[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

=======================================================================

                                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


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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

                                 ------                                

                    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

                              ----------                              
                                                                   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

                              ----------                              


                       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.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \8\ It was of 50,192 votes in 2002.
    \9\ KPTJ, a ``Countdown to Deception,'' op. cit.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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.
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            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).....
------------------------------------------------------------------------

                                  
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