The people of Kenya are just days away from casting their ballots on 4 March in the country’s first election since the 2007 presidential race which resulted in unprecedented ethnic violence, leaving over 1000 people dead and 600,000 more displaced. A country with over 70 distinct ethnic groups – the five largest being Kikuyu, Luo, Luhya, Kalenjin, and Kamba – Kenya’s past elections have largely witnessed voting along ethnic lines. This year, eight candidates are running, among them Uhuru Kenyatta and his running-mate, William Ruto, both of whom have been indicted by the International Criminal Court (ICC) for their alleged role in the commission of crimes against humanity following the 2007 elections. While the Kenyan government has undertaken a range of measures to prevent a repeat of 2007’s deadly crisis, including the adoption of a new constitution to redistribute political power, the training of police and civil society to identify and monitor hate speech, and educating the Kenyan population on the newly established electoral process , civil society organizations have raised alarm to the sizeable risk of violence that remains. As several NGOs, including Human Rights Watch (HRW), have reported, Kenya has already experienced election-related inter-communal attacks that left over 400 dead and upwards of 118,000 displaced during 2012 and early 2013. This election, which is expected to be extremely close and require a second round, known as a “run off” (scheduled for 11 April), will prove a great test for the Kenyan government as it works to uphold its responsibility to protect its population from the recurrence of mass atrocities, as well as ensure a free, fair and transparent presidential race.
Kenya’s 2007 disputed election: a political and humanitarian crisis
The presidential election of December 2007 swept Kenya into a wave of ethnically charged violence following the contested announcement of incumbent Mwai Kibaki as president over the predicted favorite to win, Raila Odinga. The declaration of Kibaki as president, followed by the swiftness of his inauguration a handful of hours later, triggered widespread and systematic violence characterized by ethnically targeted killings, which evidence later showed to be largely pre-meditated by politicians and community leaders. Crimes committed included crimes against humanity – one of the four crimes and violations that all governments, including Kenya, committed to preventing and halting when endorsing the Responsibility to Protect (RtoP, R2P). The international community acted rapidly to keep the volatile situation from deteriorating by deploying former United Nations Secretary General, Kofi Annan, to serve as international mediator and head of the African Union Panel of Eminent Personalities. The outcome of the Panel’s efforts was a power-sharing government that committed to address the long term issues and root causes of the conflict.
Pre-election preparation and reform: enough to prevent a repeat of 2007?
A range of preventive actions have been taken by the government, UN agencies, and civil society to prevent a repeat of the tragic violence that plagued Kenya five years ago. Civil society and media representatives convened a forum organized by the Nairobi Peace Initiative – Africa and the Global Partnership for the Prevention of Armed Conflict, in Nairobi in early February 2013 to share their work to ensure peaceful elections, and discuss the concerns surrounding the poll with the goal of generating a collective voice and strategy for civil society and media. At the national level, Kenyan authorities have trained hundreds of police and peace organization representatives in monitoring media and speech to bring attention to hateful language that can incite violence. With the support of translators the monitors can identify hate speech in a range of dialects and, through partnerships with phone service providers, track phone messages too.
Monitoring will be crucial to determine the election results so organizations like the Carter Center, the Citizens’ Coalition for Electoral Democracy in Uganda, and the Elections Observation Group, as well as the East African Community and the African Union, have dispatched teams to oversee the upcoming poll.
UN officials and agencies have been vocal and active as well, with UN Secretary General Ban Ki-moon calling on all leaders to “abide by legal mechanisms and to send a clear message to supporters that violence of any kind would be unacceptable.” The Special Adviser on the Prevention of Genocide, Mr. Adama Dieng, was in Nairobi in early February where he recalled the responsibility of the Kenyan authorities to protect and noted the need to ensure a swift response by the international community to prevent a repeat of 2007. His office was there to work with the International Conference on the Great Lakes Region to support Kenya’s National Committee on the Prevention of Genocide, which included holding a five-day workshop on RtoP and the prevention of inter-communal violence. To ensure that all preparations are underway in the event of displacement, the Office for the Coordination of Humanitarian Affairs, created a humanitarian contingency, with the Special Rapporteur on the human rights of internally displaced persons calling on the government and international community to do everything possible to prevent massive displacement.
The government itself has adopted numerous reforms to create the environment needed for peaceful and fair elections and to address the country’s deep seeded grievances. While these actions should be commended, remaining challenges and incomplete reforms have left many NGOs questioning if the government’s response will be enough.
Following a 2010 referendum, Kenya adopted a new constitution to prevent ethnically charged politics and check the power of the executive. This has been done by giving greater power and resources to local political leaders through the creation of what International Crisis Group (ICG) calls a “new level of governance”– the establishment of 47 districts each with their own governor, senator and assembly. The government has also adopted measures to ensure full geographic (and therefore ethnic) support for the president-elect by creating new voting rules that require the winning candidate to receive more than half of all votes and at least 25% in 24 of the newly established counties. While these new rules will serve to spread power and responsibility to a range of politicians, the majority of Kenyans have not received the information needed to understand the new Constitution and voting rules, as the Kenyan Human Rights Commission (KHRC) found in its report entitled Countdown to the March 2013 General Elections. Through conducting polls and interviews throughout the country, KHRC’s research indicated that increased and continuous civic education is crucial “to secure an informed public for future elections.”
The devolution of presidential power is also meant to keep the nation from erupting into large scale violence; however the new counties and positions could very well create the likelihood for localized conflict. This is in part due to the increased influence that local politicians will hold, which may lead “many local leaders seek to preserve the system of ethnic patronage that devolution was intended to remove. As a result, the mobilization of ethnic grievances to garner political support remains rampant,” as the Global Centre for R2P (GCR2P) points out. These findings were echoed in ICG’s report entitled Kenya’s 2013 Elections, where the organization elaborates on how the constitutional changes can lead to risk of violence, stating that “although the new level of governance should give communities, including minorities, a greater say (…), it could also transfer political competition, violence and corruption down and create new minorities and new patterns of marginalization.”
