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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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Despite the presence of a vocal opposition in parliament since 1992, the judiciary has contributed to the consistency and continuity of the human rights violations. Victims of human rights violations are thus left without judicial protection, the High Court having decided that it has no jurisdiction to enforce the human rights provisions of Chapter V of the Constitution, even though section 84 of the Constitution provides for redress before the High Court for African Studies Quarterly | Volume 5, Issue 1 | Winter 2001 http://www.africa.ufl.edu/asq/v5/v5i1a1.pdf 12 | Adar amd Munyae violation of any of its provisions.62 Undue interference with the judiciary by the executive branch in matters of appointment continued with the presidency playing a major role.

Judges who made rulings in favor of human rights victims exposed themselves to punitive transfers. In September 1994, a chief magistrate was transferred to Kitui, Eastern Province (130 km. from Nairobi) after he refused to accept as evidence the confession of six men accused of raiding the Ndeiya Chief's Camp near Nairobi. The appointment of Bernard Chunga (formerly the chief state Prosecutor) as Chief Justice by Moi in September 1999, was widely criticized by the human rights lawyers as an attempt to further reduce the independence of the judiciary.

Chunga was seen as personally loyal to the President.63 In July 1999 the High Court dismissed a petition case filed by Mwai Kibaki, the leader of the Democratic Party, against Moi for rigging the 1997 presidential elections through the Electoral Commission. The case was dismissed on a technicality that Kibaki failed to submit a copy of the petition to Moi personally.64 The truth was that Democratic Party lawyers had been denied personal access to Moi's office by his security guards.

The existence of a strong opposition did not help the justice system. In 1999 Moi stated that courts should not interfere in land matters, affairs of public universities, or issues relating to political parties.65 This can help to explain the reason why the courts have handled the political cases in the manner they did. In March 1997, the Chairman of the Kenya Judges and Magistrates Association (KJMA), stated that: "these pronouncements clearly threaten the rule of law, the independence of the judiciary, and the constitutional doctrine of separation of powers."66 The war-mongers in the ruling party were again protected by the ruling party as they urged violence against the opposition supporters during and after the 1997 elections. At a KANU rally in Narok, some pro-Moi members of parliament threatened DP supporters with reprisals after Kibaki announced his rejection of the election results. A Minister in the Office of the President, Simon Kiptum Arap Choge, warned that there would be bloodshed country-wide if Kibaki's petition threatened Moi's regime, but no action was taken by the police for incitement to violence.67 One cannot overlook the fact that members of the opposition also contributed to incitement of violence through issuing public statements. For instance, Mwai Kibaki is quoted as having said that "Mr. Moi cannot afford to maintain silence as if nothing is happening...[when] the killing of our citizens has been going on in the last two weeks. It is only natural that the victims will take arms to defend themselves."68 This sentiment arose out of the government's lack of action in curbing the ethnic violence. While opposition leaders, such as Stephen Ndicho, were being arrested and charged with inciting violence, nothing was done to KANU and KANU leaders.

In 1997 Minister Francis Lotodo asked all non-Kalenjins to leave the Rift Valley, again contradicting the provisions of freedom of movement in the constitution. In September 1999 President Moi himself stated that government officials should deny "permits" to politicians who use public rallies to abuse other leaders. However, officials now have legal rights to cancel such rallies only if they are a threat to security or if there is another meeting in the same venue.69 The KANU government continued to use force to oppress the opposition in the late 1990s, even after the incorporation of the IPPG amendments to the Constitution. Peaceful rallies calling for political and constitutional reforms were persistently violently broken up by the security forces.

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 | 13 On June 10, 1999, the police, complemented by a squad of "KANU youth" and the infamous jeshi la mzee (which in Swahili literally means, old man's militia), violently disrupted a peaceful rally organized by religious and civil society groups to protest the government's handling of the constitutional review process. A number of people, including the Reverend Timothy Njoya who has been vocal in criticizing the government, were seriously injured.70 The jeshi la mzee, allegedly sponsored by the Assistant Minister in the Office of the President, Fred Gumo, again appeared on the scene in May 1997 and was used to violently disrupt pro-reform rallies.71 Notwithstanding the elections, government was complicit to violence against its citizens who were exercising their rights of association and expression.

