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«Published by the Center for African Studies, University of Florida ISSN: 2152-2448 African Studies Quarterly E Staff Elizabeth Beaver Lin Cassidy ...»

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African Studies Quarterly

Volume 5, Issue 1

Winter 2001

Published by the Center for African Studies, University of Florida

ISSN: 2152-2448

African Studies Quarterly

E Staff

Elizabeth Beaver

Lin Cassidy

Michael Chege

Corinna Greene

Maria Grosz-Ngate

Parakh Hoon

Alice Jones-Nelson

Brian King

Rebecca Klein

Carol Lauriault

Todd Leedy

Andy Lepp

Steve Marr

Ade Ofunniyin

Roos Willems

Andrew Woods

African Studies Quarterly | Volume 5, Issue 1 | Winter 2001

http://www.africa.ufl.edu/asq © University of Florida Board of Trustees, a public corporation of the State of Florida; permission is hereby granted for individuals to download articles for their own personal use. Published by the Center for African Studies, University of Florida.

African Studies Quarterly | Volume 5, Issue 1 | Winter 2001 http://www.africa.ufl.edu/asq Table of Contents Human Rights Abuse in Kenya under Daniel arap Moi, 1978-2001 Korwa G. Adar and Isaac M. Munyae (1-17) The State and Development in Southern Africa Osei Hwedi (19-31) The Public Sector, Privatization, and Development in Sub-Saharan Africa James S. Guseh (33-49) Book Reviews African Politics and Society: A Mosaic in Transformation Peter J. Schraeder. Boston: Bedford/St.Martin's Press, 2000.

Stefano Bellucci (51-52) The New Africa: Dispatches from a Changing Continent Robert M. Press. Gainesville: University Press of Florida, 1999.

Ken Menkhauss (52-54) Africa's Political Stability: Ideas, Values and Questions Muyiwa Falaiye (ed.). Lagos and Ontario: Panaf Publishing Inc., 1999.

Raphael Chijioke Njoku (54-56) Wars of Imperial Conquest in Africa 1830-1914.

Bruce Vandervort. Bloomington: Indiana University Press, 1998.

David S. Fick (56-57) Liberating the Family ? Gender and British Slave Emancipation in the Rural Western Cape, South Africa, 1823-1853.

Pamela Scully. Portsmouth, Heinemann, 1997.

Cheryl Hendricks (57-59) Wringing Success from Failure in Late-Developing Countries: Lessons from the Field.

Joseph Stepanek F. Westport: Praeger Publishers, 1999.

Osaore Aideyan (59-61) Trevor Huddleston: A Life.

Robin Denniston. New York: St. Martin's Press, 1999.

David Leaver (61-62) English in Ghana.

M. E. Kropp Dakubu, ed. Accra: Ghana English Study Association, 1997.

T. Temi Ajani (62-65) African Studies Quarterly | Volume 5, Issue 1 | Winter 2001 http://www.africa.ufl.edu/asq African Studies Quarterly | Volume 5, Issue 1 | Winter 2001 Human Rights Abuse in Kenya Under Dani

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Introduction Jomo Kenyatta, the founding president of Kenya, passed away in August 1978 after fourteen years as head of state. His successor, Daniel Arap Moi, served as Kenyattas vicepresident from 1966 - 1978. During Kenyatta's presidency, the political realm was dominated by a small Kikuyu elite, the so-called Kiambu Mafia, from Kenyata's home district. This group undermined Kenyatta's nationalist and populist background, alienating other ethnic groups, as well as many non-conforming Kikuyus. Although Moi was loyal to Kenyatta, he was never accepted into Kenyatta's inner circle. He also came from a small community--the Kalenjin. He was regarded by Kenyans to be the right candidate to steer the country towards a more accommodating human rights era, without ethnic dominance.

This general perception of Moi by Kenyans was reinforced by the decisions and promises he made immediately he took over the presidency. In December 1978 Moi released all twentysix political detainees across the ethnic spectrum, most of whom had been languishing in jails for years.1 He also reassured Kenyans that his administration would not condone drunkenness, "tribalism", corruption, and smuggling, problems already deeply entrenched in Kenya.2 His administration also took quick actions against top civil servants accused of corruption, culminating in the resignations of officials including the Police Commissioner, Bernard Hinga.