Strengthening the security sector
Efforts were also undertaken to address the failures of the police to protect in the aftermath of the last elections. During the violent crisis, the government responded with excessive force, with Amnesty International (AI) recalling the role of police in “killing and injuring protestors and raping and sexually assaulting women and girls, particularly in opposition areas.” The government subsequently established an ambitious framework which, as the International Center for Policy and Conflict in Africa noted, was meant to “establish and elaborate an effective system of democratic regulation and oversight of security services;” however, as AI points out, the framework has not been implemented to the fullest, and the capacity of security personnel remains an inherent problem, placing civilians at risk of violence yet again.
Little has been done practically to bring to justice those responsible for violent crimes committed following the previous election, and AI has stated that steps have actually been taken to cover up and politically manipulate cases against security personnel. As a result, while conducting on the ground research, Human Rights Watch (HRW) has heard from countless Kenyans that “they view the police as ineffective and corrupt.” As the elections approach, police also remain understaffed and ill-equipped, with the Council on Foreign Relations reporting that the Kenyan force has about 70,000 police, “or roughly 160 per 100,000 residents, which is less than three-quarters of the 220 per 100,000 recommended by the United Nations.” These forces will be stretched to their limits when tasked with patrolling the polling stations, which could exceed 40,000 nationwide.
Upholding accountability for crimes committed during the 2007 election remains a critical challenge for Kenya, and one that has already had an impact on the elections. HRW also pointed out that little has been done nationwide to arrest and prosecute civilians responsible for attacks on people and property, leaving those responsible for 2007 election-related violence free to repeat their actions.
At the government level, impunity has been stated to be at the heart of the 2007 crisis, with the final report of the Commission of Inquiry on Post-Election Violence calling for the creation of a domestic special tribunal. After two failed government attempts to establish the tribunal, Kofi Annan sent to the ICC the names of a dozen suspects deemed most responsible, leading to the opening of an investigation by the Court’s then-Chief Prosecutor, Luis Moreno-Ocampo. From this investigation, six of the suspects, referred to in the media as the “Ocampo six”, were summoned to appear before the Court, ultimately resulting in the confirmation of charges for four of the “Ocampo Six”, including candidate Uhuru Kenyatta and his running mate, William Ruto. The ICC indictments have influenced the presidential campaigns with the International Federation for Human Rights (FIDH) reporting that some are describing the polls as “a referendum against or for the ICC”. The indictments have also resulted in an unexpected political alliance with the formation of the Kenyatta-Ruto ticket, as the two men are Kikuyu and Kalenjin respectively, two ethnic groups which violently targeted the other in 2007. Civil society organizations, including the International Commission of Jurists-Kenya (ICJ-Kenya), the Kenyan Human Rights Commission (KHRC), and the International Center for Policy and Conflict, fought to keep Kenyatta and Ruto from running, arguing that their candidacy violated the integrity clause of the new Constitution. The Kenyan High Court, however, disagreed, ruling that it would not intervene, ultimately giving the two men the green light to participate. This ruling has led many to wonder about the practicality of a Kenyatta/Ruto presidency, with ICJ-Kenya noting in their report entitled If Uhuru Kenyatta or William Ruto is Elected President or Deputy President, that such a presidency would cripple the government because the country would be left with leaders who are unable to carry out their vast domestic duties due to repeated trips to the Hague. As of 27 February, the trial dates remained up in the air as the Chief Prosecutor for the ICC, Fatou Bensouda, indicated that she would accept a postponement of the trials to August. Kenyatta and Ruto had been slated to begin their trials on 10 and 11 April respectively, with 11 April being election run-off date.
What do these risks mean for the elections and the people of Kenya?
As FIDH notes, the pre-election environment has been “marked by political parties and alliances’ mobilization of the population along ethnic lines, the re-activation or creation of illegal gangs and militia groups (…), cases of civilians arming themselves as a preventive measures, the use of hate speech or inflammatory coded language by politicians, vernacular radio stations as well as through social media: in other words, all the ingredients that led to the 2007/2008 violence.” But 2013 does not need to be a repeat of the cycle of violence that has plagued the country. As put by ICG, “the people deserve better. (…) they deserve the change to vote without fear and elect leaders committed to reform and ready to serve society as a whole rather than the narrow interests of elites.”
While the Kenyan government should be commended for the steps taken, more can certainly be done at the domestic and international levels to ensure free and fair elections and uphold the state’s responsibility to protect from mass atrocity crimes. This can include publicly committing to respect election rules and, as KHRC’s research found, providing civic education about the electoral process. As HRW recommends, the government can take direct measures through the deployment of police “in adequate numbers to areas of potential conflict and ensure that they perform their duties impartially and with full respect of the law”. This point was echoed by the GCR2P, who also noted that state authorities should “warn all Kenyans (…) that they will be held responsible for inciting, aiding or perpetrating mass atrocity crimes.” For actors at the regional and international levels, ICG has called on leaders to send messages urging against “political interference with the elections and especially against the use of or incitement to violence”. These are just some of the many steps the government of Kenya and the international community can take to prevent the spread of post-election violence. These preventive efforts drive at the very heart of RtoP, which not only calls for states to halt mass atrocities, but to protect from genocide, crimes against humanity, and ethnic cleansing happening again. The people of Kenya deserve the opportunity to elect a new president without the fear of mass atrocities; the time for preventive action is now.