KNHRC: Our Coalition Government: Expectations, Disappointments and Opportunities

Kenya National Commission on Human Rights
1st Floor, CVS Plaza, Lenana Road.
P.O. Box 74359 -00200. Nairobi - Kenya.
Tel: 254-20-2717908/2717928/2717256/2712664
Fax: 254-20-2716160

Our Coalition Government: Expectations, Disappointments and Opportunities

1. We mark the 1st birthday of our Coalition Government, not with song and dance, but with cautious optimism. This time last year, the Kenya National Commission on Human Rights (KNCHR) welcomed the signing of the National Accord by President Mwai Kibaki and Prime Minister Raila Odinga. It signaled an end of two months of open hostilities between some communities, anxiety, fear and violence that had enveloped the country following the disputed outcome of the 2007 elections. For us, such conditions were totally unconducive for human rights protection and respect. To that extent, the Accord was a necessary condition and indeed a great milestone.

2. As Kenyans we delivered a fractured electoral verdict whose product is this Coalition which has received the harshest first year critique of any administration since independence. Part of this disappointment is borne of the 2007 campaign rhetoric by the main political parties which raised the hopes and expectations of Kenyans to unrealistic levels. This, combined with the weak political management by our leadership, the loss of leadership momentum following the Grand Regency, Triton and Maize debacles and the failure by the Government to mobilize effectively to pass the Constitutional Amendment (2008) Bill for the Special Tribunal meant to investigate and prosecute perpetrators of the post-election violence, have left President Kibaki and Prime Minister Odinga politically undressed.

3. But even with these disappointments, Kenyans cannot afford to disengage and play the role of cynics. We have a country to build. The country must reflect on the last year and strategize on the opportunities for enhancing the protection and respect of human rights in Kenya.

On the fight against impunity covering egregious post-election human rights violations

4. An important undertaking of the Coalition Government was to investigate and offer redress for the serious human rights violations which plagued Kenya as a consequence of disputations of the 2007 presidential elections results. The Coalition Government pledged itself to bring to account perpetrators of the violence so as to break with the impunity which perpetrators of past human rights violations had enjoyed.

5. One year later, the status of this pledge is tilted precariously in favour of perpetrators of the violence. Despite multiple statements by the President and the Prime Minister assuring Kenyans and the world that the Government would bring to book perpetrators of the violence, little concerted investigations by the Police or prosecutions by the Attorney General have happened. The Government established the Commission of Inquiry on Post Election Violence (CIPEV) with the mandate of investigating the facts and context relating to the violence and recommending measures for bringing to justice perpetrators of crimes; but recommendations of that Commission have subsequently been trashed by some senior members of Government. Enactment of the principal recommendation of CIPEV - that a Special Domestic Tribunal be established to investigate and prosecute suspects -failed when Parliament gravitated to partisan positions.

6. The KNCHR is definite about the need to undertake those investigations and some prosecutions before the 2012 General Elections. Failure to do this will entrench impunity even deeper in Kenya's national psyche, and will cause the country more future pain. Hence, while the KNCHR still prefers the establishment of a local tribunal, it also calls for speedy resolution of this long-drawn discussion. Kenyans should realize that the International Criminal Court is not really an alternative to the local process. It is an option which is and shall remain open whether a local process is established or not.

On resettlement of internally displaced persons (IDPs)

7. The post-election violence resulted in the displacement from their land of over 600,000 Kenyans. Many of these Kenyans (presently as many as 300,000) have during the year continued to languish in ill-equipped camps; and the possibility of exercising their rights to education, food, shelter, health, and even civil and political liberties, has been undermined.

8. One year later, the Government has made energetic (although sometimes unfruitful) efforts to resettle the IDPS. The Provincial Administration has played a pivotal role towards the goal of resettlement. However, endeavours to resettle this population have been fraught with grave dangers: some IDPs have not been welcomed back by their neighbours; resources to facilitate resettlement have been inadequate or ill-applied; the process is riddled with corruption; and the Government has not given cogent attention to the catalysts of displacement. Many Kenyans who became IDPs due to prior elections-related eruptions (in 1992 and 1997) have still not been resettled.

9. As the National Commission pointed out in its post-election violence report, "On the Brink of the Precipice", The Government should pledge to approach resettlement or other appropriate interventions for IDPs from a human rights perspective. It should facilitate IDPs to choose from a selection of reparation measures, either in the form of restitution (return of what was taken from them); compensation (financial); satisfaction (apology); rehabilitation; or guarantees of non-repetition.

On constitutional; legal and Institutional reforms

10. The President and the Prime Minister pledged that a new Constitution would, after nearly two decades of prevarication, an inconclusive consultative process at Bomas of Kenya, and a failed referendum, finally be concluded within one year of the National Accord. This was in further acknowledgement, among other issues, that "the current crisis revolves around the issues of power and the functioning of state institutions" (Agenda No. 3), and that Kenya's creaking constitutional framework continues to cause ineffectual protection and promotion of the rights of Kenyans, in fields as varied as the exercise of freedoms such as those of association, expression and movement; protection from arbitrary deprivation of life; exercise of economic, social and cultural rights; and to the enforcement of human rights in terms of Chapter V of the Constitution. Pledges were also made to review failed governance institutions such as the Electoral Commission of Kenya (ECK).

11. One year later, review of content for the new Constitution has still not started. The promise that the review would be finalized in one year in any case was never really achievable, since implementation of that pledge rested on far too many variables; for example, it was never realistic that the necessary statutory instruments would be in place within eight weeks of the Coalition.

