«Published by the Center for African Studies, University of Florida ISSN: 2152-2448 African Studies Quarterly E Staff Elizabeth Beaver Lin Cassidy ...»
The then Attorney General, James B. Karugu, as the chief legal advisor to the government, responded by criticizing the decision of the judge. He did not last long in his position. After that, the Controller and Auditor General questioned why a state owned corporation engaged the services of a private lawyer in this particular case.17 His office became the object of executive branch criticism. Moi interpreted both of these actions as direct threats to his leadership and thus pressured parliament to enact the amendments to give him more authority over the judiciary and the audit department. The police had, through Act 14 of 1988, the prerogative to detain the critiques of the regime for fourteen days while coercing them into submission. By this time parliament was functioning largely as a rubber stamp of policies initiated by the presidency.
President Moi's control of parliament thereafter was extended to elections. The "Queue" voting system introduced by KANU in 1986 replaced the secret ballot with a system where voters lined up behind candidates. Those parliamentary candidates who secured more than 70 percent of the votes did not have to go through the process of the secret ballot in the general elections. This system encouraged electoral rigging and paved the way for what has been described elsewhere as "selection within an election". In a situation where there was a dispute over head-count, a repeat of the same process was not possible at the end of the exercise.18 The provincial administrators, who were the election officers, were only answerable to the presidency and they declared as winners only those candidates favored by the regime. Disputes arising out of nominations were often refereed to the president personally as the final arbiter over matters pertaining to the only political party in the country. Kenyans thus lost their right to vote for parliamentary candidates of their choice.
The judicial system could not protect human rights either. The British judges who have continued to serve Kenya as part of the British overseas development aid are more susceptible to the manipulation than their Kenyan counterparts because they are seconded on contracts.19 Under the terms of the agreement between Kenya and the United Kingdom, the renewal of contracts were at the discretion of the Kenya government.20 A former British expatriate judge in Kenya, Eugene Cotran, openly stated that in cases in which the president has direct interest, the government applied pressure on the expatriate judges to make rulings in favor of the state.21 It was as a result of similar circumstances, that two expatriate judges, Justices Derek Schofield and Patrick O'Connor, resigned because of what they called a judicial system "blatantly contravened by those who are supposed to be its supreme guardians".22 Interference with the judicial process in the late 1990s, with respect to "political" cases, rose to a new high. At a workshop held at Mbagathi (Nairobi) in April 1995, Judges Bena Lata and William Mbuya accused the government of interfering in cases that were then in court.23 The attempts by the Law Society of Kenya (LSK) to achieve the repeal of the restrictions and to handle legal cases in the courts of law without interference and intimidation landed some of the outspoken lawyers in detention in the 1980s. In 1990, the Office of the President succeeded in manipulating the LSK elections which saw its sponsored candidate, Fred Ojiambo, defeating the pro-multiparty supporter, Paul Muite, for the chairmanship.24 This move was designed to control the legal profession by the state.
To bolster his grip on power, Moi also embarked on the gradual Kalenjinization of the public and private sectors from the 1980s. Moi is a Tugen, one of the smaller Kalenjin ethnic groups. He began to "de-Kikuyunize" the civil service and the state-owned enterprises previously dominated by the Kikuyu ethnic group during Kenyatta's regime. He appointed Kalenjins in key posts in, among others, Agricultural Development Corporation (ADC), Kenya Commercial Bank (KCB), Kenya Posts and Telecommunications (KPT), Central Bank of Kenya (CBK), Kenya Industrial Estates (KIE), National Cereals and Produce Board (NCPB), and the Kenya Grain Growers Cooperative Union (KGGCU). He created Nyayo Tea Zones (NTZ), Nyayo Bus Company (NBC) and Nyayo Tea Zones Development Corporation (NTZDC).25 The only remaining major worry for the presidency by 1990 was the church, particularly the Anglican Church (then known as the Church of Province of Kenya), the Catholic Church and the Presbyterian Church of East Africa, which together account for over 70% of the Kenyan Christian community, a majority of the population. Together with the umbrella organization, the National Council of Churches of Kenya (NCCK), the church has persistently and consistently used the pulpit to criticize Moi's authoritarian regime.26 What Moi has established over the years is a clear manifestation of an institutionalized authoritarian regime with a habit of human rights violations. It was not until the return of multiparty politics in Kenya, after demonstrations in 1990, that the situation changed.
