level deliberately refused, neglected and/or
failed to make available Form 16A at the close of polling and
counting. The law requires that the Form be filled in public
under the supervision of the Agents and copies availed to them.
5.40.3 ODM candidate and agents were forcefully evicted from
the counting hall by government security personnel on their
refusal to accept the count of ballot papers from excess ballot
boxes that had been introduced.
5.40.4 Presidential votes cast of 79,901 exceed the
Parliamentary votes cast of 66,190 by 13,711. (Refer Table 4)
5.41 Malava (No. 155)
5.41.1 ECK reduced Raila Odinga's votes by 6,087 from 25,938
to 19,891.
5.41.2 ECK reduced Mwai Kibaki's votes by 2,923 from 17,635
to 14,712.
5.41.3 The reductions for both candidates match the
difference between the total Presidential votes cast and the
total Parliamentary votes cast and is evidence of vote
tampering. (Refer Table 4)
5.42 Kimilili (No. 169)
5.42.1 ECK increased Mwai Kibaki's votes by 12,661 from
23,126 to 35,787.
5.42.2 ECK increased Raila Odinga's votes by 510 from 16,804
to 17,314. (Refer Table 4)
5.43 Funyula (No. 177)
5.43.1 According to the ECK records at the Tallying Centre,
the Total Parliamentary votes cast was 26,991. However, the
Total Presidential votes, cast was given as 28,553 an increase
of 1,362 votes. The additional Presidential votes were added to
Mwai Kibaki.
5.43.2 Such a large number of voters could not have gone to
the Polling Station to vote for the President and decline or
otherwise refuse to cast their ballots for the Parliamentary
Candidates. (Refer Table 4)
5.44 Bomachoge (No. 203)
5.44.1 According to the ECK records at the Tallying Centre,
the Total Parliamentary votes cast was 38,484. However, the
Total Presidential votes, cast was given as 45,725 an increase
of 7,241 votes. The additional Presidential votes were added to
Mwai Kibaki.
5.44.2 Such a large number of voters could not have gone to
the Polling Station to vote for the President and decline or
otherwise refuse to cast their ballots for the Parliamentary
Candidates. (Refer Table 4)
5.45 Nyaribari Masaba (No. 205)
5.45.1 According to the ECK records at the Tallying Centre,
the Total Parliamentary votes cast was 31,359. However, the
Total Presidential votes, cast was given as 33,357 an increase
of 1,998 votes. The additional Presidential votes were added to
Mwai Kibaki.
5.45.2 Such a large number of voters could not have gone to
the Polling Station to vote for the President and decline or
otherwise refuse to cast their ballots for the Parliamentary
Candidates. (Refer Table 4)
5.46 Kitutu Masaba (No. 208)
5.46.1 According to the ECK records at the Tallying Centre,
the Total Parliamentary votes cast was 52,824. However, the
Total Presidential votes, cast was given as 54,746 an increase
of 1,922 votes. The additional Presidential votes were added to
Mwai Kibaki.
5.46.2 Such a large number of voters could not have gone to
the Polling Station to vote for the President and decline or
otherwise refuse to cast their ballots for the Parliamentary
Candidates. (Refer Table 4)
5.47 West Mugirango (No. 209)
5.47.1 According to the ECK records at the Tallying Centre,
the Total Parliamentary votes cast was 40,865. However, the
Total Presidential votes, cast was given as 45,261 an increase
of 4,396 votes. The additional Presidential votes were added to
Mwai Kibaki.
5.47.2 Such a large number of voters could not have gone to
the Polling Station to vote for the President and decline or
otherwise refuse to cast their ballots for the Parliamentary
Candidates. (Refer Table 4)
6.0 OBSERVATIONS OF AUDIT AND RECONCILIATION OF 2007 PRESIDENTIAL
ELECTIONS RESULTS
6.1 Based on the ECK documents reviewed by ODM, and the testimony
of ECK officials to ODM including press statements attributed to the
Chairman of ECK, it is now clear that the ECK fraudulently manipulated
the Presidential votes by unilaterally inflating the numbers for Mwai
Kibaki and reducing those of Raila Odinga with a view to closing and
eventually eliminating the earlier lead taken by Raila Odinga. The
magnitude of rigging by ECK is tabulated in Table 3.
6.2 The results from Raila Odinga strongholds were tallied and
released first while the tallying and release of those from Mwai
Kibaki's strongholds were deliberately delayed to facilitate the
manipulation of the tallying process. However, using our own data and
those of ECK we establish that even with the rigging at the
constituency level, that we were unable to account for Hon. Raila
Odinga won the 2007 Presidential elections as detailed in Table 4 and
summarized below:
6.3 ECK Declared and Printed Results
The figures released by the ECK on 30th December while declaring
Mwai Kibaki the winner were as follows:
Raila Odinga: 4,352,993 Mwai Kibaki: 4,584,721
This indicate that Kibaki won by 231,738 votes.
6.4 The figures printed by the ECK on 30th December, 2007 gave the
final tally of the Presidential votes that were of different figures
from those announced in 6.3 above as follows:
Raila Odinga: 4,353,035 Mwai Kibaki: 4,574,337
The printed Presidential Election Results declared Kibaki the
winner with 226,302 votes.
These differences are indicative of the confusion that reigned at
ECK before the announcement of the results and explains why the ECK
chairman is uncertain as to who won the elections.
