Kenyan Government Split Over Human Rights

Shortly after, the headless cadaver of a woman was dug out of the ground, triggering a bout of uncontrollable sobbing from the 52-year old Macharia. "This was my lovely wife. They decapitated her when she pleaded that they spare her 18-year old granddaughter," he said amid sobs. "Why in God’s name did they have to kill her in this fashion?"

As the seven bodies were lowered simultaneously in separate graves it was all too clear that the unmitigated violence visited on the Macharia family was excessive, unnecessary and omniscient of unexplainable wickedness that engulfed Kenya after the announcement of the controversial Presidential elections results on December 30, 2007.

This tragic scene was taking place in an agriculturally rich enclave of Uasin Gishu village, located in Kenya’s Rift Valley province, a flashpoint of some of the conflict’s deadliest engagements.

In Kisumu, 500 km North West of Nairobi, David Kamau Kanini, a sexagenarian businessperson is mourning from a different kind of calamity. His odyssey with the Lakeside city of Kisumu began in 1960, after landing a job with Smith Mackenzie and Company Ltd, an agricultural equipment and hardware dealer. After settling in the area, he founded a successful beverage distribution business, Lucy General Company, estimated to be currently worth $1.2 million. He also put up a $0.12 million family home within the town.

But immediately after December 30, Kanini’s faith in the innate goodness of the human race was shaken irreversibly. "Mobs coalescing around ethnic identity targeted my business and torched it down. My family and I were later escorted to a local police station where we remained for the following six days. Later friends and family on learning of our predicament, sent plane tickets to the station and we were eventually airlifted to Nairobi. But sadly, I don’t know how two financial institutions I was dealing with will treat my case, in light of the fact that I had secured $0.54 million which I was servicing. And also the thugs stole $0.063 million which I had accumulated as sales receipts during the Christmas period."

Episodes encapsulating gory afflictions such as Macharias’ and Kaninis’ are stirring a moral debate that has attracted international attention even as it threatens the stability of the one-month-old Grand Coalition Government here.

Caught in the eye of the storm is the emotive issue of whether a blanket amnesty towards perpetrators of crimes against humanity is untoward or pragmatic. "The remote perpetrators, leaders and planners of the type of violations that took place in Kenya must never be exempted under any circumstances. To do so would be a travesty of justice," says Maina Kiai, Executive Director, Kenya National Human Rights Commission (KNHRC), a government funded organization.

According to Police Spokesman, Eric Kiraithe, 130 suspects arrested countrywide in connection with the violence are awaiting trial. However, investigations and prosecutions into 9,000 crimes committed in the post-poll period are going on. Kiraithe says, "Special teams have been formed to gather and assemble evidence against all persons who were suspected to have taken part in the commission of crimes including murder, robbery with violence, arson, malicious damage of property and breach of peace."

While Acting Director Human Rights Watch, Georgette Gagnon says the international rights organization has evidence of the perpetrators of the ethnic violence. "The attacks were planned soon after the elections. In some cases local elders and politicians in particularly from the Rift Valley Province incited and organized the violence, indeed ODM leaders were right in challenging the rigged presidential poll, but they shouldn’t have used it as an excuse for targeting ethnic groups," says Gagnon.

In the meantime, the International Criminal Court (ICC) is seeking information from institutions in the country in order to decide whether or not to bring charges against those involved in the violence. At the same time, Amnesty International has called for investigations into the human rights abuses and killings witnessed after the elections.

The organization’s Africa program director, Erwin van der Borght said, "Amnesty international wants the African Commission (AC) and the Kenya Government to prioritize an investigation into the human rights violations and abuses perpetrated during the post-election period. Impunity for human rights violations will only store up problems for Kenya’s future. Since the polls, van der Borght has visited Kenya on a fact-finding mission.

Coincidently, the impunity witnessed follows a well choreographed pattern that has its beginnings in 1991 when the then regime, under the autocratic heel of Daniel arap Moi, capitulated under pressure emanating from local and international forces to accede, after a 10-year hiatus, to political pluralism. Ever since then, every year leading to national polls routinely witnesses the explosion of ethnic fault lines, leading to clashes in parts of the country.

Such conflicts took place in 1991, 1996, 2001, and 2006, overflowing to 2007. "The phenomenal of violence before an election traces its roots to former President Daniel arap Moi, who crafted a political handicraft that balkanized the country into tribal fiefdoms. Unfortunately, when a new administration ascended to power in 2002 it encouraged impunity when it dithered on acting on myriad official reports that had named and shamed individuals linked to past Human Rights violations," explains Professor Paul Wanyande, a lecturer of political science at the University of Nairobi.

While the world had reason to believe that President Moi was behind the ethnic clashes, the President never hesitated to commission public inquiries into the sanguinary happenings. However, his close political allies, some holding Cabinet positions today, were mentioned adversely but to date have never been called to account for their questionable behavior.

During the recent violence about 1,500 people were killed and 350,000 others displaced from their homes. "The violence was not spontaneous. In certain cases there was evidence or prior organization," says Florence Simbiri-Jaiko, Vice Chairperson of KNCHR. Superficially, a perception that a Presidential election had been stolen by Mwai Kibaki to deny Raila Odinga the position set off the violence.