ASSASSINATION, REPRESSION AND DETENTION WITHOUT TRIAL OF DISSIDENTSWhen the Kenya African Democratic Union (KADU), of which Moi was the chairman, crossed the floor and joined KANU in 1964, Moi was appointed by Kenyatta as the minister for home affairs. He became the Vice-President in 1967, but kept the home affairs portfolio. The
Kenyan police force, which at the time of independence out numbered the national defense forces, was under his jurisdiction as the minister for home affairs. Kenya Police includes the Criminal Investigation Department (CID), the paramilitary General Service Unit (GSU), and the Directorate of Security and Intelligence (DSI). Moi therefore was exposed to the structure and functions of the police force for fourteen years before he became president. Under Kenyatta's instructions, Vice-President Moi invoked his administrative prerogatives to detain Oginga Odinga and the other eight leaders of the then opposition Kenya People's Union (KPU) in 1969 when that party was proscribed by Kenyatta. Moi explained that the KPU leaders were detained because "any government worth its salt must put the preservation of public security above the convenience of a handful of persons who are doing their utmost to undermine it".27 As the person in charge of internal security for fourteen years, he established a network of supporters within the ranks of the intelligence community. It was one of his counter-intelligence supporters, James Kanyotu, who telephoned him when Kenyatta died in 1978.28 Detentions and political trials, torture, arbitrary arrests and police brutality reminiscent of the colonial era have become common during Moi's tenure. He perceives human rights generally as alien and Euro centric conceptions inconsistent with African values and culture. He views the pro-democracy and human rights advocates in Kenya as unpatriotic, disloyal, and ungrateful individuals influenced by what he calls foreign masters.29 A few years after taking over the presidency, Moi began to exercise his style of authoritarianism by detaining a number of Kenyans critical of his government. Table One indicates the extent to which detention has been consistently used as an instrument for suppressing Moi's outspoken opponents in the 1980s and 1990s. Some of these detainees were former or sitting MPs arrested for demanding, among other things, the introduction of multiparty politics.
After the university staff union was banned, University of Nairobi faculty members, Willy Mutunga and Katama Mukangi, were detained for what Moi called "over-indulgence in politics".30 This was just the beginning of the crackdown on Kenyans by his Administration in the 1980s. Apart from detaining the UASU leaders, the passports of lecturers considered to be critical of his rule were seized.31 Moi's actions were meant to silence the intelligent, perceived to be critical of his authoritarian rule. The emergence of the little known clandestine London based movement, Mwakenya, set the stage for more widespread human rights violations by his Administration.
In 1986 alone, 100 people were arrested and detained for their alleged association with Mwakenya, the movement started by some Kenyans in Europe who had fled Moi's oppression, demanded, inter alia, social justice and respect for human rights.32 Even though Moi made a big issue out of the movement, there was no tangible evidence of a well organized group in the country that threatened Kenya's national security and which would have warranted the massive arbitrary arrest, torture, and detention without trial of the suspects. Moi used the same tactic when he denounced the February Eighteenth Movement (FEM) which he accused of planning attacks on Kenya to be launched from Uganda in the early 1990s.33 Between 1989 to 1991 Kenya saw one of the worst human rights violations in its history.
Moi accused advocates of multiparty politics of subversion, and thereby got a fresh excuse for detaining a new generation of his critics. A number of the champions of multiparty politics-John Khaminwa, Raila Odinga, Mohammed Ibrahim, Gitobu Imanyara, Kenneth Matiba and African Studies Quarterly | Volume 5, Issue 1 | Winter 2001 http://www.africa.ufl.edu/asq/v5/v5i1a1.pdf Human Rights Abuse in Kenya Under Daniel arap Moi, 1978-2001 | 7 Charles Rubia--among others, were detained under inhuman conditions and without trial.