6.5 ODM Audited and Reconciled Results
These results were obtained in two stages. Firstly, undisputed
results from 161 (excluding Kamkunji) out of 210 constituencies (Table
1) Presidential votes provided by ODM Polling and Counting Agents
agreed with the results announced by ECK. The following are total tally
of votes from undisputed Constituencies:
Raila Odinga: 3,734,972 Mwai Kibaki: 2,269,612
It is evident at this stage Raila was leading by 1,465,360 votes.
6.6 In stage two tallies were examined for the 48 constituencies
in which anomalies had been established by the Audit Committee (Table
2). This exercise established that a total number of 514,128 votes were
unilaterally added to Mwai Kibaki by the ECK at KICC. There is further
evidence that votes were unilaterally added and deducted by the ECK at
KICC that led to a net loss of 2,950 votes by Raila Odinga. The ECK
therefore inflated Kibaki's win by (514,128+2,950) 517,078 votes.
6.7 Consequently, based on the vote tallying from the 161
constituencies not in dispute and following adjustments made to
deducting the votes added unilaterally by the ECK to Mwai Kibaki and
adding the votes reduced from Raila Odinga, the cumulative results of
the Presidential election indicates that Raila won the election by
290,330 as follows:
Raila Odinga: 4,356,279 Mwai Kibaki: 4,065,949
6.8 The analysis has been made purely on the basis of documentary
evidence obtained from the ECK. It is reasonable to believe that with
further evidence becoming available, the tally for Mwai Kibaki will
reduce while that of Raila Odinga will increase.
7.0 CONCLUSIONS AND WAY FORWARD
7.1 The Report of the Audit Committee confirms the views of
Kenyans that the 2007 Presidential Elections were rigged.
7.2 The rigging was planned well and executed at the Polling
Stations, Constituency Tallying Centre and National Tallying Centre at
KICC by the Presiding Officers, Returning Officers and Electoral
Commissioners.
7.3 The Audit Report confirms that Raila Odinga Total Tally was
4,356,279 votes against Mwai Kibaki tally of 4,065,949. Raila Odinga
therefore won the 2007 Presidential Election with a lead of 290,330
votes.
7.4 There is also clear indication that the rigging started by the
appointment of ECK Commissioners without following the IPPG guidelines
and the appointment of Judges just before the elections.
7.5 The contention by Kibaki that ODM should seek redress in court
is part of the planned rigging as it aims to tie ODM in court for years
while he illegally stays in office. This explains why the president's
agents put pressure on Kivuitu to announce false results.
7.6 In addition the documentary evidence, Form 16A have been
tampered with by altering them or replacing what was received from the
Constituency Centres with fresh ones completed at the National Tallying
Centres.
7.7 ODM has given reasons for rejecting the election results.
Others, including local and international monitors and NGOs have
concurred that 2007 Presidential Elections were rigged by ECK.
7.8 Mr. Samuel Kivuitu, the Chairman of ECK has himself admitted
that:
7.8.1 He is not sure that Kibaki won the elections.
7.8.2 Documents had been tampered by ECK officials after the
announcement of the results.
7.8.3 He was aware that ECK officials especially in Central
and Eastern provinces were tampering with the results before
the end of the tallying.
7.8.4 He was not in control of his officials in the critical
period of tallying as some in the key constituencies where
votes are known to been rigged ``disappeared, switched off
their phones.''
7.8.5 He announced the results under duress from PNU and
ODM-K.
7.9 It is important that other ECK official, Commissioners,
Returning Officers and clerks have come forward to admit that rigging
of election results took place. Perhaps the most telling sign of vote
rigging is that the ECK is itself contemplating going to court to
challenge its own results.
7.10 It is therefore without doubt that the announced elections
results were rigged. However, even with the election malpractices we
are confident that Raila Odinga won the Presidential Elections by over
290,330 votes.
7.11 It is in this context that the way forward as recommended by
the Committee should include the following:
7.11.1 Demand justice and the reversal of the election
results.
7.11.2 Justice and long lasting peace can not be achieved
through the courts in which the public have no faith in.
7.11.3 Sustainable peaceful mass action and civil
disobedience be pursued simultaneously with a process of
dialogue mediated by internationally respected statesmen and
women to resuscitate democracy in Kenya.
ODM TABLE SHOWING RECONCILIATION OF 2007 PRESIDENTIAL ELECTION RESULTS
TO CONFIRM THE WINNER AND MAGNITUDE OF THEFT BY ELECTORAL COMMISSION OF
KENYA (ECK)
------------------------------------------------------------------------
Mwai Raila Kibaki Raila
No. Item Kibaki Odinga winner winner
------------------------------------------------------------------------
1. Figures as announced 4,584,721 4,352,993 231,728
by ECK on 30th
December 2007.......
2. Figures Printed by 4,579,337 4,353,035 226,302
ECK on 30th December
2007................
3.0 Undisputed results 2,312,870 3,735,114
from 162
Constituencies
excluding Kamkunji
(Table 1)...........
3.1 Disputed results from 2,267,207 618,115
47 Constituencies
(Table 2)...........
3.2 SUBTOTAL (3.0+3.1)... 4,580,077 4,353,229 226,848
3.3 Less Net Votes added 471,063
to Mwai Kibaki by
ECK.................
3.4 Add Net votes 2,772
subtracted from
Raila Odinga by ECK.
3.5 Audit/Reconciled 4,109,014 4,356,001 246,987
results as at 7th
January 2008 (3.2-
3.3+3.4)............
4.0 ECK inflated Mwai 473,835
Kibaki's Win by
(471,063+2,772).....
------------------------------------------------------------------------