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A Report on the 2007 General Elections

February 27, 2008


Table of Contents

Page

Abbreviations/Acronyms

3

List of Tables and Figures

4

1.0

Introduction

5

2.0

Political Violence

15

3.0

Violence Against Women

21

4.0

Hate Speech

23

5.0

Voter Bribery and Abuse of State Resources

29

6.0

Laws Breached with Impunity

35

7.0

Election Day and its Aftermath

41

8.0

Conclusions and Recommendations

47

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Abbreviations/Acronyms CAPF

Coalition for Accountable Political Financing

CDU

Central Depository Unit

COG

Commonwealth Observer Group

CRECO

Constitution Reform Education Consortium

CSOs

Civil Society Organizations

ECC

Electoral Code of Conduct

ECK

Electoral Commission of Kenya

EMRC

Election Monitoring and Response Centre

EUOM

European Observation Mission

IDPs

Internally Displaced Persons

IMLU

Independent Medico-Legal Unit

IPPG

Inter-Parties Parliamentary Group

KACC

Kenya Anti-Corruption Commission

KBC

Kenya Broadcasting Corporation

KHRC

Kenya Human Rights Commission

KHRI

Kenya Human Rights Institute

KICC

Kenyatta International Conference Centre

KNCHR

Kenya National Commission on Human Rights

KPTJ

Kenyans for Peace with Truth and Justice

LSK

Law Society of Kenya

MMPR

Mixed Member Proportionate Representation

NARC

National Rainbow Coalition

NGOs

Non-Governmental Organizations

ODM

Orange Democratic Party

ODM-K

Orange Democratic Party of Kenya

PNU

Party of National Unity

RPP

Release Political Prisoners Trust

SMS

Short Messaging Service

UDHR

Universal Declaration of Human Rights

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List of Figure and Tables

Page

Figures Figure 1.1: Province, Constituency and Monitors

9

Figure 1.2: Nature of Events

10

Figure 1.3: Reports from Monitors by Province

11

Figure 3.1: Incidences of and Incitement to Violence by Province

15

Figure 3.2: Deaths and Injuries by Province

17

Figure 5.1: Incidences and Types of Hate Speech by Province

23

Figure 6.1: Bribery Incidences by Province

29

Figure 6.2: Incidences of Abuse of State Resources by Province

32

Tables Table 1.1: Events Covered by Monitors

11

Table 1.2: Reports Received by Constituency

12

Table 3.1: Manifestations of Violence

16

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1.0 Introduction The KHRC is a national non-governmental organization founded in 1992 with a mission to promote, protect and enhance all human rights for all people of Kenya. Inspired by Vision 2012, which seeks to create a social movement and advocacy towards a human rights state, the KHRC is currently winding down its Strategic Plan 2004-8, whose five strategic objectives are: a) stimulating and/or organizing community-based advocacy networks; b) holding State and non-State actors accountable by ensuring that Kenya has a human-rights centred governance system; c) strengthening the capacity of the KHRC as a leader in human rights discourse and democratic development; d) enhancing the capacity of KHRC to learn, adopt and innovate human rights programming; and e) ensuring independent and sustainable financing. All these objectives are to be enhanced by end of this year, 2008, and fully realized in 2012. The KHRC’s Electoral Interventions Over the years, the KHRC conceptualized and implemented electoral interventions geared towards ensuring accountable and human rights-centred governance of political affairs in Kenya. 1 During the 1997 General Elections, the KHRC focused on two initiatives. First, joint media monitoring with Article 19, the International Centre against Censorship. The goal of this project was to assess the impartiality and independence of the public KBC’s coverage of political party issues and events, both in scope and substance. The results were compiled into monthly reports disseminated in Kenya and abroad. 2 Second, monitoring and documenting politically instigated violence. The KHRC published and disseminated reports and books highlighting human rights violated, perpetrators involved and interventions required. 3 In the 2002 General Elections, the KHRC took the position that the elections offered a transitional moment to effect regime change that would ensure Kenya was free of despotism, national decomposition and official corruption and abuse of power. 4 Thus, the focus was to ensure the political transition put Kenya on a trajectory towards democratic governance and political accountability by: a) informing the political process by setting the agenda on ‘Why and How to Bring About a Regime Change in Kenya’ 5 and b) independently and in partnership with the CDU Trust and the organizations constituting its Board of Trustees, monitoring and publishing reports on During the past three multiparty General Elections in 1992, 1997 and 2002, the electoral environment in Kenya had been characterized by serious and routine acts of repression, electoral fraud and other crimes, perpetrated by statesecurity agencies and politicians of the then ruling party and opposition counterparts and outlawed informal gangs and militias. The KHRC, similar to other human rights organizations, realized that perpetrators of the above offences enjoyed (and continue to enjoy) impunity. These patterns of breakdowns in the rule of law during elections have had the effect of restricting the human rights that guarantee free and fair elections. 2 This initiative was pursuant to Article 19 of the Universal Declaration on Human Rights, proclaiming that every person has the right to freedom of opinion and expression. For details, see Elections 1997: media watch and media monitoring in Kenya. Nairobi: Article 19 and KHRC, September 1997. 3 See, for instance, Killing the Vote: state sponsored violence and flawed elections in Kenya (KHRC) 1998; Kayas of Deprivation, Kayas of Blood: violence, ethnicity and the state in coastal Kenya. Nairobi: KHRC, 1997; Kayas Revisited: a post election balance sheet. Nairobi: KHRC, 1998. 4 See ‘Why and How to Bring About Regime Change in Kenya,’ Eyes on the Prize. Nairobi: KHRC, 2002. 5 Ibid. 1

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human rights violations committed during and immediately after the 2002 General Elections. 6 In the November 2005 National Referendum 7 on the Proposed New Constitution, the KHRC, in collaboration with the KNCHR, organized a joint observation project and campaign. The main objectives of this campaign were to: 8 enhance transparency and accountability in the public sphere by working to strengthen democratic governance; and expose statements and/or speeches by politicians amounting to incitement or calls for ethnic nationalism and/or hatred of those from other ethnic groups. Borrowing from this history, the KHRC thus planned to monitor and respond to human rights violations during the 2007 electoral process – including the preelections period (and political party nominations), polling day and the post election period, which have all been marked by violations of the rights to life, food and water, security, housing and property ownership among others. This report, Violating the Vote, concentrates on the pre-election period and the immediate aftermath of the 2007 General Elections to show the manifestations, nature and extent of human rights violations that occurred. The EMRC The KHRC’s EMRC was established to enhance accountability and equity in electoral governance in Kenya. Based on the UDHR, 9 the goal of the EMRC was to support the creation of a conducive electoral environment where voters and candidates would not face unreasonable limitations adversely affecting their fundamental freedoms as enshrined in the Constitution of Kenya and be free to act independently, intelligently, responsibly and lawfully while participating in the 2007 General Elections. The objectives of the EMRC were thus to: monitor and document the observance of human rights by all actors in the electoral process; organize human rights monitors to work effectively and seek redress for violations; and campaign for the observance of human rights standards CDU was incorporated as a public trust on August 7, 2001. It was a coalition of six Kenyan NGOs previously involved in monitoring electoral violence in Kenya including: the KHRC, the League of Kenya Women Voters, The Centre for Governance and Development (CGD), the Tawasal Foundation and the National Council for Churches in Kenya (NCCK). Its mission was to provide a centre with the capacity to receive, analyze, compile and disseminate information relating to electoral violence to all stakeholders and other potential users of information to prevent, reduce and eliminate electoral violence. For details, see: Report of Election Violence: January-April 2002; Institutional Management of Election Violence in Kenya: a case study by CDU; Monitoring Election Violence: final report of the 2002 General Elections, Nairobi: CDU, 2003, Political Violence in Marginalized Areas: a case study of Samburu and Lamu Districts, Nairobi: CDU, 2003; Darkness at Noon: the politics of cattle rustling and political violence in Transmara, Nairobi: CDU, 2003. 7 This was like a mini-General Election. 8 Other objectives were to: strengthen the fight against corruption by exposing the abuse of public office and the abuse of public resources during the referendum campaigns; enhance the fight against impunity through holding the individual politicians and senior public officials accountable to the rule of law; monitor incitement and use of hate speech along ethnic lines in the campaigns and or ‘civic education’; name and shame political leaders, public officials ad media agencies guilty of using hate speech and other exhortations to ethnicity as a means of gaining support for their position on the referendum; reduce campaign violence by exposing and holding to account politicians and public officials guilty of violating the public trust; and encourage Kenya women and men to participate in exposing abuse of public office and waste of resources by exercising their rights to take part in the conduct of public affairs in the country. See Behaving Badly, Deception, Chauvinism and Waste during the Referendum Campaigns: promoting accountability in the political process in Kenya, Nairobi: KHRC and KNCHR, 2006 9 UDHR, Article 21: “The will of the people shall be the basis of the authority of government; and will be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures.” 6

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through public interest media campaigns, civic engagement and litigation. To realize the above objectives, the EMRC undertook specific activities, which were: a) Recruiting, training and managing a network of election monitors. A total of 117 monitors were recruited, trained and deployed as 88 constituency-based monitors and 29 media correspondents; b) Assessing adherence of election monitors to the KHRC Code of Conduct for Election Monitors to affirm their impartiality and commitment to upholding the integrity of the electoral process. The monitors were supervised to ensure compliance with the Code; c) Collecting, collating and verifying information from the field and other sources, such as other observers and media houses. The EMRC received many written reports, pictures besides the Election Monitoring Tool reports, which inform analysis in this report; d) Entering data, analysing it and generating cumulative statistics on the nature and categories of human rights violations related to elections. A total of 387 Election Monitoring Tool reports were keyed into the database; 10 e) Processing complaints requiring the KHRC’s interventions. The EMRC received numerous complaints from monitors through calls and through emails, which were promptly dealt with; f) Releasing bulletins and press statements on major incidents or patterns of violations on a needs-basis. The EMRC released a bulletin in November 2007 and wrote numerous statements on election-related offences; and, g) Working with other election observers, the ECK, major political parties and civil society organisations during the monitoring process. The KHRC assigned this work to specific members of the KHRC’s Elections Team and other staff, including those at the EMRC. Through the above, the EMRC embarked on monitoring and documenting human rights violations related to the electoral process. The EMRC was guided by a Working Paper on Elections, which outlined the basic political and procedural rights to be guaranteed, protected and promoted for the elections to be termed a reflection of the will of Kenyans. As demonstrated in Chapter 2, these rights were what all monitors were on the lookout for to ensure compliance by State and non-State actors. 1) Planning for Monitoring The criteria for mapping where to monitor included seven considerations: • •

10

First, constituencies with female aspirants requiring protection against harassment and discrimination among other gender-based injustices; Second, constituencies undergoing and or prone to electoral violence;

For a detailed picture of which areas were covered, see Figure 1.2 in this Chapter

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• • • • •

Third, constituencies likely to experience abuse of public resources and institutions; Fourth, constituencies with a propensity for electoral irregularities and malpractices; Fifth, constituencies where minorities, among other marginalized groups, were likely to get no attention to enhance national representation and diversity; Sixth, gerrymandering, which perpetrates political inequities in the apportionment and identification of constituencies; and Seventh, constituencies where the KHRC has contacts and networks for effective interventions.