12. The machinery of reviewing the Constitution is now in place: the necessary enabling legislation - Section 47A of the Constitution on replacing the Constitution) and the Constitution of Kenya Review Act, 2008 - has been passed; the Parliamentary Select Committee on the Review of the Constitution is in place; and the President has appointed members of the Committee of Experts. At the same time, though, the Grand Coalition is mishandling the initiative to replace the ECK with the Interim Independent Electoral Commission (IIEC) in terms of recommendations by the Independent Review (Kriegler) Commission established under the Accord to propose improvements to the electoral process. The establishment of IIEC has been plagued by political infighting within the Parliamentary Select Committee delegated to nominate members to the IIEC.

Furthermore, the constitutional amendments which repealed the ECK from existence did not include adequate transitional measures and Kenyans could encounter an intricate constitutional legal minefield if it suddenly became necessary for the country to hold presidential or parliamentary elections before the new Commission is established.

13. Even as the country seeks a new Constitution, the Government's flagrant abuse of citizens' constitutional rights to assemble and associate is troubling. For the last one year, the Government has not allowed public demonstrations or meetings to happen particularly in Nairobi. If this Government cannot abide by this Constitution so that citizens may protest against exorbitant food prices or against corruption, will it even respect a new Constitution?

On truth, justice and reconciliation

14. Transitional justice has remained on the to-do priority list of Kenyans for far too long. Again, the President and the Prime Minister last year pledged that a process would be instituted with the aim of inquiring into historical injustices, human rights violations and economic crimes, including those committed by the state, groups or individuals during the period 1963-2008.

15. One year later, the Truth, Justice and Reconciliation (TJRC) Act, 2008, has been enacted. This law, though, has not come into operation, apparently because the Government is still fund raising for the venture. At the same time, ordinary Kenyans have not had ample opportunity to engage on the possible nature of benefits of the TJRC process for them. The country may, therefore, spend huge resources on this process even while tangible outcomes/ deliverables remain fleeting and unquantifiable.

On inter-ethnic cohesion

16. Kenya's ethnic polarization was demonstrated starkly by the ethnic killings and destruction which followed the presidential election results. It was in recognition of this fragmentation that the Government committed to establishing a framework for managing interethnic relations in the country.

17. One year later, the Government includes a department of National Cohesion in the Ministry of Justice and Constitutional Affairs. Parliament has enacted the National Cohesion and Integration Act of 2008. Yet, the Act's proposed interventions are far too narrowly defined to cover only ethnicity when the statute could have been framed as an equality and anti-discrimination law to provide succour to all discriminated groups. Further, it is not clear what concrete steps the Government is taking to assist Kenyans towards integration and cohering; and the country is as ethnically polarized as it has ever been.

18. Perhaps, it was never to be expected that Kenya's traditional political fault-lines which are largely defined ethnically would be resolved in a decade let alone one year. But Kenyans must recall that one aim of the Political Parties Act, 2007, was to ensure interethnic harmony. Yet, in the current cacophony of Coalition politics, that statute has been left to gather dust by the political wayside. Another proposal which the National Commission has consistently made (and for which it developed draft legislation) is the enactment of hate speech law to criminalise speech which would engender discrimination of an individual or group on grounds such as ethnicity, sex and disability. But despite similar recommendations by the Waki as well as Kriegler Commissions, the Government has not acted.

On public and corporate accountability

19. The 2030 Vision, which the Coalition Government subscribes to and is implementing, is clear on the value of accountability to the people of Kenya. Accountability is a human rights principle on the basis of which individuals may call upon their leaders to take responsibility (answer) for their policy or administrative deeds or misdeeds. Kenyans had for many years been victims of stolen or wasted resources, making it difficult for them to have effective exercise of their economic and social rights (education, food, shelter, etc).

20. One year later, the maize and oil scandals typify the distinct failure of the Government to fight corruption. Members of the Government have declined to take responsibility for commissions or omissions within their ministries; the Police, the Kenya Anti Corruption Commission and the Attorney General have not undertaken successful investigations and prosecutions of these scandals; and the two principals of the Accord have failed to take political actions to deal with misdeeds within Government.

21. I n the meantime, corruption in the corporate sector has mushroomed more than ever before. Kenya's depressed stock market is as much a result of the credit crunch as of complicit or negligent failures of market regulation. As a consequence, big players in the market (including stock-brokers) have connived to remain afloat at the expense of small investors whose life savings have been wiped out. The situation is hardly different in the cooperative sector where similar heists have been visited upon unsuspecting Kenyans while the Government has stood by watching.

22. The National Commission has consistently recommended that Parliament should pass legislation barring from appointive or elective office leaders who perpetrate economic misdeeds on the country and indeed those who violate human rights generally.


23. Kenya has no option but to build a strong culture of political accommodation, political compromise and checks and balances which are critical in a divisive environment such as this one. The bewildering factionalism witnessed among our parliamentarians, the decline in public trust, and the suffocation of the moderate voice, should not overwhelm us. Neither should we be overwhelmed by the Government's inability or reluctance to stem the extra-judicial killings which have ravaged the countryside. As citizens, we owe it to ourselves and our children's children to seize whatever space that is generated by constitutional and institutional reforms to make positive contributions that will enhance the protection and respect of human rights. We cannot afford to fail. If we do, as Justice Kriegler warned, 2012 will be even dire than 2007 was.

Kenya National Commission on Human Rights
27th FEBRUARY 2009

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