Conclusion

The move to strengthen human rights in Kenya has run against the authoritarian rule of Daniel Arap Moi, and his patronage system. Reforms since the introduction of multipartism have created a stalemate between Moi's government and most of the opposition members of parliament, church leaders, and other pro-democracy and human rights advocates. Despite the reinstatement of multiparty elections and attempts to annul laws that permit abuse of human rights, government security agents and armed militia continue to violate civil and individual liberties. The main explanatory factor of why so little has changed is Moi's pattern of rule and his political beliefs.





Moi's centralization and personalization of power has led to the subordination of the functions of the judiciary and of parliament. As was the case during the de jure one-party state rule, human rights violations by his administration have continued even after the post-1992 and 1997 multiparty elections. Moi has persistently demonstrated unwillingness to uphold the sanctity of human rights at home. His administration has shown ambivalence in dealing with violence which has persisted in the country, particularly in the Rift Valley and the Coast Provinces.

It has been argued in this paper that were it not for the partial success of the IPPG in allowing President Moi and KANU to maintain control, the government would have used the Likoni-Kwale violence as an excuse to declare a state of emergency and thus postpone the elections indefinitely. Despite constitutional reform, the government has been unable to fulfill its obligation to the country's citizens as enshrined in the constitution and international human rights treaties that it is party to. In and of themselves, the elections of 1992 and 1997 proved insufficient to guarantee human rights. It is clear that an independent judiciary and an accountable police force are required if human rights and civil liberties are to be secured for the majority of Kenya's peoples.

–  –  –

Notes

1. See, Leonard, David, African Successes: Four Public Managers of Kenyan Rural Development.1991, Berkeley: University of California Press, p. 169.

2. Haugerud, Angelique, The Culture of Politics in Modern Kenya.1995, Cambridge:

Cambridge University Press, p. 82.

3. See, Moi, Daniel T. Arap, Kenya African Nationalism: Nyayo Philosophy and Principles.

1986, London: Macmillan. See also, Godia, George, Understanding Nyayo: Principles and Policies in Contemporary Kenya. 1984, Nairobi: Transafrica.

4. Ochieng, William R. " Structural and Political Changes", pp. 83-109, in Decolonization and Independence in Kenya, 1940-93, B. A. Ogot and W. R. Ochieng, Editors. 1995, Nairobi: East African Educational Publishers, pp. 83-109.

5. Kenya, The Constitution of Kenya. Laws of Kenya, rev. ed. 1998, Nairobi: Government Printer, Chapter II, PartI (6)(1-2).

6. Amnesty International, Kenya, Torture, Political Detention and Unfair Trials. AI Index AFR 32/17/87, 1987 and Amnesty International, Kenya: Torture Compounded by the Denial of Medical Care. AI Index AFR 32/18/95, 1995.

7. Widner, J. 1994. "Two Leadership styles and Patterns of Political Liberalization". African Studies Review, 37(1)(April):151-174.

8. Hempstone, Rogue Ambassador, op. cit., pp. 39 and 43.

9. Ibid., p. 290.

10. See, Kimondo, G. K. "The Bill of Rights", in The Citizen and the Constitution. K.

Kibwana, G. K. Kimondo and J. T. Gathii, Editors. 1996, Nairobi: Claripress, pp. 54-56.

11. Weekly Review, Nairobi, 8 May 1987. See also, Ogot, B. A., "Politics of Populism", pp.

187-213, in Ogot and Ochieng, op. cit., 187-213.

12. See Adar, K. G. "Ethnicity and Ethnic Kings: The Enduring Dual Constraint in Kenya's Multiethnic Democratic Electoral Experiment". Journal of the Third World Spectrum, 5 (2)( Fall 1998): 71-96.

13. See, Kenya, Report of Judicial Commission Appointed to Inquire into Allegations Involving Charles Mugane Njonjo. Nairobi: Government Printer, November 1984.

14. KANU Maendeleo Ya Wanawake Organization, KANU Maendeleo Ya Wanawake Organization, Information Booklet. Nairobi: Government Printer, 1990, p. 6.

15. Andreassen, B., "Kenya", in Human Rights in Developing Countries Yearbook 1993. B.

Andreassen and T. Swanehart, Editors. 1993, Copenhagen: Nordic Human Rights Publications, p. 193.

16. Maina, W., "Constitutional Crisis in Kenya: An Inquiry into the Origins, Nature and Prospects of Reform", Paper Precedented to the IPAR Project on Constitution- Making in Kenya, November/ December 1996, p. 67.

17. Ibid.

18. See generally, Adar, K. G., "The Interface Between Elections and Democracy: Kenya's Search for a Sustainable Democratic System, 1960s - 1990s", pp. 340-360, in African

Democracy in the Era of Globalization, J. Hyslop, Editors. 1999. Johannesburg:

Witwatersrand University Press, 1999.