The EMRC then defined four key areas of focus. First, monitoring political violence, including but not limited to: oath-taking, incitement to violence, issuing political threats, disruption of political rallies by opponents or state security, politically-instigated clashes and any other actions in breach of public peace and security. Second, monitoring violence against women and other marginalised groups, which included investigating human rights violations impeding on the campaigns of women and physically-challenged civic, parliamentary and presidential candidates. Such violations included but were not limited to: political harassment, discrimination, rape, killings, assaults, insults and inadequate campaign resources and infrastructure. Third, monitoring the use of hate speech and propaganda, which are political utterances which are discriminatory, illegal and/or stereotypical and intended to incite feelings of contempt, hatred, hostility, suspicion and violence against those from other ethnic communities, religious groups or races in Kenya. Finally, monitoring corruption and abuse of public resources. This meant tracking vote-buying, destroying of voter cards, bribery and/or expedient provision of public services and misuse of public resources in the campaign period. This also included the abuse of government-plated vehicles among other ptate resources and the harassment of opposition supporters and the media by arbitrary arrests, detention and torture, among other cruel and degrading practices prohibited under domestic, regional and international human rights law. Using these four pillars, the KHRC planned to monitor in all eight provinces, in 79 constituencies with 88 monitors (assisted by 29 media monitors). Figure 1.1 below depicts the areas the KHRC planned to monitor, by province, constituencies and the number of monitors therein.

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Figure1.1: Province, Constituency and Monitors No. of Constituencies

No. of Monitors

25

20

19

20

16 15

10

10 10

11 11

11 11 9

9

8

7

5

4

7

4

0 Nairobi

Central

Coast

Eastern

North Eastern

Western

Nyanza

Rift Valley

(Source: EMRC Data)

For polling day, the EMRC in liaison with the ECK, accredited 156 observers, including the 117 monitors, some of the KHRC’s staff and international observers to observe three areas of focus. First, governance of the voting process including: whether voters had the freedom to participate in voting; the physical arrangement of the polling station; the autonomy, impartiality and administration of the polling process; the freedom and professionalism of the media; the presence, role and conduct of electoral, security and other public officers; and levels of voter turn out. Second, compliance with electoral procedures, including: the opening and closing times of polling centres; the polling and counting procedures; the sealing of ballot boxes, and access to the polling, counting and tallying centres. Finally, other critical issues about polling day and counting night, including but was not limited to: the manner in which voters were delayed; the order in which voters were allowed to cast their ballots; whether secrecy was observed; the use of the voter register and the ‘black book’; the length it took to cast votes; procedures to assure security of the ballot boxes; the counting and tallying of votes; whether the announcement reflected the true count and tally; the freeness and fairness of the voting process, especially for women, the physically challenged and the elderly, among other marginalised groups; and general order. 2) Events Covered The monitors attended campaign rallies, political meetings, party nominations and other events (such as road shows) organized by political parties or individual politicians. Table 1.1 below gives a summary events attended by province. ________________________________________________________ Violating the Vote: A Report of the 2007 General Elections

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Table1.1: Events Covered Province Central Coast Eastern Nairobi North Eastern Nyanza Rift Valley Western Grand Total

Rallies 27 28 13 33 11 21 23 20 176

Meetings 6 6 1 16 2 8 3 7 49

Party Nominations 8 5

Road shows 4

15 2 3 2 6 41

3 3 1 1 12

(Source: EMRC Data)

As shown, many campaign rallies were attended by the monitors. On average, each of the 88 monitors attended two rallies. The events attended related to campaigning at the civic, parliamentary or presidential levels. The monitors attended 140 civic-level events; 240 parliamentary-level events; and 47 presidential-level events. In attendance were the area councillors (seven per cent), parliamentarians (32 per cent), government ministers (35 per cent), provincial administration staff (ten per cent), senior public officers (five per cent), diplomatic officials (two per cent) and the president and vice-president (ten per cent). Figure 1.2 below categorises these events and where they took place. Figure 1.2: Nature of Events Civic

Parliamentary

Presidential

70 62

60 50

43

41

40 30

30

27

30

25 20

20

17

16 11 7

10

8

7

16

15

13

12 8

4

5

3

4

3

Western

RiftValley

Nyanza

North

Eastern

Nairobi

Eastern

Coast

Central

0

(Source: EMRC Data)

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3) Reports Received The EMRC received 387 reports from the monitors across the country, with Rift Valley sending the largest number (83), while Nairobi followed (75). Figure 1.3 provides a summary of reports from each province. Figure 1.3 Reports from Monitors by Province Central

Coast

E astern

Nairobi

North E astern

Nyanza

RiftValley

W estern

35

70

83 41

23 36 24

75

(Source: EMRC Data)

These reports were received from 70 constituencies, as shown in Table 1.2 below. Table 1.2: Reports Received by Constituency Province

Constituency Gichugu

Central

Province

13

Constituency

Total

Bura

2 3

Githunguri

2

Changamwe

Juja

4

Garsen

2

Kandara

6

Kisauni

9

Kangema

6

Lamu West

4

Kiambaa

11

Likoni

4

Kibwezi

2

Magarini

Kitui Central

2

Taveta

5

Mathira

5

Voi

2

Mwingi North

Central Total North Eastern

Total

10

Ndia

3

North Imenti

3

South Imenti

3 70

Coast

Coast Total Eastern

41 Isiolo North South Imenti

Eastern Total Nairobi

10

16 6 22

Dagoretti

7

Dujis

2

Embakasi

13

Isiolo North

3

Kamukunji

Laisamis

2

Kasarani

22

Mandera West

5

Langata

4

North Horr

9

Makadara

8

Wajir East

2

Starehe

7

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Wajir South North Eastern Total

Nyanza

9 75

3

Ainamoi

Kisumu Town East Kisumu Town West

5

Eldoret North

10

6

Eldoret South

8

Kitutu Chache

1

Migori

4

Nyando

Kapenguria

2

11

Konoin

1

3

Laikipia East

3

Nyaribari Chache

1

Marakwet East

9

Rarieda

5

Marakwet West

9

Rongo

1

Molo

1

7

Mt Elgon

6

36

Naivasha

2

Nakuru Town

1

South Mugirango Butere

Western Total

Westlands Nairobi Total

Alego Usonga

Nyanza Total

Western

2 24

Rift Valley

2

Cherang'any

1

Narok South

Funyula

6

Ol' kalau

13

Ikolomani

6

Subukia

6

Kimilili

4

Lurambi

5

Mumias

2

Sabatia

9

Rift Valley Total

GRAND TOTAL

1

83

387

35

(Source: EMRC Data)

4) Rights guaranteeing Free and Fair Elections Three critical civil and political rights must be guaranteed for electoral outcomes to qualify, at a basic level, to be genuinely reflective of the people’s will. 11 These are the: right to campaign to fill an elective public office; right to elect representatives, at regular intervals, by secret ballot and with effective choice between candidates and parties; and right to vote directly. However, the enjoyment of these three rights alone is not sufficient to guarantee high quality participation in the electoral process and thus high quality electoral outcomes. In addition, an individual voter should not face any unreasonable constraints that may adversely affect her or his freedom to act autonomously while participating in an election. Further, respect for each individual’s dignity and worth with reference to other individuals, and subsequently, the value of his or her own vote is required, based on the constitutional principle that all citizens are equal. Thus, if these fundamental elements of liberal democracy are to have a useful influence on representation, there is a range of inter-related and interdependent political and procedural rights for each eligible voter which must be respected, protected and promoted by the state and all other actors in the

11

See Beetham, David. “Freedom as a Foundation,” Journal of Democracy, 15 (4), 2004.

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electoral process. The most obvious of these, respect for which provides an enabling environment for free and fair 12 elections, are the: 1. Right to integrity and security of person: citizens’ personal safety and security, or their right to be free from physical violence, fear and intimidation, must be guaranteed; 2. Right to free expression or to freely impart and receive information must be upheld; 3. Right of the independent press to operate freely: the media must be able to research, document and report responsibly on any aspect of the electoral process from the viewpoint of their choosing; 4. Right to access information: citizens must be able to learn about any aspect of the electoral process and must not be restricted from monitoring the same; 5. Right to freedom of assembly: there should be no restrictions against public meetings, processions, rallies and other types of peaceful gatherings; 6. Right to freedom of association: individuals and groups should be able to form and join any kind of political party participating in the electoral process; 7. Right to freedom of movement: individuals and groups must be able to move unrestrained around any part of a country to build support for their political platforms; 8. Right to judicial petition: where election outcomes are disputed, there must be an independent, predictable judicial process which reviews and rules on such disputes when and where they arise; 9. Right to due process before the law (during judicial petitions). All these rights must apply equally to everyone, be they individuals or groups, without discrimination of any kind. Further, these rights must be safeguarded at all times with vigilance, particularly during the electoral process when they assume greater significance. However, there are instances where an independent tribunal could temporarily rule to restrict these rights if there are reasonable grounds in the public interest justifying such restrictions. These rights may be subverted by “intentional” and “unintentional” structural factors, 13 which may not be direct infringements specific to any electoral process, but are outcomes of longstanding political, economic, constitutional, legal and administrative imperfections and imbalances. Dominant political actors may not take the initiative to address these structural factors and thus 12 Most rights outlined above address how “free” the electoral process is although there is an overlap with how “fair” it is. Eric Bjornlund addresses “fairness” in the electoral process as follows: “To be fair, an election must have honest balloting and counting, administered without fraud or manipulation by impartial election authorities. Political parties and individuals must have reasonable opportunities to stand for election, and there must be prompt and just resolution of election-related disputes and grievances, before and after Election Day. Fairness also requires a “level playing field”; specifically, there can be no misuse of public resources for campaigns, and all parties and candidates must have an adequate chance of communicating with the voters and winning their support, including reasonably equitable access to media.” See “Elections in a Democratizing World,” Democracy Dialogues, http://usinfo.state.gov. 13 See Beetham, ibid.

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their implications on rights, especially where these factors work to their advantage during an electoral process. Some of the factors include: • • • • • •

An electoral system or constituency boundaries that systematically advantage some parties and candidates over others; Systematic exclusions or disadvantages for particular groups of citizens in registration; Unequal access to elective public office for particular groups of citizens; Government discretion over the timing and duration of elections; Preferential use of public resources by the governing party during election campaigns; and, Lack of regulation on political financing.

The EMRC and its monitors were thus on the lookout not only for the rights enumerated above, but also for the above factors, be they “intentional” or “unintentional.” The following chapters illustrate the rights violated and how these factors led to this report’s title, Violating the Vote.

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2.0 Political Violence Electoral violence was defined as any act that causes or is likely to cause harm or threat of harm, to an individual or group of people and damage to property if the act or series of acts are intended to influence electoral outcomes. 14 The EMRC received reports ranging from deaths, attempted assassinations, displacements, disruption of political meetings or rallies, battery, arson, theft and destruction of property and the communication of threats of violence via leaflets. In the first bulletin of the EMRC, attention was paid to two issues: first, Mount Elgon and Kuresoi, which have been engulfed in violence for about a year; and second, violence that occurred during the political party nominations in November 2007. There was electoral violence throughout the pre-election period, which has greatly worsened in the post-election period. Incidences of electoral violence before the elections reported to the EMRC were 72, with Central province leading with 19 incidences. In some cases, these incidences of violence were incited by politicians, as shown in the figure below. Figure 3.1 Pre-Election Incidences of and Incitement to Violence by Province Vi ole nce Inci de nce s 20

Inci te me nt to Vi ole nce

19 17

18 16

14

14 12 10 7

8 6

4

4

4

3

5 3

1

2

3

2

3

4 1

Western

RiftValley

Nyanza

North Eastern

Nairobi

Eastern

Coast

Central

0

(Source: EMRC Data)

14

As defined by the KHRC and the CDU. See Ghasia Watch, Nairobi: CDU, 2002.