These actions were interpreted by Kenyans as an indication of the dawn of a new era, a conducive environment for adherence to democracy and human rights.

In due course, however, Moi became more interested in neutralizing those perceived to be against his leadership. The issues of corruption, "tribalism" and human rights per se became distant concerns. Instead, Moi began to centralize and personalize power when he took over the presidency. He pledged to follow Kenyatta's nyayo (Swahili for "footsteps"). He wanted ordinary Kenyans to perceive him as a true nationalist in his own right, and as a close confidant of Kenyatta. He traveled constantly throughout the country addressing many prearranged or ad hoc public gatherings. He popularized nyayo within the context of what he called "love, peace and unity".3 His grand design turned out to be a strategy geared toward the achievement of specific objectives, namely, the control of the state, the consolidation of power, the Korwa G. Adar is a Senior Lecturer in International Relations, International Studies Unit, Political Studies Department, Rhodes University. Isaac M Munyae recently completed his MA in International Studies, International Studies Unit, Political Studies Department, Rhodes University. The authors are indebted to the African Studies Quarterly review committee for their helpful comments.





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legitimization of his leadership, and the broadening of his political base and popular support. It turned out this strategy called for little respect of human rights.

Initially, Moi's ascendancy to the presidency faced a major handicap because of the dissension against his leadership from within the ranks of the ruling party, Kenya African National Union (KANU). This came from the influential "Kiamba Mafia" that had constituted themselves into what became known as the Change the Constitution Movement.4 The main objective of the movement was to bar Moi from taking over the presidency. The group called for the amendment of the Kenyan constitutional clause which conferred rights on the VicePresident to take over the presidency for ninety days pending the general elections should the office of the president fall vacant.5 The movement failed, mainly due to the opposition it faced from Moi's ally, attorney general Charles Njonjo. Moi succeeded in assuming the presidency and thereafter began to systematically institute an authoritarian and oppressive one-man state rule.

Kenyatta's style of restraint and steering the country as a de facto one-party state did not conform to Moi's leadership and behavioral characteristics. Moi's style -- the centralization and personalization of power -- gradually laid the foundation for a dictatorship and innumerable human rights violations by his administration. When Jaramogi Oginga Odinga and George Anyona sought to register a socialist opposition party in 1982, Moi struck back by making the country a de jure one party state. He criminalized competitive politics and criticism of his leadership.6 Throughout the 1980s to 1990s the security forces, particularly the police, were used to suppress any criticism of his regime.

To ensure his grip on power, Moi systematically usurped the functions of the other institutions of governance to the extent that the principle of the separation of powers was rendered ineffectual. A few days after releasing all the political detainees, he rushed a bill through Kenya's parliament which granted the president emergency powers for the first time in Kenya's post-independence history. Moi associated insecurity and instability with open criticisms and challenge to his policies and style of leadership. Patronage and loyalty therefore has remained characteristic of Moi's leadership style which has enabled him to centralize and personalize his rule.7 For more than two decades as Kenya's head of state, the second longest serving president in Sub-Saharan Africa -- Moi has remained what has been described as a "tribal paramount chief writ large".8 In return for patronage, he enjoys praise from civil servants and KANU officials to an embarrassing degree. For example, in one of the numerous public functions he attended, a senior minister stated while pointing at him: "There, is enshrined in human form the popular will... Even lobsters and fishes of the sea, out to the 200- mile limit and even beyond, pay obeisance to our great president the Honorable Daniel Arap Moi."9 This article deals with the manner in which the autocratic patronage system established by Moi has undermined the rule of law and respect for human rights in Kenya. It is an authoritarian system in which the president delegates no responsibilities and becomes personally involved in almost everything in the country, particularly issues concerning the rights of individual Kenya citizens to speak their minds, assemble without hindrance, write and publish without being molested.

.

