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Background to the Post-Election Violence

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The Post-Election Violence in Kenya

Part of the book series: International Criminal Justice Series ((ICJS,volume 2))

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Abstract

Literature indicates that the violence accompanying the 2007 general elections in Kenya was a spill-over effect of the country’s previous history, hence the need to scrutinize the historical antecedents to these elections. This chapter identifies and analyzes five factors, namely negative ethnicity, dictatorship, political alliances, criminal gangs and impunity, which, prior to the 2007 elections, had characterized the Kenyan politics. The chapter reveals that in view of the five factors, feelings had developed in Kenya, already before the 2007 elections, that certain ethnic communities had been deliberately marginalized since independence, while others had been highly privileged or favoured in different ways. This gave rise, inter alia, to a number of historical fears and grievances, mostly in relation to land. It is shown that this state of affairs became a recipe for election violence accompanying all the multiparty elections prior to 2007, and since the grievances were not addressed, and in view of the previous trend of election violence, it indeed became certain that even the 2007 general elections would not be free from violence.

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Notes

  1. 1.

    See Troup and Hornsby 1998, p. 2.

  2. 2.

    Biegon 2008, p. 34.

  3. 3.

    Cf. Kenya Truth Justice and Reconciliation Commission Report 2013, Vol. IV, para 263.

  4. 4.

    Negative ethnicity refers to the use of tribes or tribal affiliations to further the interests of one ethnic group against those of other similar groups or at the expense of national unity, peace and security. It is contrasted from “positive ethnicity” whereby ethnicity is used to mirror group’s identity in terms of its customs, traditions and culture. Thus, whereas positive ethnicity, in the African context, is good for the nations that are ethnically diverse, negative ethnicity could become disastrous. For greater detail see generally Wamwere 2003a, b.

  5. 5.

    Cf. Kenya Truth, Justice and Reconciliation Commission Report 2013, Vol. IV, paras 259–263. The divide-and-rule system created both a physical and social distance among the colonial subjects. It was implemented through, inter alia, dividing the colonial territory into smaller geographical-cum-administrative regions, in order to decentralize and consolidate ruling at the grass root level. It was used as a formal separation of the colonial population according to their ethno-regional origins to facilitate exploitation of each. It also entailed an indirect rule system in which the tribal leaders (chiefs) received favours and privileges from the colonial government, and consequently, were used as instruments/puppets of that government. For more details see Christopher 1988, pp. 233 et seq.

  6. 6.

    Troup and Hornsby 1998, p. 7.

  7. 7.

    The Mau Mau was not only a rebellion against the British colonial government, but also as a civil war among the Kikuyus. They set against their own chiefs, the ambitious commercial farmers and local Christians who were supportive of the colonial system. See Troup and Hornsby 1998, p. 7.

  8. 8.

    Ibid., pp. 7–8.

  9. 9.

    Three Lancanster conferences held between 1962 and 1963 were part of the Great Britain’s programme for empire dissolution by relinquishing its political domination over overseas territories. In respect of Kenya, the conference brought together the existing Kenyan political parties to agree on the form of government and the structure of the constitution to be adopted after full political independence. See Manner 1962, p. 8; Ogot 1995, pp. 73–76.

  10. 10.

    KANU was predominantly of Kikuyu and Luo membership, the largest and second largest ethnic groups, respectively. On the other hand, KADU’s membership comprised the smaller tribes of the Abaluya, the Kalenjin, the Maasai and Coast people. See Manner 1962, p. 9. The remaining small tribes, if taken singly, were not a “threat”, because their population was insignificant. Since independence, these tribes have always showed allegiance to the political affiliations of whichever big tribes they think would best protect and advance their interests. See Lamb 1969, p. 538.

  11. 11.

    Jomo Kenyatta was the first president of independent Kenya. In 1952, following a declaration of a state of emergency by the British colonialists, he and other Kenyan nationalists were arrested and charged with “managing and being members” of an illegal movement, the Mau Mau. He was sentenced to 7 years imprisonment and remained under restriction, even after serving his sentence, until 1961. See “African History: Jomo Kenyatta” http://africanhistory.about.com/od/biography/a/bio-Kenyatta01.htm. Accessed August 2014.