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Apart from Coast, all provinces had incidences of incitement to violence. Comparing the violence to the incitement, variations existed from province to province. While Central, Central and Rift Valley, had the highest cases of violence, the highest correlation between the number of cases and incitement to violence were in North Eastern and Nyanza provinces, where the incitement to violence accounted for about 60 percent of the violence. Further, the violence was manifested differently, through the disruption of rallies, theft and destruction of property and gender-based attacks, among others. Of the cases reported, there was one incidence of disrupting rallies, eight incidences of theft, 12 incidences of destruction to property and 14 incidences of gender-based attacks. Table 3.1 below shows the provinces in which these incidences took place. Table 3.1: Manifestations of Violence Disruption Cases of Destruction of Province of Rallies Looting Property Central 1 2 Coast Eastern 1 Nairobi 6 1 North Eastern 1 1 Nyanza 3 Rift Valley 1 3 Western 1 (blank) Grand Total 1 8 12

Attacks on Gender Identity 6 1 2

2 3

14

(Source: EMRC Data)

There were numerous cases of violence where candidates were attacked, verbally or physically, because of their gender. In all the physical attacks incidences, there was use of both crude and conventional weapons. The use of clubs/rungus accounted for 13 per cent, machetes (eight percent), spears (one per cent), stones (42 per cent), pick axe (three percent), use of firearms, especially in Rift Valley and Nyanza (13 per cent), wooden sticks (15 per cent) and whips (five per cent). Use of such weapons resulted in deaths or injuries, where seven deaths were reported, while 80 injuries (35 cases of lacerations and two cases of bullet wounds) were reported countrywide. Figure 3.2 below depicts where the deaths and injuries occurred.

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Figure 3.2: Deaths and Injuries by Province Deaths

Injured

1 1

Western RiftValley

13

2

12

Nyanza 5

North Eastern Nairobi

1

Eastern

1

24 9 5

Coast Central

11

2 0

5

10

15

20

25

30

(Source: EMRC Data)

All provinces had cases of injuries, while five provinces reported deaths, with the exception of Nyanza, North Eastern and Coast. Some of those injured were hospitalized and, where ultimately fatal, this could have meant more deaths. Beyond statistics, the subsequent paragraphs detail what transpired from November to December 2007. Cases •

On November, 3 2007 at Kerugoya town, Kirinyaga Central constituency, there was destruction of property. The then parliamentarian, Daniel Karaba, after the launch of his campaign at Kerugoya Stadium, made several stop-overs in various markets. At Kagumo market, a group of young men shouted and threw stones at the convoy to Karaba’s campaign, thereby disrupting the rally. Five vehicles were damaged. Some of the people escaped with minor injuries. Similarly, in Mukindori village, he was accosted by a group of people throwing stones and shouting. He escaped unhurt while five other vehicles were damaged.

On October 27, 2007 at Imenti South constituency, there was violent disruption of a rally organized by the ODM’s Pentagon. Crude weapons such as pangas were recovered but no suspect was arrested in connection.

On November 15, 2007, Katulani market, Kituyi district in Kitui Central constituency, supporters of Mwendwa Munyasya mobilized a group to confront PNU supporters and forced the latter to retract the message alleging that Munyasya had decided to step down for the PNU candidate, Paul Mutisya.

Police officers display crude weapons recovered from supporters of assistant minister for water, Raphael Wanjala. The weapons were recovered after Wanjala’s PNU supporters clashed with those of his rival, ODM’s Ababu Namwamba at Mukhobola area. One person

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was seriously injured while several others sustained light injuries. The weapons were confiscated by Namwamba's supporters, who handed them over to the police. The assistant minister denied any knowledge of the incident.

On December 16, 2007, Belgut parliamentarian, Charles Keter, escaped death when eight armed gangsters accosted him as he was leaving Unilever International Training Centre Hotel in the outskirts of Kericho town. Two men view Keter’s car.

On November 3, 2007, in a hotel in Mtito Andei in Kibwezi constituency, John Kimanthi Maingi and his two brothers reportedly beat Councillor Kyuma because he was not supporting Maingi although they are of the same clan.

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On November 23, 2007, in Banana Hill in Kiambaa constituency, violence broke out after a confrontation between aspirants, SM Githunguri and incumbent Njenga Karume.

On November 16, 2007 during the nominations in Westland constituency, scheduled to be at Saint Marks Catholic Church Hall, but later changed, allegedly by incumbent Fred Gumo to his offices at Brookside, off Waiyaki Way. This was done without informing the other candidates. By 8:30 am, the stations were not yet open and the exercise had not started. Gumo thus allegedly declared himself the unopposed ODM candidate at around 11:20 am. Then Amin Walji Junior, also an aspirant, allegedly came in with three vehicles, two Range Rovers and a Nissan matatu full of hired youth. The youth destroyed window panes and chased away everyone. At the Kangemi City Council Social Hall, youth attempted to act in the same way but were repulsed by the public. One of Waljis’ bodyguards allegedly drew a gun and threatened to shoot as they were being hit by stones. One vehicle was damaged. The weapons used were pangas and stones. A number of people were injured. Violence in Westlands

On November 7, 2007, during a political rally in Marani division, Kitutu Chache constituency, attended by Musalia Mudavadi (ODM), PNU supporters reportedly threw wooden sticks and stones at Mudavadi’s convoy, injuring about 15 people. The alleged perpetrator and organiser, Nicholas Bengo Mango, appeared in court on November 8, 2007.

On October 27, 2007, in Embakasi constituency, the late Dr Mugabe Were allegedly hired youth who violently disrupted a PNU rally at Soweto.

On November 19, 2007 in Kandara constituency, Alice Wahome was beaten by Maina Kamau’s alleged supporters at PNU headquarters. She was taken to hospital with serious injuries.

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On December 24, 2007, the feet of a man who was roughed up in Chebigen in Ainamoi constituency, Kericho district.

On November 16, 2007, both the PNU and the ODM nominations in Isiolo North constituency were marred by violent protests owing to irregularities in the nomination process such as the lack of electoral materials and rigging. In the ODM nomination, there was omission of some candidates’ names from the ballot papers (for example, in Wabera Ward, the names of civic aspirants, Osman Happi and Hussein G Shano were missing, thus forcing them out of the race). In one case, ten people were injured when supporters of two civic aspirants fought over allegations of rigging. This generated into a violent clash between the Turkana and Ajuran (Somali speakers). Weapons such as stones, rungus were used. Seven of the ten injured sustained serious head injuries and were taken to Isiolo District Hospital.

On October 16, 2007, during the nominations at Kibera Primary School in Langata constituency, a fight reportedly broke out between two aspiring councillors, Christopher Odhiambo and Mohammed Gore. The weapons used were umbrellas. Two people were injured. Opete Opete, Said Salimini, Mohammed Gore, Asman Ambar and Said Rasta were allegedly present.

(Source: EMRC Data)

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3.0 Violence against Women Violence and other forms of discrimination against women are acts perpetrated by men against women aimed at devaluing, demeaning and de-humanizing them and their specific identity as women so as to promote men’s dominance in electoral politics, thereby influencing electoral choices and outcomes. 15 Via SMS, texts directed at women were circulated. The content was dehumanizing and demeaning of women. Other forms of gender-based violence targeting women included rape, stripping and other forms of indecent assault, sexual harassment and various unfair restrictions aimed at alienating women from politics. These violations were carried out to intimidate women into withdrawing from political contests. Although an unprecedented number of women were nominated by political parties, the electoral outcomes have thus neither reflected women’s proportions within the population nor the role of women in leadership. Many cases of gender-based violence and other forms of gender-based discrimination, were reported to the EMRC. Two cases of sexual harassment were reported in Nairobi and also Western; two cases of stripping in Nairobi and Nyanza; and 14 cases of gender-based attacks across the country. The Box below illustrates cases of physical violence and other forms of discrimination against women such as harassment, intimidation and verbal abuse. Cases •

On October 6, 2007, Asha Hussein was violently attacked, as she returned to her home in Dandora after a political rally in Nakuru. At about 9 pm, she alighted from a public service vehicle in Dandora. Since it was late, she hired a guard to walk her home. A few metres to her home, she was surrounded by a group of young men wielding machetes and other weapons including an AK-47. The guard ran away, leaving her alone. The gang proceeded to assault her while one member pointed a gun at her, warning her against vying for the seat. The gang also insulted her, questioning her morality. They continued until she agreed to denounce her political ambitions

On October 28, 2007, at Kianyaga Town, Gichugu constituency, the DP aspirant for Kabare ward, Jeremiah Geteri allegedly warned people against electing women to power as they would do nothing apart from look for men. Referring to Martha Karua, the aspirant asked: “We elected her when she was a Mrs, now she is a Miss. How many people agree that she should now go and marry?”

On October 16, 2007, at Kibera Primary School in Langata constituency, Shaban, an aspirant, said: “Wanawake endeni mkapike” (women go and cook) and “tokeni ama tutawarape” (go away or else we shall rape you). All the women present ran away. The alleged reason for the comments was the women’s support for aspirant Opete-Opete. The aspirants allegedly present were: Opete Opete, Said Salimini, Mohammed Gore, Asman Ambar and Said Rasta.

15 See The Status of Human Rights Protection in the Electoral Process: October to November 2007, First Bulletin of the EMRC, Nairobi: KHRC, 2007.

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On November 16, 2007 at Dandora Secondary School in Embakasi constituency, Asha Ali was assaulted when a conflict arose between her supporters and those of Waititu. The aspirants allegedly present were: Waititu, Asha Ali and Muchiri.

On November 26, 2007 at Dandora Secondary School in Embakasi constituency aspirant Jecinta Mwangi was told: “People of Dandora cannot vote a woman.” Some asked her: “umepikia bwana malaya wewe ODM si ya Wakikuyu” (have you coked for your husband you harlot, ODM does not belong to the Kikuyu). She was abused, intimidated and threatened.

On November 16, 2007 in Narok North constituency, Faizah Mohammed was harassed by a police officer and barred from entering a stadium to campaign. Her identity was also questioned by those guarding the entrance to the stadium as she is a Muslim.

On November 16, 2007 in Uasin-Gishu in Eldoret South constituency, campaigners for Julius Sang reportedly said that other aspirants “are thieves and are very immoral.” Further, supporters of David Koros said to Peris Jepchumba that “they cannot be led by uncircumcised women.”

On November 16, 2007, hate speech directed at women was circulated via SMS. For example: “Why you should be in ODM! ODM women scream YAWA, yawa, YAWA, in praise of NYUNDO while men in PNU are busy telling their wives to PANUA ile kazi iendelee. Women in ODM-K are so wet that their men keep asking WAPI WHIPPER!”

(Source: EMRC Data and other sources)

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4.0 Hate Speech Campaign Hate speech was defined as categories of speech outlawed in international law and that have the potential to lead to xenophobia, intolerance and discrimination on the grounds of ethnicity or regional background among others. Two key features of hate speech were identified: first, utterances and/or publications of words, epithets, and idioms intended to cause emotional harm to, offend or marginalize certain groups. Second, being intended to incite violence against or hatred of particular groups. Hate speech was circulated through email, SMS, photos and publications. 119 incidences of hate speech were reported to the EMRC, ranging from ethnic hatred (28 per cent), discrimination (21 per cent), incitement to violence (15 per cent), attacks on gender identity (12 per cent) and use of stereotypes (24 per cent). Figure 5.1 shows the categories of hate speech and where used. Figure 5.1: Incidences and Types of Hate Campaign Attacks on Ge nde r Ide ntity

Discrimination

Ethnic Hatre d

Stre otype s

Incitement to Violence 14 12 10 8 6 4 2

Western

RiftValley

Nyanza

North Eastern

Nairobi

Eastern

Coast

Central

0

(Source: EMRC Data)

First, all types of hate speech were prevalent all over the country, the worst being ethnic hatred against other communities, followed by stereotypical expressions against other ethnic communities and also groups such as women. Second, in the Rift Valley, hate speech aimed at promoting ethnic hatred accounted for 36 per cent of the hate speech in that category nationally (it is not, therefore, surprising, that in the post-elections violence in the Rift Valley, ethnic groups that are not Kalenjin have been attacked and displaced from their homes). Third, the Coast province is the only province that did not ________________________________________________________ Violating the Vote: A Report of the 2007 General Elections

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witness cases of incitement to violence—although violence occurred, it was on a lower scale than in other provinces. Fourth, Central province has the highest number of cases of gender-based hate speech, accounting for 43 per cent of cases reported to the EMRC. The Box below show the selected texts of what was printed, emailed, SMSd, blogged or photographed and graphically altered to misrepresent certain candidates or disseminate hate speech. Although this Report does not cover the role of the media in spreading hate speech, the EMRC received reports that media houses, especially local language radio stations, were also spreading hate speech.