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THE INSTITUTIONALIZATION, CENTRALIZATION AND PERSONALIZATION OF THE

PRESIDENCY The trend began with presidential directives and constitutional amendments. Apart from the Constitution of Kenya, Amendment Act, Number 7 of 1982, which introduced Section 2(A) transforming the country into a de jure one-party state, Kenya's parliament, on Moi's order, reinstated the detention laws which had been suspended in 1978. Colonial era laws, like the Chief's Authority Act, the Public Order Act, the Preservation of Public Security Act, the Public Order Act, and the Penal Codes, gave the president the right to suspend individual rights guaranteed by the constitution.10 The parliamentary privilege, which gave representatives the right to obtain information from the Office of the President, was also revoked. This meant that members of parliament, and by extension their constituents, surrendered their constitutional rights to the presidency. Parliamentary supremacy became subordinated to the presidency and the ruling KANU party.11 For the first time in Kenya's post independence history, the provincial administrators (Provincial Commissioners[PCs], the District Commissioners[DCs], and District Officers [DOs]) who are civil servants, were directed by the Office of the President to get involved in the internal affairs of KANU. They were to review and clear party meetings throughout the country and to isolate dissenters. KANU officials and members of parliament henceforth were subjected to these administrative procedures, undermining the meaning and legitimacy of representation in Kenya's legislature. These reorganizations and restructurings had a number of implications.

First, the structures of representation both within KANU and parliament were obscured. The provincial administration now had the power to prevent an elected member of parliament from addressing his or her own constituents. Second, patronage and loyalty to the President became mandatory for one's political survival. In the 1988 general elections most members of parliament were not elected but selected by the party.12 One of the first victims to fail the loyalty test was the man behind Moi's smooth ascendancy to the Presidency, Charles Njonjo, then attorney general and minister for constitutional affairs, who was accused of plotting to overthrow Moi's government.13 Third, those perceived to be against the President and KANU policies were denied the right to contest electoral seats.

By 1981 all the ethnic-centered welfare associations had been banned. These included the Luo Union, the Gikuyu, Embu, and Meru Association (GEMA), and the Abaluhya Union. The president also outlawed the Civil Servants Union (CSU) and the Nairobi University Academic Staff Union (UASU). In 1986 Moi gave a directive for the Maendeleo Ya Wanawake Organization (MYWO), a national non-governmental organization for women, to be affiliated to KANU, and in 1987 officially changed its name to KANU-MYWO.14 The Central Organization of Trade Unions (COTU), the umbrella body for most of the trade unions in Kenya, had been an ally of KANU for more than two decades, with most of its top leadership frequently selected by KANU, particularly in the 1980s to 1990s. These changes strengthened party-state relations and solidified presidential control of the state. Between 1964 to 1990, twenty-four constitutional amendments were enacted by parliament, all intended to strengthen the presidency at the expense of civil rights.

African Studies Quarterly | Volume 5, Issue 1 | Winter 2001 http://www.africa.ufl.edu/asq/v5/v5i1a1.pdf 4 | Adar amd Munyae On the 1st of August 1982 there was a military coup attempt by some junior Kenya Air Force officers. It was put down at an estimated 600 to 1,800 lives. This accelerated the process of the control of the state and solidified Moi's authoritarian rule.15 In 1986 parliament enacted Act No. 14 followed in 1988 by Act No.4, imposing limitations on the independence of the judiciary, with far reaching human rights violations. Sections 61(1) and (2) of the Constitution empower the president to appoint the chief justice and puisne judges respectively upon the recommendations of the Judicial Services Commission (JSC) which is also appointed by the president. The 1986 and 1988 constitutional amendments provided for the removal of the security and tenure of the Attorney General, the Controller and Auditor General, the judges of the High Court and the Court of Appeal. Parliament, which at this time was under the control of the executive arm of the government, did not resist these amendments. The control of parliament and the judiciary meant that the office of the president was in a position to manipulate the functions of the two branches of the government. Both Parliament and the Judiciary ceased to have the constitutional rights to control the excesses of the executive. There were no checks and balances on Moi's personal authority.

Two major events happened before Act 14 of 1986 was passed in Parliament to symbolize the unchecked power of the executive. In his ruling in a case in which an American marine had murdered a Kenyan woman in Mombassa, a judge found the accused guilty but fined the marine only Kenyan shillings 500 (about $50) and bonded him for one year probation.16 The issue was raised in parliament thereafter because of the light sentence imposed by the judge.



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