  12. 12.

    Troup and Hornsby 1998, p. 9.

  13. 13.

    Originally, this is traceable to the formation of the Federal Independence Party (F.I.P), a political party formed by white farmers in Kenya in 1954. The F.I.P had foreseen that political independence in Kenya was inevitable, and that it would place control into the hands of an African central government. They wanted to seal off the “white highlands” from the reach of a Black central government, so as to ensure that the great wealth of these areas remained in the hands of those who had been responsible for developing it. They would then establish a local self-government (white state) in the area, and so would the Africans in other states to be demarcated. Therefore, the original ambition of the F.I.P. was that Kenya would become a federation of several states. See Sanger and Nottingham 1963, p. 10.

  14. 14.

    Troup and Hornsby 1998, p. 9. For more details on the majimbo ideology see Anderson 2005, pp. 547 et seq.

  15. 15.

    Manners 1962, p. 9; Sanger and Nottingham 1963, p. 12.

  16. 16.

    Manners 1962, p. 9.

  17. 17.

    See Ndengwa and Letourneau 2004, p. 85.

  18. 18.

    While KADU came out of the negotiation confidently claiming that the majimbo structure had been adopted, KANU refuted this claim as a misconception. Instead KANU was confident that the draft which had just been adopted kept intact the centralism structure that was being used by the departing colonialists. See Sanger and Nottingham 1962, pp. 8–9.

  19. 19.

    Ibid., p. 11.

  20. 20.

    Ibid., pp. 16–17, indicating, for example, that in Kericho East constituency, the KADU’s political advisor said that he would resign his seat in protest should a non-Kipsigis candidate be elected as he had too strong feelings against “foreigners”. In the Coast the campaign slogans for KADU, on which it won, were “Wabara kwao” (literally meaning upcountry people to their own home) and later “Kila mtu kwao” (meaning each man to his own home).

  21. 21.

    Results for the House of Representatives were: KANU (83 seats), KADU (33 seats) and African People’s Party, APP (8 seats). For the Senate, the results were: KANU (18 seats), KADU (16 seats), APP (2 seats), Independents (1 seat), and the Nyanza Province African Union, NPUA (1 seat). See Electoral Institute for the Sustainability of Democracy in Africa (EISDA) at http://www.eisa.org.za/WEP/ken1963results.htm and http://www.eisa.org.za/WEP/ken1963results2.htm. Accessed August 2014. See also Sanger and Nottingham 1963, p. 36.

  22. 22.

    Constitution of Kenya of 1963, Article 72.

  23. 23.

    See Ndengwa and Letourneau 2004, p. 85.

  24. 24.

    Troup and Hornsby 1998, p. 12.

  25. 25.

    Ibid.

  26. 26.

    In order to balance the tribes and factions within KANU, Kenyatta co-opted his long-time Luo rivals, Jaramogi Oginga Odinga and Tom Mboya. These were given portfolios of equal standing. All the regions were found a minister and all big and small tribes had their member in the government. See Sanger and Nottingham 1963, pp. 37–38.

  27. 27.

    Troup and Hornsby 1998, p. 12.

  28. 28.

    Anderson 2005, p. 547.

  29. 29.

    Odhiambo-Mbai 2003, p. 61.

  30. 30.

    Ibid., p. 60.

  31. 31.

    Troup and Hornsby 1998, p. 12.

  32. 32.

    Odhiambo-Mbai 2003, p. 61.

  33. 33.

    Troup and Hornsby 1998, p. 12.

  34. 34.

    Ibid., p. 13.

  35. 35.

    Odhiambo-Mbai 2003, p. 62.

  36. 36.

    Mueller 1984, pp. 407–418.

  37. 37.

    Ibid., 417.

  38. 38.

    When Kenyatta died, the Kikuyu, through the then powerful association, the Gikuyu, Embu and Meru Association (GEMA), strived to retain the political power within their tribes. These efforts became futile as the transition went smoothly in favour of Moi. For more details see Asingo 2003, pp. 20–24; Kimundi 2011, p. 81; Steeves 2006, pp. 211–212; Tamarkin 1979, pp. 21–33.