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Hate Speech Campaign against ODM and its Presidential Candidate

(Source: Various Sources)

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2) Hate Speech Campaign against PNU and its Presidential Candidate KIBAKI’S NEW ALBUM

“Rattlesnake Me-Chuki: his eyes... Cunning and snaky!”

GOLDENBERG RECORDS 1.INTRO -TULITOKA HAPO HAPO 00.31 2. PUMBAVU 03.43 3.KAE MWATHIE (FEATURING K-RAY2 & CY-TOTTY) 05.43 4.TUJI - ENJOY ( WITH THE CABINET PHILHARMONIC ORCHESTRA ) 03.20 “Martha Karua: the most arrogant and ugly minister in Kenya 5. MY NUMBER TWO ( WAMBUI REMIX ) 04.01 ever…she dates a Catholic priest". 6.DON GEMA NI NIE ( GUTIRE UGE ) 03.53 7.INTERLUDE - TUTAKAA HAPA HAPA 00.29 8.LEX, COOPS, BIMMAZ AND BENZ KENYA STYLE ( FEATURING CMB PREZZO ) 04.01 9.PUMBAVU ( DRIVER REMIX ) 04.01 10. NAIROBERRY II (FEATRING K SOUTH ) 04.15 11.INTERLUDE - TUTAENDELEA VILEVILE 00.21 12.MUGWIKA ATIA NDAREGA KUUMA ? 04.11 13. GITHONGO GUTHUKIA - DIS TRACK ( FEATURING K-SHORT ) 06.01 14. RAILA WAS MY FRIEND 02.55

(Source: Various Sources)

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3) SMS Messages and Leaflets a) “We, as the Gikuyu, Embu and Meru communities, possess six million votes. You want us to be ruled by an uncircumcised people [Luo people] and go back to the jobless corner? Come out in large numbers to re-elect President Mwai Kibaki so that the country is not ruled by an uncircumcised man who will make the Kikuyus wear shorts. Circulate this message to five or more members of the Gikuyu, Embu and Meru communities. Your vote is the one that will prevent us from going back to Egypt.” (Received as an SMS, and written in Kikuyu) b) “Under Kalonzo’s government, sex will be legalized and free.” (Received as an SMS, and written in Kikuyu) c) “Why you should be in ODM! ODM women scream YAWA, YAWA, YAWA, in praise of NYUNDO while men in PNU are busy telling their wives to PANUA ile kazi iendelee (spread your legs so that work may continue). Women in ODM-K are so wet that their men keep asking WAPI WHIPPER! (where is the Whipper)” (Received through SMS, written as it is, minus translations, targeted both at women as a group and also at PNU and ODM-K political parties) d) “May God protect you from all the harms of the devil, including diseases, thieves, fleas, ticks, weevils, lice, bedbugs, and especially, ODM.” (Received as an SMS, written in Kikuyu, and sent through cell-phones) e) “We as Kalenjin Community would like to inform the Kikuyu who live here at Solai (in Rift Valley) to immediately leave the farms you occupy or else we warn you that we shall attack you forcefully anytime.” (Received at EMRC as a leaflet, written in Kiswahili, and signed as “Jamii ya WaKalenjin” (Kalenjin Community) (Source: Various Sources) 4) Cases: where and when Cases

On October 18, 2007, the former Kinangop parliamentarian, Mwangi Waithaka, allegedly announced publicly that: “Raila hates Kikuyu people and when elected, he will revenge by forcing the Kikuyu to wear kaptulas (colonial-era shorts) and eat omena (a Luo delicacy).” Speaking at the same function, Matheri, chair of the Kinangop County Council allegedly claimed: “The majimbo system propounded by Raila will result in the eviction of Kikuyu people from Nyanza and Rift Valley by the Luo and Kalenjin communities, respectively.”

On November 3, 2007 at Ithare-ini market, Kirinyaga district, Gichugu constituency during a rally attended by aspirants and the provincial administration (Martha Karua, Njera Gachoki, Kiaura Marua and the Gichugu DO and OCS, the Narc-Kenya chair, Gichugu branch, alleged that if Luos took over the government, they would force everybody in the country to learn Dholuo and make it the national language.

On November 2, 2007 at Thika Municipal Stadium in Thika Town in Juja constituency, Kiruma of Muchene Comedians Troupe allegedly referred to PNU as “Pea Njuguna Ugali,” saying they were baboons. The rally was allegedly attended by ODM-K’s Kalonzo Musyoka, Dr Julia Ojiambo, Mutula Kilonzo, Samuel Phoghisio and three UNEP officials.

On November 3, 2007 at Mtito Andei in Kibwezi constituency, Julius Mutua allegedly said that Kimanthi is not married to a Kamba and so people should not vote for him. ODMK aspirants (both parliamentarians and Councillors) were present.

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On November 16, 2007, during a rally in Isiolo North constituency organized by the ODM parliamentary aspirant, Godana Jarsa allegedly castigated his ODM opponent with the words: “Nina ujumbe ya watu wa Oldonyiro na Kipsing (eneo la Wasamburu), na wamewaambia nyinyi watu wa Isiolo town kwamba iwapo mtachagua Mokku basi mjitayarishe kutoa majembe na vijiko chini ya vitanda vyenu kwa matumuizi ya kuzika watu’ (if the people of Oldonyiro elect the ODM, they should be prepared to bury people).

On November 10, 2007 at Khadija Primary School in Kisauni constituency, Hassan Ali Joha, an aspirant, allegedly said that people had elected “bunge muozo na mwizi” (a rot and a thief, referring to former parliamentarian, Mwaboza.

On November 11, 2007 at Frere Primary School in Kisauni constituency, Nyonga wa Makemba, referring to Raila Odinga, reportedly said: “Kwanza apashwe tohara” (Raila must be circumcised). At the same venue, the incumbent, Anania Mwaboza, referring to Joho said: “Dumbwasha, si mume kamili, hana elimu kiroboto na chihako cho” (he is an object without shape, is not man enough, an illiterate tick, likening him to the lower part of the body).

On November 10, 2007 at Khadija Primary School, Kisauni constituency, aspirant Maimuna Waziri allegedly said “mwaboza ameoza” (Mwaboza is rotten).

On November 5, 2007 at Tiwi playground in Kwale district, Matuga constituency, Sheikh Juma Ngao, SUPKEM chair and the co-ordinator for Shirikisho party of Kenya allegedly said that “people should not vote for uncircumcised persons,” referring to Raila Odinga.

On November 8, 2007, in Ruth Guest House, Taveta constituency, Dr Naomi Shaaban, at a KANU delegates’ meeting, allegedly told those present they should avoid Basil Criticos as he is a white man and a colonialist, adding that Criticos and Raila Odinga were enemies of Islam.

On November 26, 2007, a monitor brought in a photocopy of a cheque and a cover letter allegedly made at the PNU headquarters and being circulated in Kangemi to the effect that KES25,000,000 had been disbursed in Kisumu Rural constituency to ensure that Prof Anyang Nyong’o did not regain the seat.

On November 16, at Dandora Secondary School in Embakasi constituency, the chief campaigner of aspirant Muchiri and another aspirant allegedly insulted each other. Other aspirants present were: Waititu, Asha Ali, Muchiri.

(Source: EMRC Data)

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5.0 Bribery and Abuse of State Resources Bribery 216 incidences of bribery were reported, among the highest of the incidences that were being monitored. Figure 6.1 illustrates the level of voter bribery. Figure 6.1: Bribery Incidences by Province Province

Central

Coast

Eastern

Nairobi

North Eastern

Nyanza

Rift Valley

Western

10.6%

Incidences

23.1%

Central

50

Coast

26

Eastern

19

Nairobi

28

North Eastern

16.7%

8

Nyanza

26

Rift Valley

36

Western

23

Total

216 (Source: EMRC Data)

12.0%

12.0% 3.7%

13.0%

8.8%

(Source: EMRC Data)

These incidences of bribery can be categorized as: monetary handouts (81 per cent); vote buying (four per cent); gifts (11 per cent); and the expedient provision of public services (four per cent). The following are cases. Cases Bribery • On October 28, 2007 in Kianyaga town, Kirinyaga district, Gichugu constituency, the area councillors and aspirants (Harry Mugo and Jeremiah Gateri) allegedly gave youth and women’s groups hand outs ranging from KES50-200/person. •

On October 31, 2007, at Kamigua Youth Polytechnic in Kirinyaga District, Gichugu constituency, parliamentary aspirant Jackan Gutu allegedly gave several women’s groups from all wards and youth up to about KES100 each.

On November 3, 2007 in Ithare-ini market, Kirinyaga district, Gichugu constituency, aspirants Martha Karua, Njera Gachoki and Kiaura Marua allegedly gave women, men, youth groups and party delegates from KES100-200 each.

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On November 16, 2007 in Tinganga Town School in Kambaa constituency, aspirant Wanyanga allegedly transported voters from one polling station to another (from Tinganga to Mboi-Kamiti).

On November 7, 2007 at Mukindori town, Kirinyaga Central constituency, incumbent parliamentarian Daniel Karaba allegedly gave residents of Somo village KES100 each.

On November 19, 2007 at Murang’a town, Kiharu constituency, agents for Kembi Getura and Ngenye Kariuki allegedly gave out from KES50-200 each.

On November 15, 2007 Kitui district, Katulani market, Kitui Central constituency, supporters of PNU aspirant Paul Mutisya allegedly bribed voters.

On November 16, 2007 in Wajir South constituency, Ibrahim Rashid allegedly bribed ODM officials.

On November 6, 2007 at the home of the chair, WCC, Wajir district in Wajir East, Ali Msh’d Yalahow allegedly bribed voters and gave them gifts such as vests and umbrellas.

On November 15, 2007 at Gathanji market place in Kiaria/Kanjai ward, voters including Njeri Nderitu were allegedly each given KES5,000.

On October 16, 2007 at Kibera Primary School in Langata constituency, Said Salimini allegedly bribed youth with KES300 each.

On November 16, at Dandora Secondary School in Embakasi constituency, a parliamentary aspirant, Waititu allegedly gave voters from KES200-500.

On November 16, 2007 at Maringo, Mbotela and Jericho wards, Makadara constituency Dick Wathika and Dan Shikanda allegedly gave voters KES100 each.

On November 6, 2007, Kasarani constituency aspirant, Orie Rogo Manduli, allegedly bribed voters with KES100 each.

On November 7, 2007 at Marafa in Magarini constituency in Malindi district, at a market place, Francis Baya allegedly gave a total of KES21,000 to seven different women’s groups.

On October 31, 2007 in Likoni constituency, Suleiman Shakombo allegedly gave 67 of his supporters KES500 each at the ACK hall in Likoni, Mombasa.

On November 16, 2007 at Consolata Primary School in Likoni constituency, Mama Rebecca, a PNU aspirant, allegedly bought voters’ cards from voters during the nominations.