According the Electoral Commission of Kenya (ECK) Kibaki walloped Raila when he ostensibly received 4.5 million votes compared to the latter’s 4.3 million. To stem the spiral of violence that ominously threatened to splinter the country into halves, the international community offered Koffi Annan, formerly Secretary General of the United Nations, to arbitrate an acceptable political settlement.

And in mid April of this year, Kibaki together with Odinga settled for a power sharing arrangement that saw the former shed some of his Executive power to the latter, who now serves as Prime Minister, to form a Grand Coalition Government.   

But the goings on between the former protagonists has been anything but calm as the two camps have disagreed on literally everything as a battle for political succession targeting 2012, when the next polls are scheduled.

For example, according to the thinking of Odinga’s camp, the Orange Democratic Movement, providing amnesty to the 12,000 culprits is an issue that should be expedited. But Kibaki’s people argue otherwise. "Many of those been held were acting as our vigilantes whose only crime was to ensure that a free and fair election took place. But the police force has been biased in the whole issue. Only ODM people were picked up. I have raised the issue with President Kibaki several times and we expect the matter to be resolved expeditiously," Odinga told a public rally on May 18.

Henry Kosgey, the Minister for Industrialization says that rather than using the country’s justice system, genuine reconciliation will only be achieved if people are willing to forgive each other. "There should be no double application of the law. If the government is willing to hold talks with outlawed vigilante groups that are widely known to sympathize with Kibaki’s faction, why can’t it do the same with our arrested supporters? Youths that butchered people in the name of defending Kibaki have never been arrested but ours (ODM) are rotting in the cells. Further, Electoral of Kenya Commissioners (ECK), whose decision prompted the election crises, should have been arrested and charged with murder," says Kosgey, also Chairman of ODM.

His counterpart in the Ministry of Agriculture, William Ruto, says amnesty should be extended to everyone arrested over the election crisis: "Some of us in Cabinet are the ones who requested the people now in custody over the election crises to protest because of the election injustices. Therefore they shouldn’t be criminalized. It seems that our friends from the Party of National Unity (PNU) perceive us from the ODM as having joined the government through the backdoor." A mini-commission led by an Appeal Judge has been appointed to investigate the post election violence but some voice opposition to its role saying only a Court process would suffice.

A Truth Justice and Reconciliation Commission (TJRC) is on the cards after a false start in 2003. "Given the previous use of violence and of displacement and dispossession of people as a political strategy, the Truth, Justice, and Reconciliation Commission (TJRC) should send a strong signal that this is inconsistent with the requirements of peace and justice.

In a research paper tilted, "Truth and Reconciliation Commissions and Transitional Justice in Africa: Lessons and Implications for Kenya," written by scholars, George Wachira and Prisca Kamungi, the duo argue for the prosecution of individuals guilty of crimes against humanity. The paper states:

"Given the poor follow-up on recommendations, particularly those pertaining to reparations to victims in the context of great material need as in the case of South Africa, Sierra Leone and Ghana, TJRCs are viewed as largely facilitating the very impunity they set out to reverse as perpetrators get away without accountability, while the victims needs are not met. Given the previous use of violence and displacement and dispossession of people as a political strategy, the Kenyan TJRC should send a strong signal that this inconsistent with the requirements of peace and justice…There can be no justification for the taking of a life of another innocent Kenyan and those responsible should face prosecution and public censure." 

However  Ndungu Wainaina, Director, International Centre for Policy and Conflict, a local NGO says a TJRC would be a wrong option, for it would not provide a solid platform for people to candidly discuss the post-election violence. "Politically, Kenyans are divided more than any other time before. I don’t think they will open their hearts without first achieving political legitimacy."

In an interesting twist of events, world renowned novelist and playwright, Professor Ngugi wa Thiong’o has urged the UN to probe the killings. "I call upon the United Nations to act and investigate the massacres that took place in Kenya as crimes against humanity and let the chips fall where they may…For the sake of justice, healing  and peace  now and in the future I urge all progressive forces not too be so engrossed with the political wrongs of election tampering  that they forget the crimes of hate that led to untimely deaths and displacement of thousands…Ordinary people do not wake up one morning and suddenly decide to kill their neighbors as was witnessed at the height of the violence in several parts of the country," he said in a BBC interview.  

Conspicuously, President Kibaki has so far remained quiet about what he thinks of the amnesty calls, though his political allies drawn from his PNU party are unanimously agreed that nothing precedes the due process.

"Whether the investigations come from the international scene or from our own jurisdiction does not really matter. What is important is that they are done and those found guilty charged accordingly," says Martha Karua, Justice, National Cohesion and Constitutional Affairs Minister.

Deputy Prime Minister, Uhuru Kenyatta says, "You can run for 20 years but the law will still catch up with you. Take for instance the case of Felecian Kabuga, the fugitive Rwandese who is still being pursued for  having had a role in the genocide that took place in 1994. Those who were involved in crimes against humanity are undeserving of amnesty."

Njonjo Mui, a human rights lawyer says," Kenya is a country that is built on a shaky foundation of half-truths with regard to its past. If we are to survive and reinvent ourselves as a nation, we must discover our truth and urgently deploy it to the task of truly setting us free."