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 | 15

19. Africa Watch, Kenya: Taking Liberties. Washington D.C.: An African Watch Report, p.

151. July 1991. "Hannan Lucy, Bias and Judicial Outrage". New Law Journal (London) 141(1991): 900-901 and "Constitutional Law According to Mr. Justice Dugdale" Nairobi Law Monthly, 34 (19910: 15-16).

20. Ibid., 148.

21. Ibid., pp. 151-152.

22. Ibid., P. 153 and generally Omaar, Rakiya, "Ten Years of President Arap Moi in Kenya".

Human Rights Watch. New York: Human Rights Watch, October-November 1988.

23. Carver Richard. Writenet Country Report, Kenya Update to End of July 1995, (Writenet Country Papers, August 1995).

24. Widner, The Rise of a Party-State in Kenya, op. cit., pp. 189-190.

25. Ibid., p. 100.

26. See Sabar-Friedman, G., "Church and State in Kenya, 1986-1992: The Churches' Involvement in the "Game of Change", African Affairs, 96(1997) : 25-52. See also, Throup, D., "Render unto Caesar the Things That Are Caesar's: The Politics of Church-State Conflict in Kenya, 1978-1990", pp. 154-169, in Religion and Politics in East Africa B.

Hansen and M. Twaddle, Editors. 1995, London: James Currey.

27. See, Current Biography. New York: H. W. Wilson Co., p. 262, 1979.

28. Hempstone, Rogue Ambassador, op. cit., p. 35.

29. See, Adar, K. G., "Human Rights and Academic Freedom in Kenya's Public Universities:

The Case of The Universities Academic Staff Union". Human Rights Quarterly. 21(1) (February 1999): 187.

30. Ibid., p. 187.

31. Ogot, "Politics of Populism", op. cit., p. 199.

32. See Umoja, Straggle for Democracy in Kenya: Special Report on the 1988 General Elections in Kenya. London: Umoja secretariat, p. 96, 1988 and Widner, The Rise of a Party-State in Kenya, pp. 177-8.

33. no footnote 33

34. Mutua, Makau wa., A long Road to Uhuru: Human Rights and Political Participation in Kenya. Montreal: International Centre for Human Rights and Democratic development, March 1993.

35. Kuria, G. K., "Freedom of Expression and Contempt of Court." Paper Presented at the Second International Commission of Jurists (Kenya Section) Workshop on Administration of Justice in Kenya Courts as Guardians of Justice, 30 March, 1995 and Makali, D., "Court of Appeal Ruling on Don Reeked of State Interference" People (Nairobi, 1994.)

36. See, Adar, K. G., "Human Rights and Academic Freedom", op. cit.

37. Ross, S, "The Rule of Law and Lawyers in Kenya". Journal of Modern African Studies, 30(3)(1992): 428 and Mulei, C., "Banning of Plays not Justifiable Legally" Sunday Standard (Nairobi), 17 March 1991.

38. Sabar-Friedman, "Church and State in Kenya, 1986-1992", op. cit., p. 32.

39. Weekly Review, 24 April 1987.

African Studies Quarterly | Volume 5, Issue 1 | Winter 2001 http://www.africa.ufl.edu/asq/v5/v5i1a1.pdf 16 | Adar amd Munyae

40. Kenya, Laws of Kenya. Nairobi: Government Printer, 1982, Cap 56, part III, para.

5(10)(d).

41. US Congress, Foreign Operations, Export Financing, and Related Programs Appropriations Act, Public Law No. 101-513, at 593, 1991.

42. Ibid, pp. 159. 160.

43. See National Council of Churches of Kenya, CPK/ARCH. Synod Committee Report, April 1992 and Abuom, A., The Role of Kenyan Churches in Democratization. Paper Presented at a Conference on the Christian Churches and Africa's Democratization, Leeds, 1993.

44. See Kenya Episcopal Conference, "An Open Letter to His Excellency the President Daniel Arap Moi and the People of Goodwill in Kenya". Standard(Nairobi), 30 October 1993.

45. Sicherman Carol. "Kenya" in Race & Class. (April-June 1998, Vol. 57 (no. 4): p 63.

46. Amnesty International, Kenya Annual Report for 1997, (Amnesty International, 1998).

47. Ibid.

48. Article 19, Kenya post-Election Political Violence, Article 19, London 1998:

pp 5-6.



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