On November 5, 2007 in Kwale, Tiwi ward, Likoni constituency, Chirau Mwakwere allegedly ferried supporters and gave them KES1000 each during a PNU campaign. On the same day, Suleiman Shakombo allegedly ferried supporters to Mtongwe market and gave them KES1,000 each.

On November 16, 2007 at Umoja Primary School in Kipevu ward, Changamwe constituency, Peterson Mitau, an ODM aspirant, allegedly gave his supporters KES200 each.

On November 16, 2007, Kajembe Ramadhani allegedly gave his supporters in Kaloleni, Kilifi and Kwale, KES200 each.

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On November 16, 2007 in Mvita constituency, Somali workers were allegedly given from KES200-250 each at Tononoka Social Hall in Mvita. Da, a parliamentary aspirant, allegedly gave his campaigner KES2,500 to share with other women in the village.

On October 21, 2007 in Voi constituency, Naomi Shaaban, a former parliamentarian, gave Muslim women KES10,000 through Farida at Kariakoo Mosque in Voi.

On November 16, 2007 in Uasin-Gishu, Eldoret South constituency, aspirants Jepchumba Peris, Korus and Kibet Biwott allegedly gave voters KES50 each.

On November 3, 2007 at Masyungwa Primary School in Mwingi district, Josephat Musyimi allegedly gave Peter Syengo KES4,300 to distribute to his supporters.

On November 3, 2007 in Ruai, Embakasi constituency, John Kamangu a PNU aspirant allegedly gave KES100 each to about 200 women and bought some youth and women suits and shoes.

On November 27, 2007 in Soweto, Embakasi constituency, the late Dr Mugabe Were, an ODM aspirant, allegedly bought voters’ cards from women and youth.

On November 1, 2007 at Kabazi, Subukia constituency, Wachira Njuguna (KANU), in a meeting at the National Cereal Produce Board premises, allegedly gave out KES12,400 to the 50 or so participants. The meeting was co-ordinated by Kiarie Ndungu (KANU), an aspiring councillor.

On November 6, 2007 at Kabazi, Subukia constituency in the Canners’ Grounds, Waiganjo Mwangi, Hilda Kimatta and Mwangi Waithaka allegedly gave Hannah Wanjira Gichuki KES5,000 on behalf of the group (casual workers). Waiganjo allegedly gave KES3,000, Kimatta allegedly gave KES1,000 and Waithaka allegedly gave KES1,000.

On November 16, 2007 at in Kieni polling station, Kieni constituency, former parliamentarian, Chris Murungaru, and outgoing councillors, Mwangi Kibuu and Wanyaga Gathaka, allegedly gave voters money during the nominations. In Kangaita village in Tetu constituency, an aspirant, F T Nyammo allegedly gave voters between KES1001000.

On November 11, 2007 at Makutano Kilimambogo township, Juja constituency, former parliamentarian, W Kabogo, accompanied by the Juja Constituency Development Committee chair, Sammy Onyango, allegedly brought in water drilling equipment for the Kilimambogo water project.

On November 16, 2007 at Kirigu Primary School in Dagoretti constituency, John Mwaura Muiruri, an aspiring councillor allegedly gave young men KRD100 each so as to interfere with the nominations. The young men who were paid disrupted the meeting, destroying property and stealing. Older women were also allegedly given from KES50-100.

Abuse of State Resources

Reports indicated the misappropriation of publicly-owned resources and the also presence of public officers at campaign events. There were 30 incidences of public officials being present at campaign rallies, with ten incidences in Eastern province. In addition, government-plated vehicles were present (64 cases), 29 of which were in Eastern province and 18 in Western; and

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government helicopters were used (six incidences), half of which were in Eastern province. From Figure 6.2 below, it is evident that, in all provinces, public resources were utilized for campaigns. In all provinces, save for North Eastern, governmentplated vehicles were used, either by politicians or public officers, including parastatal heads and the Provincial Administration. Publicly-owned helicopters were used in three provinces, Eastern, North Eastern and the Rift Valley. In all provinces, except Central and Nyanza, public officers attended campaign events, contrary to the Public Officer and Ethics Act and the National Assembly and Presidential Elections Act. The cases are documented below. Figure 6.2: Incidences of Abuse of State Resources 100%

80%

60%

Govt. He li copte rs

40%

Govt. Ve hi cle s Publi c Offi ce rs

20%

Ny an za Ri ft Va lle y W es ter n

Co as t Ea ste rn Na iro No bi rth Ea ste rn

Ce nt ra l

0%

(Source: EMRC Data) Real Cases Abuse of State Resources •

On November 4, 2007 at a place of worship in Kirinyaga district, Gichugu constituency, aspirant Martha Karua allegedly used vehicle number GKA 435 H (Landcruiser) during her campaign.

On November 4, 2007 at a place of worship in Kirinyaga district, Gichugu constituency, aspirant Martha Karua allegedly used the local language radio station, Inooro FM, to conduct roadshows all over Gichugu’s major towns and market places in support of PNU’s election.

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On November 3, 2007 at Ithare-ini market, Kirinyaga district, Gichugu constituency, aspirants and the provincial administration (Martha Karua, Njera Gachoki, Kiaura Marua and the Gichugu DO and OCS) allegedly used government vehicle number GKA 435 H (Landcruiser) to campaign for PNU. After the rally, several unidentified men, wearing NARC-K caps hung on to the vehicle as it escorted Karua.

On October 27, 2007 at Raimu Primary School, Kianyaga town, with respect to accessing a free medical camp organized by aspirant Martha Karua, those perceived to be anti-NARC-K were allegedly discriminated against. Pro-NARC-K persons were allegedly favoured and allowed to pass over the queues.

On December 14, 2007 there was misuse of government vehicles at Kamungei Primary School in Sotik district where former president Daniel arap Moi was campaigning for the reelection of the incumbent president, Mwai Kibaki.

On November 6, 2007, in Wajir East constituency, public officials such as Mohammed Galore and Ibrahim Hussein participated in PNU campaigns.

On October 27, 2007 at Raimu Primary School, Kianyaga town in Gichugu constituency, Martha Karua allegedly held a luncheon near Kianyaga High School Hall although the Kenya National Examinations council had warned against organizing any political events near or in the school facilities.

On November 16, 2007 at Ndumberi town, Ndumberi Polytechnic, Kiambaa constituency, aspirant Njenga Karume allegedly appointed all civic leaders in Kiambaa and thus denied others a chance to vote for candidates of their choice.

On November 2, 2007 at Thika Municipal Stadium in Thika town, Juja constituency, three UNEP officials allegedly attended a campaign rally organized by ODM-K in a UN motor vehicle, Mercedes Benz Saloon, registration number UNEP 83K. Kalonzo Musyoka, Dr Julia Ojiambo, Mutula Kilonzo and Samuel Phoghisio were allegedly present.

During a rally in Kasarani constituency, aspirants led by Maina Kamanda, Kamau Ruhangi, Beth Mugo, Joseph Gachina and Waihenya Ndirangu allegedly used a government vehicle, GK 710G.

On November 3, 2007, during a public rally in Tana River district, Garsen constituency, allegedly attended by Chief Abdallah Bakelo and DO Wanyoike, the following vehicles were used: GK A378L Land Rover and GK 1085B Landcruiser.

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•

On October 19 and 20, Koigi wa Wamwere allegedly used GK A600H at Maili Kumi in ubukia constituency, where he was receiving councillors defecting to CCM and meeting the people.

(Source: EMRC Data)

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6.0 Laws breached with Impunity The legal and administrative framework governing elections in Kenya has registered gains within the period of the four multiparty General Elections, especially following the parliamentary negotiations of 1997 under the ad hoc IPP). Key laws that governing or relating to elections include: the Constitution of Kenya; The National Assembly and Presidential Elections Act; the Election Offences Act; Public Officer Ethics Act; the Local Government Act; the Societies Act; the Penal Code; the Anti-Corruption and Economic Crimes Act; the Public Order Act; and, the Preservation of Public Security Act, as amended. Other relevant Acts include: the KNCHR Act, which establishes the KNCHR and gives its powers to conduct independent investigations into human rights violations; and the KBC, which provides that the national public broadcaster must give balanced coverage to all aspirants and political parties. While these laws exist, most were breached with impunity. Kenya illustrates non-constitutionalism. The definition of constitutionalism is controversial but for the purposes of this Report, constitutionalism revolves around human rights and limitations on the powers of government. These two, further, rely on the rule of law, separation of powers, periodic elections and judicial independence among others. 16 Rule of law is critical with regard to impunity, since behind it is the notion that all people are equal before the law and, if they breach it, the law shall takes its course fairly and justly. In the 2007 General Elections, many broke many laws, including the Constitution, and have been allowed to go scot free with impunity. For example, the electoral violence documented in Chapter 3, could and should have been dealt with since the criminal acts perpetrated are prohibited. Violence against women, including sexual violence, and all forms of discrimination are prohibited. Section 82 the Constitution outlaws discrimination of any nature, including on the basis of sex. And sexual violence is outlawed in the Sexual Offences Act. With regard to abuse of office, Chapter 6 illustrated that public servants engaged in campaigning for the incumbent political party and abused public resources, contrary to the Public Officers Ethics Act as well as the National Assembly and Presidential Elections Act. In terms of hate speech, there are clear laws to address the same although Kenya does not have a law specific to hate speech. Yet impunity thrived—a recurrent problem during election periods, when Kenya seems to suspend laws or provide ‘collective impunity’ for breaches of the same. Connected with impunity is passing the buck. The ECK passed the buck to the Kenya Police Force, the Kenya Police Force gave a counter-argument to the ECK. The Attorney General, as head of public prosecution, passed the buck to the Kenya Police Force to furnish evidence to enable prosecution. The KACC was also caught napping and yet many Kenyans criticize the KNCHR for being partisan when it speaks on gross human rights violations and the buck is 16

See Julius Ihonvbere, Towards a New Constitutionalism for Africa, Centre for Democracy and Development, 2000

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passed to Ministry of Justice and Constitutional Affairs. In this, impunity reigned as no one public institution took responsibility for prosecuting those who were liable. The following section highlights some of the laws or regulations governing elections to illustrate how they were breach with impunity. 1) The Constitution of Kenya Part V of the Constitution, Kenya’s supreme law, provides for the protection of fundamental freedoms and individual rights, including those discussed in Chapter 2. Before, during and after the elections, these rights have been violated with impunity. The right to security, life, livelihoods, housing, water, food and others were sacrificed at the altar of political expediency with a government and a populace that failed to respect, protect and promote those rights. The Constitution also establishes the ECK, with a mandate to ensure elections are free and fair, among other key responsibilities. 2) The Penal Code Acts that are of a criminal nature, such as instigating violence or participating in violent acts are prohibited under the Penal Code. Section 66(1) commits one to two years imprisonment when an untrue statement which causes alarm and despondency among the public is made. Section 94 and 95, on conduct likely to cause a breach of the peace, commits one to six months imprisonment if the utterances, expressions or conduct are disparaging to the president. Section 96 outlaws verbal utterances or the printing of materials that could cause acts of violence to erupt. It reads: “a) Any person who, without lawful excuse, utters, prints or publishes any words or does any act or thing indicating or implying that it is not, or might be desirable to do or omit to do, any act, the doing or omitting which is calculated, to bring death or physical injury to any person or to any class, community or body of persons; b) to lead to the damage or destruction of any property; c) to prevent or defeat by violence or by other unlawful means the execution or enforcement of any written law or to lead to defiance or disobedience of any such law or to any lawful authority, is guilty of an offence and is liable to imprisonment for a term not exceeding three years.” The Penal Code also prohibits bribery and other corrupt activities, complemented by the creation of the KACC through the Anti-Corruption and Economic Crimes Act. 3) The Election Offences Act To complement the Penal Code, this law provides for the orderly running of elections by prohibiting offences which compromise the people’s will. Candidates are prohibited from bribing and/or influencing voters with handouts, or any other means, to obtain votes from the electorate. Under Section 10, prohibited offences include: to sell, offer for sale, or buy, or offer to buy a ballot paper or voter’s card, to bribe a voter with money or anything else ________________________________________________________ Violating the Vote: A Report of the 2007 General Elections

