«Published by the Center for African Studies, University of Florida ISSN: 2152-2448 African Studies Quarterly E Staff Elizabeth Beaver Lin Cassidy ...»
Instead of ending detention, the government arrested leaders who then were charged under section 5(10)(d) of the Public Security Act. The Act states that "any person who prints, publishes, displays, distributes or circulates notice of, or in any other manner advertises or publicizes, a public meeting or public procession which has not been licensed under this section, shall be guilty of an offense".40 The US Congress, concerned with human rights violations and corruption, passed the Foreign Operations, Export Financing, and Related Programs Appropriations Act of 1991 requiring Kenya to meet certain conditions before $15 million in economic and military aid could be disbursed.41 These conditions were based on the provisions that Kenya "charge and try or release all prisoners, including any persons detained for political reasons; cease any physical abuse or mistreatment of prisoners; restore the independence of the judiciary; and restore freedoms of expression."42 US Congressional concerns for human rights violations in Kenya gained momentum in the 1990s, culminating in a fact finding mission to Kenya by high ranking Senators and the release of Kenneth Matiba, Charles Rubia, Raila Odinga, and Gitobu Imanyara.
At this point the KANU government tactically gave in. It agreed to repeal Section 2A of the Constitution which made Kenya a de jure one-party state. This decision paved the way for the formation of political parties, namely FORD (Forum for Restoration of Democracy) led by the opposition veteran, Oginga Odinga, and the Democratic Party of Kenya (DP) under Mwai Kibaki. There were other smaller parties. By splitting their votes against Moi's KANU, the opposition assured KANU a victory, albeit one characterized by violent repression and unfairness at the polls. Violations of human rights continued even under the conditions of a symbolic multi-party democracy.
HUMAN RIGHTS VIOLATIONS UNDER MULTI-PARTY RULE
When Kenya entered the second multi-party era it was assumed that by allowing opposition to exist, the government would create an enabling environment for its citizens to freely exercise their constitutionally guaranteed rights. What resulted, however, was continuity in human rights violations by the police, and government-supported armed militia and hired thugs. The arbitrary arrests, detentions, and the practice of the interference of the judiciary by the executive, also continued for most of the 1990s.
In the early 1990s, the KANU government went as far as instigating ethnic violence in order to portray the multi-party system as inappropriate for Kenya. Ethnic cleansing was introduced in order to eliminate opposition in "KANU-only zones." From various independent human rights reports, the 1992 and 1998 ethnic violence in the Rift Valley Province was deliberately inflamed for political purposes by members of the government. Violence spread in 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 | 9 the Likoni-Kwale (Coast Province) prior to and after the 1997 general elections, in areas where opposition to KANU was strong. The 1998 clashes were different from the previous ones in that this time the Kikuyu community in the Rift Valley retaliated in an organized fashion which the attackers had not anticipated.
Independent investigators again confirmed state complicity in these 1997 violations of human rights. A task force appointed by KANU as well as a parliamentary committee reaffirmed the findings of the National Christian Council of Kenya (NCCK) that the state was involved in widespread ethnic cleansing in the Rift Valley.43 As ethnic conflict and other forms of human rights violations intensified in the early 1990s, the church issued statements protesting the government's inaction in maintaining order and in stopping human rights
violations. In one of their pastoral letters addressed to Moi, the Roman Catholic Church wrote:
"Although our pleas, requests and advice... seem to have been ignored by you, we on our side will not abandon our responsibilities. We have seen and heard of so much wickedness perpetrated in Kenya since the clashes began. Innocent people, peaceful and humble, and even churches and mosques have been attacked and destroyed. All these abominations are done in your name, by some of your Cabinet Ministers, your DCs, DOs, your GSU and your police."44 The use of militia to instigate violence on behalf of KANU and the government began with the 1991-1993 ethnic clashes. To attack opposition groups, "Kalenjin warriors" donned traditional attire and used arrows from South Korea transported by helicopters.45 Political violence also occurred in 1997 and 1998 in the Rift Valley Province, particularly in Trans Nzoia and Nakuru Districts. As in the 1992 ethnic clashes, the conflict was between pro-KANU supporters and ethnic communities that were deemed sympathetic to the opposition.