Human rights lawyers, Gibson Kamau Kuria and Kiraitu Murungi, fled to the United States to avoid being jailed.
Arrests and detentions in fact followed every one of Moi's warning against his critics. As has been the practice throughout his leadership, the police moved quickly and arrested those in the forefront for democracy, with the judiciary merely sanctioning what is commonly known in Kenya as political cases.34 A case becomes political when Moi makes a direct statement regarding the case in question even when it has subjudice implications.35 The ruling against the Universities Academic Staff Union (UASU) and its officials between 1993 to 1995 serve as good examples of the level of state interference in political cases.36 The union which sought to promote academic freedom and professionalism in Kenya universities was defended by seven well known human rights lawyers: Pheroze Nowrojee, James Orengo, Gibson Kamau Kuria, Paul Muite, Kiraitu Murungi, Otieno Kajwang' and Kathurima M'Inoti, among others. The courts refused outright to hear it while the police harassed its officials.
Suppression of freedom of the press, assembly, association, expression and movement and other fundamental rights of individuals were extended to the press, and non-governmental organizations. In 1991 Moi banned the production of George Orwell's Animal Farm. He also banned Ngugi Wa Thiong's play Ngaahika Ndeenda (Kikuyu for, "I Will Marry When I Want") considered by the regime to be subversive because it attacks post-independence African dictators.37 By this time detention and the violation of human rights were regularly protested by civil society, with the church and the LSK taking the lead. Since the 1980s the church had remained the central locus of dissent against the Moi regime, with the pro-democracy and human rights movements using cathedrals and the compounds of churches as venues for expressing their views and drawing plans for action. But using the church as a refuge did not deter the regime from arresting, assaulting and detaining its critiques within church compounds. In one of his sermons, the late Anglican Bishop Alexander K. Muge emphasized that the church has a moral obligation to "protest when God-given rights and liberties are violated" and to " give voice to the voiceless".38 Even though some politicians and the Office of the President condemned his criticism of the queue voting system, Bishop Muge maintained that: "I shall not protest against violations of human rights in South Africa if I am not allowed to protest the violation of human rights in my own country".39 Yet not even the clergy was spared arrest by the police. The Presbyterian minister Rev. Timothy Njoya was arrested in 1988 for suggesting that Kenyans should hold discussions on critical questions affecting the country. Bishop Muge's death in a car crash in August 1990 is still shrouded in mystery.
As demands for competitive elections and an end to detention without trial continued, Kenya's Foreign Affairs Minister, Dr. Robert Ouko, was assassinated in February 1990.
Demands to reveal his real murders amplified those for pluralism and respect for human rights.
To save his regime from collapse, Moi adopted even greater authoritarian tactics arguing on a number of occasions that multipartism would cause chaos in the country because Kenya was not "cohesive enough". Clergymen, lawyers, and other pro-democracy and human rights advocates were persistently arrested and harassed. The crackdown intensified during the Saba Saba (July 7) 1990 meeting, organized by the pro-democracy and human rights advocates. Some African Studies Quarterly | Volume 5, Issue 1 | Winter 2001 http://www.africa.ufl.edu/asq/v5/v5i1a1.pdf 8 | Adar amd Munyae of these leaders later founded the Forum for the Restoration of Democracy (FORD). The forum advocated an end to jailing dissenters without trial. The attempt by the American embassy to broker a negotiated permission for FORD to hold its first public meeting scheduled for 16 November, 1991 failed. The government refused to issue a permit and instead arrested Oginga Odinga and Gitobu Imanyara. Masinde Muliro, Martin Shikuku, James Orengo, and Paul Muite managed to go into hiding. The FORD leaders, however, later went ahead with the meeting, but were arrested by the police who forcefully dispersed the gathering.