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of value in order to influence his or her decision to vote. The object of this provision is to ensure the right to vote is not compromised. As illustrated in Chapter 6, all these offences took place with impunity. With regard to violence, Section 9 provides that every person shall be guilty of the offence of undue influence who directly or indirectly, by himself or by any other person on his behalf, makes use of or threatens any force, violence or restraint, or any temporal or spiritual injury, damage or loss, or any fraudulent device, trick or deception, for the purpose of or on account of: “(a) inducing or compelling a person to give or refrain from giving his vote, whether to a particular candidate or not, at an election; (b) otherwise impeding or preventing the free exercise of the franchise of an elector or voter; (c) inducing or compelling a person to refrain from becoming a candidate or to withdraw if he has become a candidate; (d) impeding or preventing a person from being nominated as a candidate for an election or from being registered as a voter.” With regard to hate speech, Section 11 is perhaps the best legal ammunition. It outlaws the printing, publication, distribution of materials such as handbills, placards or posters, including advertisements, which refer to any election and which do not bear the names and addresses of its printer and publisher. It also prohibits the publication or distribution of materials or any false statement in relation to any candidate’s personal character or conduct. Chapter 5 of this Report shows this law was breached. Further, the ECC forms part of the law governing elections to ensure that they are free and fair, promote a climate of tolerance where political activities are carried out, including campaigns, without fear of intimidation, coercion or reprisals. The ECC binds political parties and candidates duly nominated by political parties participating in the elections. With regard to violence, Paragraph 5(c) calls upon all political parties and candidates to “condemn, avoid and take steps to prevent violence and intimidation”. Section 6 of the same prohibits the use of public office to influence political and electoral outcomes. Again, none of these prohibitions was brought to bear. 4) The Public Order Act and the Preservation of Public Security Act To complement the Penal Code are two other laws: the Public Order Act and the Public Security Act. The Public Order Act was amended in 1997 to facilitate the holding of campaigns by political parties and candidates by outlawing the need for licenses and other permits to hold public meetings. Prior to that amendment, political parties and candidates were required to obtain permits from the Kenya Police Force, approved by the DC, as head of the district security committee. 17 Following the amendment, those campaigning need only 17 Under KANU, the opposition was unable to obtain these permits. They held their rallies nonetheless, leaving the Kenya Police Force with the option of stopping them using violent means such as beatings, tear-gassing, arresting opposition members and their supporters and arraigning them in court for holding illegal meetings. As it existed before, the Public Order Act breached the freedom of assembly provided for in the Constitution of Kenya.

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notify the OCPS with jurisdiction where the public meeting will be held. The notification must be given not less than three days and not more than fourteen days before the holding of the public meeting. The OCPS can refuse to grant permission for or disperse the meeting if a breach of the law results from the meeting. While there was general observance of this law in the 2007 General Elections, breaches also occurred, especially post-elections. The Preservation of Public Security Act provides that no person shall be restricted on account of his political beliefs or activities, complementing the Public Order Act and reiterating the fundamental freedoms and rights provided for in the Constitution of Kenya. 5) The Public Officer Ethics Act This law governs the conduct of public officers and prohibits them from showing bias during the electoral process. Section 15 calls upon all public officers who have been given custody of public resources to ensure they do not misuse or misappropriate the same resources. But Chapter 6 illustrates that the Provincial Administration and public institutions, including parastatals, misused public resources in PNU campaigns. Section 16 prohibits public servants from political activities, such as campaigns, which compromise the neutrality of their offices. However, senior public servants were directly engaged in campaigns for the incumbent PNU. The banning of public servants from participating directly in politics is further provided for within the National Assembly and Presidential Elections Act. Section 17 of this Act bars them from publicly supporting or opposing any of the political parties participating in an election and, if they do so, they are liable to pay a fine of not more than KES50,000 and/or imprisonment for six months. Enforcement Framework From the above, that lack of enforcement appears as a major cause of impunity. This section highlights the role of three public institutions, which are meant to ensure that when the above laws are broken, there is prosecution of those who breach them. 1) The Role of the ECK: failing to fully exercise its mandate The ECK is not felt in terms of prosecution. However, it is supposed to be guided by the ECC when addressing offences, including those related to violence, committed by political parties and candidates. To ensure compliance, the ECK should apply to the High Court, but the former is primarily responsible. The ECK is empowered to issue a formal warning, impose a fine, ban political parties or candidates temporarily or permanently from participating in elections, including printing and distributing campaign materials. Those who face these penalties have the right to go to court and seek redress. This applies where the aggrieved party maintains that the proceedings of the ECK ad hoc tribunal were unfairly held or oppressive. The ECK needs to apply to court to ensure these penalties are imposed. In the pre-election period, the ECK summoned several candidates and political parties and imposed fines on them for engaging or instigating violent acts. But it did not pursue fully ________________________________________________________ Violating the Vote: A Report of the 2007 General Elections

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offences relating to hate speech provided for in Section 11 of the Election Offences Act. 2) The Kenya Police Force: maintaining law and order? The Kenyan Police Force is established through the Police Act. The raison d’ être for its existence is to enforce laws, maintain peace and ensure the fundamental freedoms and individual rights are protected. It should act without fear of favour and Section 14 of the Police Act prohibits any police officer from acting in a manner likely to show political affiliation. However, the Kenya Police Force is a ‘regime police’ which tends to favour the incumbent. In the Kenya Police Force’s Strategic Plan, there is an admission that the force “has in the past practiced regime policing focusing substantial institutional energy on sustaining the power of the ruling party.” 18 The KHRC similarly contends, given the Kenya Police Force’s origins and purposes under colonial rule: “at its birth therefore, Kenya’s police force carried the marks of a punitive and citizen-containment squad, rather than a service-oriented force.” 19 Further, over the years, the Kenya Police Force has had the reputation of being the most corrupt public institution as well as the worst public violator of human rights. As recently as last year, the media reported incidents where the Kenya Police Force violated Kenyans’ human rights. Both public institutions and NGOs continue to receive complaints of police harassment. 20 It has been argued that it is difficult for the Kenya Police Force to maintain law and order using rule of just law, rather than corrupt, ‘regime policing’ corruption for three reasons. First, there are administrative problems. The Kenya Police Force is understaffed, poorly equipped and subject to poor work conditions. The labour and other human rights of police officers are known but recommendations for reform, including through establishment of a Police Service Commission, have fallen on deaf ears. Second, most police officers that commit offences or violate human rights go largely unpunished by the Kenya Police Force as well as by the judicial system—because the Kenya Police Force itself has to arrest the person who has committing the crime or human rights violation, carry out investigations, and prosecute. 21 There are no internal or external checks and balances or controls. Third, several Kenyan laws are in place which grant the police broad powers. 22 For example, powers given to the Administration Police include the ability to enter premises and stop vehicles without warrant, stop and detain any person for production of licenses, take custody of unclaimed property, arrest persons without warrant and use of firearms. Such powers, unfettered, obviously lead to human rights violations, including the rights to life and personal liberty. Oversight mechanisms are required to ensure the Kenya Police Force adheres to the law and are seen to be The Kenya Police Strategic Plan (2004-2008), Nairobi: GOK. Mission to Repress: torture, illegal detentions and extrajudicial killings by the Kenyan Police, Nairobi: KHRC, 1998. 20 Organizations such as the KNCHR, the IMLU and RPP have been brought these complaints. See Biannual Human Rights Report: January–June 2006, Nairobi: KHRC, 2006. 21 The power to prosecute is delegated from the Attorney General/State Law Office, where any police officer at or above the rank of inspector may prosecute for and on behalf of the Office. 22 For instance, the Suppression of Terrorism Bill of 2003 lowers the standard of burden of proof in criminal cases, grants power to the police to detain cash and forfeit the property of suspects and sanctions torture and police brutality. 18 19

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fair and non-partisan in the execution of their mandate of maintaining law and order. In several pre-election reports authored by several organizations, 23 the role of the Kenya Police Force has been scrutinised. Most recommended that it provide security and carry out prompt, independent and impartial investigations into each and every case of electoral violence. However, such recommendations fail to take into account the above limitations. 3) The Attorney General Powers of this public office are provided for in Section 26 of the Constitution of Kenya. The Attorney General is appointed vide Section 109 and Section 26 gives the office powers exercised without the direction of any authority including: being the principal legal adviser to the Government; to institute and undertake criminal proceedings against any person before any court (other than a court-martial) in respect of any alleged offence; to take over and continue any such criminal proceedings that have been instituted or undertaken by another person or authority; and to discontinue at any stage before judgment is delivered on any such criminal proceedings instituted by the office or any other authority (referred to as nolle prosequi). 24 The Section also provides that the Attorney-General can order the Commissioner of Police to investigate any matter which relates to any offence, who shall report to the Attorney-General upon concluding the investigation. Thus, the Attorney General is able to not only prosecute what the Kenya Police Force brings forth, but also order investigations to given offences. With regard to violence, preelection reports indicate complicity on the part of the Attorney General, for failure to use powers bequeathed, passing the buck to the Kenya Police Force. Hate speech, abuse of public resources and violence against women were also undertaken with impunity, with silence on the part of the Attorney General.

23 These include: Elections and Human Rights Bulletin No. 1, November 2007, Nairobi: KHRC; State of Kenya Elections 2007 Report December 2007, Nairobi: CRECO; and Still Behaving Badly: second periodic report of the Elections Monitoring Project December 2007, Nairobi: KNCHR. 24 Many NGOs have criticized these powers, which have seen the office terminating cases for reasons other than the public interest. Cases involving Kenya’s economic and political elite, for example, have been terminated.

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7.0 Election Day and the Aftermath Once the President, through his constitutional powers, dissolved parliament and the ECK announced the date of the elections as Thursday December 27, 2007, the electoral process peaked. It included: the validation of voter registration by the electorate; chaotic political party nominations; nominations of new Commissioners to the ECK; and the ‘official campaigning period’ that ended on Monday December 24, 2007. Kenyans geared up for the most contested elections in Kenya’s history. As seen in previous Chapters, there were incidences that violated democratic and human rights: intimidation and violence; the use of hate speech; discrimination against female candidates and gender-based violence; and the abuse of public resources. Many NGOs released statements, cautioning that human rights violations had occurred prior the elections that could jeopardize the right to vote and compromise electoral outcomes. The first Bulletin 25 released by the KHRC’s EMRC, in November 2007, noted these human rights violations and preelectoral malpractices could jeopardise the freeness and fairness of the 2007 General Elections if there were not addressed. As Kenyans prepared for polling day, little was done to do so by relevant public institutions. Chapter 7 demonstrated that several laws were broken with impunity. Other NGOs, under the CRECO, pointed out similar issues, calling for adherence to the law, before polling day. 26 And the KNCHR released two reports in December 2007, stating that politicians and public servants were “still behaving badly,” 27 noting with concern the violence, hate speech, discrimination against women and abuse of public resources. Relative to the abuse and misuse of public resources, the CAPF, a coalition of 36 NGOs, pointed out that the cost of abusing and misusing public resources by the PNU was KES139 million by December 17, 2007. CAPF also questioned the sources of the sums ODM (KES501 million) and PNU (KES642 million) were using for their presidential campaigns. CAPF concluded that only 40 per cent of such funds had been raised legally through fundraising, while the remaining 60 per cent had been raised through institutional corruption, from arm dealers, pyramid schemes, oil companies and other such companies, not all legal and, in all cases, corrupting would be Presidents. 28 A day before polling day, on December 26, 2007, the KHRC noted seven concerns which could jeopardize the freeness and fairness of the 2007 General Elections. First, the right to the security of the voter had not been guaranteed, especially in conflict areas, which could lead to lower voter turnout and influence the outcomes of the elections both in those areas and nationally. Second, the right to campaign, particularly for women, had been compromised, violating the candidates’ right to be elected, which could have an impact of the 25 See The Status of Human Rights Protection in the Electoral Process: October to November 2007, Elections and Human Rights Bulletin No. 1, November 2007, Nairobi: KHRC. 26 See State of the Nation, Issue 1 and 2, released in December 2007, Nairobi: CRECO. 27 See Still Behaving Badly: Second Periodic Report, December 2007, Nairobi: KNCHR. 28 CAPF, Interim Report on Presidential Campaign Expenditure, released on 17th December 2007.