According to human rights groups, the fact that the Provincial Administrators, the GSU, and the police were involved in the conflicts again implicated the state. An investigative report into the Likoni-Kwale violence of August 1997, produced by the Kenya Human Rights Commission, for instance, established that the causes of the violence were essentially the politicization of the socioeconomic situation in the region by local politicians.46 The report implied involvement of the government in that Mombassa KANU politicians, Rashid Sajad and Karisa Maitha, had paid a visit to an armed militia training camp in Shimba Hills. They reassured young men recruited from Uganda, Rwanda (mainly Hutus), and Ukunda (Coast Province) that the government was not only behind but also supported the expulsion of "upcountry" people from the area.47 Apart from the assumption based on evidence that the clashes were not being perpetrated by indigenous people, there are also other instances that indicate that the government was either not concerned about the human rights violations against opposition inclined ethnic groups or it was behind the attacks. On January 27, 1998, a group of Catholic priests and nuns, international journalists, and a unit of about thirty-eight policemen witnessed a Kalenjin raid on a Kikuyu homestead near the junction of Njoro and Molo in the Rift Valley Province. The police did not act until the nuns ran after the raiders.48 As noted above, one of the main objectives of the regime in instigating ethnic cleansing was to "prove" to Kenyans and the world that multiparty politics was not suitable for a multi-ethnic country like Kenya. Moi wanted to demonstrate that he is not willing to relinquish power and control of the state. Indeed, he is fearful of the potential consequences if he were to loose power African Studies Quarterly | Volume 5, Issue 1 | Winter 2001 http://www.africa.ufl.edu/asq/v5/v5i1a1.pdf 10 | Adar amd Munyae because of the misdeeds and corrupt practices associated with his regime. Despite a multiparty election, detention, arbitrary arrests and torture of ordinary people -- particularly the prodemocracy and human rights advocates and the opposition members of parliament -- continued although at a declining rate throughout the 1990s. The continued arrests of members of parliament in particular undermined the right of representation. Members of parliament have been arrested for addressing "illegal" meetings even in cases where such meetings are licensed by the government.49 In a report on Kenya submitted to the United Nations in 1993, the Committee on Economic, Social and Cultural Rights (CESCR) stated that although Kenya has been a party to the Convention since 3 January 1976, it had not submitted a single report as stipulated under Articles 16 and 17 of the covenant. The committee also observed that there is no institutional mechanism in Kenya responsible for the enforcement of human rights, with the High Court performing no constitutional role in this regard.50 The state continued to interfere with court evidence as was shown in the case of Koigi wa Wamwere who had been charged with subversion in 1994. His defense attorneys discovered that the Magistrate, William Tuiyot, had interfered with the proceedings.51 Despite the pressure mounted by internal pro-democracy and human rights groups, another type of repression came into the scene after the 1992 elections: informal repression by the state. This involved the use of proxy agencies and groups to attack the pro-democracy and human rights supporters. Although not new to Kenya, this became an important political tool under Moi in the multiparty era.52 During the December 1992 elections, and again in 1997, the KANU government used its control over the instruments of coercion and the Electoral Commission to place an undue advantage over the opposition. Private militia and groups of thugs were used to disrupt opposition rallies.
At the same time, KANU adopted a number of strategies that undermined free and fair elections in 1992 and 1997. Among them was lopsided voter registration which excluded opposition voters, an Electoral Commission of Kenya (ECK) that was biased, intimidation of journalists, and banning of print media that is critical of the regime. The Provincial Administration in both elections helped KANU undermine the opposition party's prospects from gaining ground in the elections. The commissioners of the ECK were appointed by the President alone despite protest by the opposition. It the ignored protests of nearly four million eligible voters, (particularly the youth who had attained the age of eighteen years) who were denied registration in 1992.
Voting in 1992 and 1997 was characterized by the suppression of voters' rights by the government in 1997. It was reported that in the Likoni polling stations in the Coast Province, "up-country" people could not vote because their names did not appear on the register, even though they had viable voter registration cards. In one incident, an "up-country" lawyer working in Mombassa insisted on checking the register and actually found his name.53 The ECK was taking advantage of people's ignorance to ensure a KANU victory at the coast and elsewhere. Journalists were ill-treated and attacked by police for reporting these incidents. In February 1997, for instance, Susan Mosoke, a photographer, was assaulted by an administration policeman when covering a story on the deliberate delay in the issuance of identity cards so that people would not be able to register for voting.54 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 | 11 In the build-up to the 1997 elections, opposition demonstrations in favor of constitutional reforms to ensure free and fair elections were met with police beatings. Under external donor pressure, some amendments were made and enacted in November 1997, however, the police continued to contravene the constitution by violating the rights enshrined in the constitution.
The reform champions demanded repeal of the Preservation of Public Security Act, sections of the Penal Code dealing with sedition and treason, the Public Order Act, the Chiefs Authority Act, the Administration Police Act and the Societies Act.55 These were laws used to lock up and detain human rights campaigners and pro-democracy activists. These reforms were actively supported by church groups, opposition parties, human rights organizations, and other NGOs under the forum of the National Convention Assembly (NCA). They challenged the impartiality of the Electoral Commission, decried restrictions on opposition parties, and demanded unhindered access to the broadcast media and a fair registration process.56 These reforms were the result of negotiations by an inter-party forum known as the InterParties Parliamentary Group (IPPG). It made recommendations to Parliament and some laws were indeed changed.57 The Public Order Act gave way to a measure of freedom of assembly as long as police were notified by organizers of public gatherings. The police could now prevent the holding of a meeting if notice of another meeting had been received and there was a conflict.
However, the police are still authorized to stop or prevent the holding of a meeting if no notice has been given, or if another meeting in the same venue presents "clear or imminent dangers of the breach of peace or the public order."58 The police subsequently used this clause to stop meetings deemed as likely to undermine the ruling party's authority. The authority of the chief to regulate the movement of persons from the jurisdiction of one chief to another--another act violating the right of free movement--was repealed in the amendments to the Chiefs' Act.
However, the local administration still practices the power of arrest and detention.
In May 1998, a meeting by KANU and opposition MPs at Kwanza (Rift Valley Province) was declared illegal. The police beat politicians, journalists, and the general public to prevent the rally.59 A subsequent opposition public meeting was invaded by thirty armed raiders. The police reportedly did nothing to stop the raiders. On January 16, 1999, during vote counting of a by-election in Eastern Province, police used wooden clubs and batons to disperse a crowd outside the vote counting hall. They were protesting the announcement of a narrow victory by the KANU candidate based on the counting of the contested ballot boxes.60 The police entered the hall and beat up opposition MPs. On June 10, 1999, police resorted to tear gas and force to break up a public rally by KANU and opposition MPs at Machakos, Eastern Province, who had met to discuss issues of concern to the Kamba people.61 On February 26, 1999, police used tear gas and police dogs to stop MPs and farmers from holding a public rally at Eldoret, Rift Valley Province. In this context, police brutality was directed towards leaders who wanted to discuss the problems their constituents were facing; the government perceived this as criticism.