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ratio between men and women in political office at all levels. Third, the right to freedom of expression had been abused, with hate speech compromising the choices Kenyans would make. Fourth, the right to freedom of assembly had been violated, which could affect voting patterns. Fifth, the misuse of public resources and the expedient allocation of districts and other public goods had compromised the right to vote. Sixth, voter bribery through financial inducements continued unabated, compromising peoples’ choices. Finally, the KHRC singled out persistent allegations of rigging the elections in favour of the incumbent political party, which could comprise electoral outcomes and therefore, the inalienable right of Kenyans to decide their own destiny. Therefore, although Kenyans turned out in unprecedented numbers to polling centres to cast their votes on polling day, issues had already been raised as human rights violations and violations of the electoral framework, legal and/or administrative. The KHRC urged Kenyans to “be vigilant to ensure that the elections are free and fair and not compromised by electoral malpractices at the polling stations, particularly late in the day” and to “vote in candidates committed to human rights and good governance.” Finally, the KHRC urged all contestants to “respect the verdict of the people” and stated that “any contestation of the elections’ results should be done through legally-established procedures.” The KHRC stated that any “attempt to resort to violence should be roundly condemned by the electorate.” 29 Election Day: the KHRC’s initial verdict On polling day, the KHRC had 156 election observers who visited polling centres countrywide. Reports returned to the EMRC indicate that administrative procedures with respect to the opening and closing of polling centres, voter turnout and their conduct, the management of the process by the ECK, the provision of security by the Kenya Police Force were generally respected and upheld. However, there were administrative and logistical problems in some polling centres in some constituencies. At the EMRC, reports were received from the KHRC’s staff who observed in Nairobi province and from monitors outside of Nairobi province. Many polling centres opened late, while in Makadara constituency, the ballot papers were missing the names of some candidates. In some constituencies, such as Naivasha, voting materials intended for Eldoret North had been mistakenly supplied. There was unprecedented voter turnout, with long queues forming as early as 6 am, resulted in frustration due to delays and the lack of professionalism and speed of polling clerks. There was no uniformity among ECK staff—in some polling centres, voters were given all three ballots at once, but in others, they received them one ballot at a time. In most polling centres, there was confusion about where to queue since the queues were not well marked or not demarcated (according to surname) in the most efficient way to ensure the 29

KHRC, Press Release, 26th December 2007.

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queues were more or less equal. This happened in Kikuyu constituency, where names beginning with ‘M’, ‘N’ and ‘W’ had long queues, since Kikuyu constituency is predominantly Gikuyu. Similarly, in Kibera and Lang’ata constituencies, the same was noted for the ‘O’ and ‘A’ queues, given that they are predominantly Luo. In addition, ECK staff were not conspicuous, and people had difficulties identifying them. The EMRC also received reports about intimidation of voters in the strongholds of various political parties and in conflict areas such as in Kuresoi and Mount Elgon. In Nairobi, the KHRC visited Olympic Primary School, a polling centre in Lang’ata constituency where voters perceived to be anti-ODM were threatened against voting. While polling day was relatively peaceful, there were pockets of violence in some polling centres. And, as anxiety for the announcement of polling centre results built, acts of intimidation and violence were reported in almost all polling centres in Nairobi as well as some polling centres outside the province. The KHRC thus made a preliminary assessment 30 of the 2007 General Elections are follows: 1. The Electorate: the KHRC congratulated Kenyans for turning out in unprecedented numbers to cast their votes. Most Kenyans were determined and patient in braving delays in the opening of the polling centres as well as the counting, tallying and announcement of results. Over 65 per cent of Kenyans voted—in some areas, up to 80 per cent. Most Kenyans were also vigilant, attentive to detail yet cooperative with all actors in the electoral process to ensure that polling day was peaceful, free and fair. However, the KHRC expressed concern about allegations of electoral malpractices and illegalities aimed at subverting the will of the electorate. The KHRC demanded that the ECK investigate the strongholds of the two major political parties, ODM and PNU, where over 90 per cent turnout was registered, before any official announcement of results was made. This demand fell on deaf ears as the ECK chair proceeded to announce results anyway. 2. Violence: the KHRC observed that in constituencies such as Garsen, Kamukunji, 31 Starehe, Rongo and Kajiado North among others, some Kenyans, candidates or their agents, prevented ECK staff from fulfilling their constitutional and legal mandates. Incidents of death and injuries arising from violence, intimidation and use of hate speech were reported in these constituencies. In other constituencies, such as Kitutu Chache, Lang’ata, Webuye and Westlands, the EMRC received reports of intimidation, where voters, party agents and supporters of candidates intimidated other voters and ECK staff. The KHRC also noted with concern the intimidation of ECK Commissioners at the KICC–the national tallying centre. The KHRC recommended that the ECK be allowed to work, without fear or favour, to discharge its mandate. As violence began across the 30 31

General Elections 2007: a preliminary assessment, released on December 30, 2007, Nairobi: KHRC. The results from Kamkunji Constituency were cancelled and a by-election is expected by mid-June 2008.

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country, the KHRC condemned the violence and recommended that investigations be instituted with a view to arraigning those involved in courts of law. 3. Voter Bribery: acts of bribery of voters by candidates were reported to the EMRC in Gatanga, Ikolomani, Kibwezi and Westlands constituencies. The KHRC condemned these acts, urged the ECK, the KACC and the Kenya Police Force to investigate and urged the same public institutions to proactively investigate this malpractice in other constituencies. 4. The Kenya Police Force: the KHRC appreciated the role of the Kenya Police Force, which was reported to have acted professionally in its duty to protect the right to security of voters, candidates, party agents and ECK staff. The KHRC empathized with the families of members of the Kenya Police Force and the Administration Police who lost police officers in constituencies such as Rongo. However, reports filed to the EMRC indicated that in some constituencies, such as Kamkunji, the Kenya Police Force used excessive force in dealing with people suspected of breaking the law. The KHRC was also concerned that, in other constituencies, the Force did not safeguard the integrity of the process. While appreciating the difficulties of dealing with crowds and those hired to disrupt the electoral process, the KHRC urged the Kenya Police Force to respect human rights of all persons who are to be assumed innocent until proven guilty in a court of law. The KHRC thus recommended the Police Commissioner investigates violent acts committed against police officers as well as those committed by police officers against Kenyans. The KHRC reiterated its longstanding appeal for the establishment of a Civilian Oversight Body 32 to hold police operations accountable to the public. 5. The ECK: the KHRC appreciated the role played by the ECK in ensuring a peaceful polling day December 27, 2007. For reports reaching the EMRC indicated that general appreciation of the ECK’s professionalism on polling day. However, the KHRC took issue with reports of irregularities, malpractices and illegalities prevalent that day and following. These included: a) delays in opening some of the polling centres; b) unusual delays in vote counting, tallying and announcing results; c) the late arrival of materials in some polling centres; d) sending incorrect ballot papers to some constituencies, such as Naivasha; and e) elements of unprofessionalism among ECK staff. 6. Electoral Malpractices and Results: the KHRC was concerned that some ECK staff were allegedly complicit in electoral irregularities, malpractices and illegalities. The KHRC condemned this lack of integrity and urged that all such ECK staff be held to account. The KHRC also took issue with the unusual delays in announcing results, particularly at the 32

See Sessional Paper on the Creation of a Civilian Oversight Body, July 2007, Nairobi: KHRC.

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presidential level. The KHRC was concerned that these delays triggered the acts of violence in some cities and towns countrywide. Further, the KHRC demanded that the alleged anomalies between results announced at the constituency level and those announced by the ECK Commissioners be explained. Finally, the KHRC was concerned about allegations of results being submitted to ECK without the requisite documents, duly signed off, and thus recommended that the ECK follow the law, including legal procedures by nullifying all such results. 33 7. Political Parties and Politicians: the KHRC urged political parties, their agents and supporters to respect the electoral process. The KHRC condemned the violence that had begun and urged Kenyans to defeat any resort to violence that candidates, party supporters and some members of the public were inciting. The KHRC appealed to the parliamentarians Mwai Kibaki and Raila Odinga, in their capacities as leaders of the PNU and the ODM respectively, to assure the public that each would accept the results of the election if deemed free and fair. 34 The KHRC urged any dispute arising be settled within the courts and urged the Chief Justice to expeditiously address any such the petition. The above was the verdict of the KHRC relative to polling day and its immediate aftermath. But what transpired around the announcement of the supposed presidential elections was worrisome not just for the KHRC’s EMRC, but for the whole country. The unprecedented delays in the announcement of the supposed presidential results had led to an anxious nation, already witnessing violence by December 29, 2007. The KICC was filled with tense presidential agents, political parties and media, as well as and puzzled NGOs. At one point, all present were forced to leave by teargas, leaving the ECK Chair to announce the supposed presidential results under tight security, followed by an immediate and unceremonious swearing-in ceremony for the PNU presidential candidate, Mwai Kibaki, at State House. “The hasty inauguration, the blanket banning on the broadcast media, the dispersal of security forces to deal with expected protests…What was not expected was the speed with which the whole thing would unravel.” 35 The Senate of the United State of America, summarized what transpired thus: “whereas election observers reported serious irregularities and a lack of transparency that, combined with the plausibility of the margin of victory, and the swearing in of the Party of National Unity presidential candidate Mwai Kibaki with undue haste, all serve to undermine the credibility of the

33 Proverbially, this is what broke the camel’s back in the presidential balloting. In 2008, those arguments vindicate the KHRC since, from the violence witnessed in the post-elections period, most of it was triggered by those results. The quote from KPTJ, which opens this Chapter, illustrates the depth of the problem. 34 As the KHRC released this Preliminary Statement, Raila Odinga was on live television stating the same. KHRC had recommended that any dispute be settled in a court of law, and requested the expeditious settlement of the same. 35 See Manji, Firoze, It is Kenyan People who lost the Election, Pambazuka News, Issue 334, Oxford: Fahamu.

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presidential elections results.” It also noted that no less than the ECK chair proceeded to state that “he did not know who won the elections.” 36 These views were reiterated by other international observer groups, including the EUOM and the COG. The EUOM noted there were “serious inconsistencies and anomalies” 37 in the announcement of the presidential results at KICC. The COG noted “the delay in declaring results resulted in Kenyans experiencing significant concerns about the validity of the results.” 38 Locally, an ad hoc coalition of citizens as well as Kenya’s governance, human rights and legal organisations called Kenyans for Peace with Truth and Justice (KPTJ) formed to address both the elections and the violence. 39 Based on the election results released by the ECK, the KPTJ did analysis that noted four key concerns: inordinately large variances between parliamentary and presidential ballots compared to those which pertained in the 2002 General Elections; additional, suspicious votes within the ODM and PNU strongholds sufficient to alter the supposed outcomes; a pattern of irregularities consistent with allegations of rigging in favour of PNU’s presidential candidate; and abnormally high voter turnouts in Nyanza province, where five constituencies registered turnouts in excess of 90 per cent. 40 In their Report, 41 KPTJ concluded that: “we have previously raised concerns about the manner in which the ECK concluded the presidential elections and declared a winner. We are clear that given what transpired at KICC, it is impossible to know who won the elections.”

36 See Resolution of the Senate, 110th Congress, 2nd Session, Calling for a Resolution of the Current Electoral Crisis in Kenya, O\ARM\ARM08114.xml. 37 See Report, European Observation Mission for Kenya, 2008. 38 See Kenya General Elections: the report of the Commonwealth Observer Group, January 2008, London: Commonwealth Secretariat. 39 The KHRC is a member of the coalition, together with other governance, human rights and legal organisations, including the public and statutory KNCHR and academia. 40 See Preliminary Findings from the 2007 Presidential Elections Results Released by the Electoral Commission of Kenya, released on January 18, 2008: Nairobi: KPTJ. 41 Countdown to Deception: 30 hours that destroyed Kenya, released on January 18, 2008, Nairobi: KPTJ.

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8.0 Conclusions and Recommendations As Kenyans embarked on the journey towards democracy, they initially believed that former President Daniel arap Moi was the problem. In 2002, that diagnosis was illustrated by the NARC’s ascension to power under the slogan: Yote Yawezekana Bila Moi (Everything is Possible without Moi). Local and international observer groups of the 2002 General Elections considered them transitional and that Kenya had embarked on a new dawn as the people had spoken. 42 From the Chapters above, however, it is clear that the transitional optimism was illusionary. That does not, however, discount the substantial gains registered with respect to human rights. A recently released Report stated: “although the protection and promotion of human rights of Kenyans progressed in a positive direction during the review period, inadequate political will and commitment was shown by the government to ensure the effective protection and promotion of those rights.” 43 Thus, some milestones have been passed, with respect to all kinds of rights, but some setbacks remain, cited in the preceding Chapters, indicating that Kenya still is striving for democratic transformation. In this regard, from the above findings, the KHRC would like to conclude with recommendations on the following human rights: 1) The Right to Vote: the chief custodian of this right is the ECK. The independence and integrity of the ECK was compromised by its complicity before, during and after polling day, especially with regard to the national tallying exercise at the KICC. In addition, the electoral system of first-past-post is not suited for multi-ethnic Kenya. Recommendations: a) the hard option: the ECK is disbanded and reconstituted at all levels, using the IPPG formula, by the end of 2008. The IPPG agreements should be legally secured and based on merit to ensure political parties appoint competent professionals with integrity. b) the soft option: Commissioners and staff (including contract and casual workers) in the irregularities, malpractices and illegalities, resulting in electoral fraud be identified, investigated and prosecuted by the end of 2008. c) Constitutional, legal, policy and administrative changes be made to replace the current electoral system with mixed member proportional representation by 2010. 42 See When Kenyans Spoke: a report of the 2002 General Elections, Nairobi: K-DOP. By its title, the K-DOP (the largest local observer group in Kenya’s history) expressed the optimism of the nation and further wrote: “Voters had become discontented with the ruling elite, and needed the power of the ballot to remove the unjust system that had become oppressive. The result of the 2002 General Elections was a rejection of a political system that had become insensitive to the problems afflicting millions of Kenyans.” 43 See Human Rights House Network– Kenya, Human Rights in Kenya: The Post Moi Era (2003-2007), Nairobi: Claripress: 2007.

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2) The Right to Integrity and Security of the Person: the Kenya Police Force guarantees this right. The Kenya Police Force worked in difficult circumstances. However, it also, as a ‘regime force,’ used excessive force against Kenyans. Recommendations: a) the Kenya Police Force should investigate and prosecute those who committed violence against police officers and those police officers who committed violence against Kenyans by the end of 2008. b) the Commissioner of Police be relieved of his duties and replaced by the end of 2008. c) those among the Kenya Police Force who gave orders to shoot to kill be relieved of their duties and prosecuted by the end of 2008. d) the Ministry of Justice and Constitutional Affairs to enhance the independence and capacity of the Ombudsperson’s Office by the end of 2008. e) a Police Service Commission be established, within the framework of the Bomas Draft Constitution, by the end of 2010. f) a Civilian Oversight Body, based on international frameworks that exist for checking excesses of the police, be established by 2010. 3) The Right to Freedom of Expression: Chapter 5 addressed hate speech. A balance should be sought between hate speech and the freedom of expression. Recommendations: a) the Kenya Police Force and the KNCHR investigate sources of the leaflets, emails, blogs and SMS propounding hate speech and prosecute those responsible by the end of 2008. b) the Kenya Police Force investigates audio and video footage of politicians in campaign rallies to prosecute those responsible for inciting violence by the end of 2008. c) the KNCHR, together with NGOs, organises national and regional fora to discuss hate speech by the end of 2008. d) Parliament enacts hate speech legislation by the end of 2010. 4) The Right to Access Information: this right has been violated under the Official Secrets Act. But the KBC has an obligation to broadcast in a balanced manner. The same should be applied to all media, including local language radio stations, according to the Guidelines for Elections Reporting of the Media Council of Kenya. Recommendations: a) the Freedom of Information Bill be enacted and related policy formulated and implemented. ________________________________________________________ Violating the Vote: A Report of the 2007 General Elections

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b) the KNCHR and NGOs continue lobbying for the repeal of Official Secrets Act and the enactment of the Freedom of Information Act, by end of 2008. c) the management of the KBC be de-linked from the state and it be transformed into a genuine national public broadcaster through appropriate legislation and internal policies by the end of 2008. d) the KNCHR and NGOs lobby parliament for amendments of the Communications Commission of Kenya Act, to clearly delineate and limit the powers of the Minister of Information with respect to live broadcasting by the end of 2008. e) The Communications Commission of Kenya investigate audio records of local language radio stations between August 2007 and February 2008 by the end of 2008 and withdraw licenses for those found guilty of hate speech by the end of 2009. 5) The Right to Freedom of Assembly: As seen in Chapter 1, many political meetings, rallies and so on were held, enabling people to exercise their right to freedom of assembly. In conflict areas, however, this right was compromised because of curfews and fear among the populace. Following the presidential swearing in, the right to assemble was violated. Recommendations: a) the KNCHR and NGOs continue lobbying for the promotion and protection of all rights for all people. b) the state Government to restore calm and address underlying issues preventing peace in conflict areas by the end of 2008. 6) The Right to Freedom of Association: although political parties have proliferated, democracy has not. The KHRC has supported the Political Parties Bill and therefore recommends the following. Recommendation: a) the state, through the relevant Minister, gazette and operationalise the Political Parties Act by the end of 2008. 7) The Right to Equality and Non-Discrimination: this Report has depicted the manner in which women and other marginalised groups were subjected to discrimination through hate speech and violence. Although women form the bulk of the population, only a handful made it through to civic seats and parliament. Recommendations: a) the KNCHR and NGOs, including the women’s movement, continue lobbying for the promotion and protection of all rights for all women and also ‘special interest’ groups. ________________________________________________________ Violating the Vote: A Report of the 2007 General Elections

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b) Parliament amends the Constitution of Kenya to provide for district seats where women contest parliamentary seats, relative to the Bomas Draft Constitution, by the end of 2009. c) Local Authorities specify wards where only women contest by 2009. d) the principle of ensuring women’s representation in appointive and elective offices be enshrined in all public staffing policies at at least the Beijing target of 30 per cent (if not the AU target of 50 per cent) by the end of 2008. e) Parliament and the reconstituted ECK work out a formula, through MMPR to providing space for women and other marginalised groups by the end of 2010. 8) The Right to Campaign: most candidates enjoyed this right, but it was violated in three ways: through violence, candidates were unable to campaign especially in conflict areas; female candidates were verbally and physically assaulted and threatened; and some political parties hired youth to disrupt rallies of opposing parties in their strongholds. Recommendations: a) the Kenya Police Force establish a unit to provide security for candidates, especially females, during campaigns by 2010. b) to deal with stronghold intimidation, the state, through the relevant Minister, gazette and operationalise the Political Parties Act by the end of 2008 c) the Kenya Police Force investigate and prosecute all cases of violence against female and other candidates by the end of 2008. 9) The Right to Freedom of Movement: this right was violated in areas under curfew, in strongholds, for female candidates and those ordered to vacate their homes through hate speech. Recommendations: a) the Kenya Police Force establishes a unit to provide security for candidates, especially females, during campaigns by 2010. b) the state, through the relevant Minister, gazette and operationalise the Political Parties Act by the end of 2008. c) the KNCHR and NGOs continue lobbying for the promotion and protection of all rights for all people and ‘special interest’ groups. d) the KNCHR and NGOs continue lobbying for justice, including compensation, resettlement and restitution, for the IDPs. 10) The Right to Judicial Petition: the KHRC had urged all those who lost elections and felt aggrieved to do to courts of law. This Report, however, notes that the speed with which petitions are ruled upon denies wouldbe petitioners the rights to access justice and due process. In addition, ________________________________________________________ Violating the Vote: A Report of the 2007 General Elections

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the presidential swearing in, following irregularities, malpractices and illegalities, was essentially ‘fruit of the poisoned tree.’ Recommendations: a) all candidates, especially women, who believe they lost unfairly file petitions, by end of the legally required time frame. b) the Chief Justice to instate mechanisms, such as a special court, to hear all petitions before the end of 2009. c) the LSK censures its lawyers who do not appear in court, thus slowing down the petition process. d) the complicity of the Chief Justice and the judiciary in the electoral failures be examined and addressed. 11) Regulation of Political Financing: where there is no ceiling on campaign financing, those who have less money have their rights to campaign compromised. Legal as well as illegitimate businesses bribe candidates for future favours, resulting in corruption. Recommendations: a) the Kenya Police Force, the Attorney General and the KACC investigate all campaign financing between September and December 2007 and prosecute all those guilty of corruption by the end of 2008. b) the CAPF equips the above public offices above with information that could lead to the arrest and prosecution of the above by the end of 2008. c) the Chief Justice institutes mechanisms, in the Anti-Corruption Court to hear all cases before end of 2009. d) the state, through the relevant Minister, gazettes and operationalises the Political Parties Act by the end of 2008. 12) Executive Discretion over the Timing of Elections: the presidency controls many institutions in charge of the electoral process, from appointments to the ECK, to the judiciary, which presides over election petitions. This Report has also noted that the Provincial Administration is also under the control of the Office of the Presidency. Recommendations: a) Parliament alters the Constitution to reduce the powers of the presidency by the end of 2009. b) NGOs and all Kenyans pressurize for the drafting and enactment of a new, democratic constitution by the end of 2010. c) the state undertakes comprehensive judicial and electoral reforms by the end of 2009. d) the Provincial Administration be abolished. ________________________________________________________ Violating the Vote: A Report of the 2007 General Elections

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13) Impunity and Prosecution: Chapter 7 illustrated the impunity that exists. Powers of prosecution rest with the Attorney General, with some delegation to the Kenya Police Force. Recommendations: a) the current Attorney General be relieved of his duties by the end of 2008. b) the state establishes Transitional Justice mechanisms by the end of 2008. c) the state terminates prosecution by the Kenya Police Force and hires advocates by the end of 2009. d) Parliament alters the Constitution by reducing powers of the presidency by the end of 2009. e) the KNCHR and NGOs continue the Campaign Against Impunity. f) the state undertakes comprehensive judicial and electoral reforms by the end of 2009.

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Violating the Vote