  39. 39.

    Biegon 2008, p. 37.

  40. 40.

    See, generally Adar 2000, pp. 74–96.

  41. 41.

    Troup and Hornsby 1998, pp. 26–27.

  42. 42.

    Biegon 2008, p. 37; Troup 1993, p. 371.

  43. 43.

    Troup and Hornsby 1998, pp. 30–31. This was done in order to deconstruct the Kenyatta hegemony. Two strategies are said to have been used to achieve this. The first strategy was the disengagement of influential politicians from the activities of civil society. The second strategy was the creation of strong patron-client networks within the civil society. In this way, the state was able to silence the opposition groups that were contained in the civil society. See Kanyinga 2003, p. 104.

  44. 44.

    NB. During the 2007 elections, Mwai Kibaki was PNU presidential candidate who was vying for his second and last term. Apart from Vice Presidency, he also held various ministerial posts under KANU in both Kenyatta and Moi governments. He left KANU and joined opposition when multipartysm was re-introduced in 1991.

  45. 45.

    See Otieno 2010.

  46. 46.

    Kanyinga 2003, p. 102.

  47. 47.

    Troup and Hornsby 1998, p. 31. For more details about the coup see Pal Ahluwalia 1996, pp. 129–148.

  48. 48.

    Kimundi 2011, p. 80; Mutua 2001, p. 98.

  49. 49.

    Troup and Hornsby 1998, p. 37. Also see Kanyinga 2003, p 104.

  50. 50.

    Kimundi 2011, p. 82. Also see Ajulu 2000, pp. 137 et seq; Londale, 2004, pp. 91 et seq; Muigai 1995, pp. 171 et seq.

  51. 51.

    NB. Raila Odinga was the presidential candidate for the Orange Democratic Movement (ODM) in the 2007 elections. He is a son of Jaramogi Oginga Odinga, KADU’s leader and the former KANU’s Vice President, who, in a similar way, experienced the mighty hand of the tyrannical state under Kenyatta.

  52. 52.

    Musila 2009, p. 447. Cf. Miguna 2012, p. 108.

  53. 53.

    Kimundi 2011, p. 83; Musila 2009, p. 447. For more details see Odinga 2013.

  54. 54.

    Republic of Kenya 2003, p. 31.

  55. 55.

    Mutua 2001, p. 98.

  56. 56.

    Kimundi 2011, p. 82; Musila 2009, p. 447; Republic of Kenya 2003, p. 31.

  57. 57.

    See Otieno 2010. For details on how this pressure was effective, see Brown 2001, p. 726; Klopp 2001, pp. 481–482; Oyugi 1997, pp. 45–47.

  58. 58.

    See Kimundi 2011, p. 80; Otieno 2010.

  59. 59.

    The call for majimbo mostly came from Rift Valley, the province where KANU had a strong hold. The aim seemed similar to the 1960 s idea of majimboism. As Klopp notes “[t]he attraction of such a model for Kenya's patronage bosses was that, even if they should lose control of the central government, they could bargain with the new leaders on the basis of their political strength in ethnic enclaves where their grip on local politics would ensure their dominance”. See Klopp 2001, pp. 483–487. Subsequently, the majimbo discussion (pro and against) featured again prominently towards the adoption of Kenya’s 2010 Constitution. See The Standard 29 March 2010; The Standard, 28 March 2010; The Standard 26 March 2010; The Standard, 19 March 2010; Daily Nation, 28 September 2010 and Daily Nation, 16 September 2010. Although the advocates of majimbo did not succeed by a 100 %, the new constitution of Kenya of 2010 settled on a county system of governance. It established a dual system of government, consisting of 47 county governments and the national government. In this new structure, the county governments were given semi-autonomous powers of legislation and implementation of governance of their respective plans without prejudice to the control exercised by the National Government. The President was given powers to dissolve any county under prescribed conditions in Part 6 of Chapter Eleven, read in tandem with the Fourth Schedule to the Constitution. It is said that the county system is more of a compromise between those who favoured a purely federal/regional system and those who favoured a purely unitary system. See Daily Nation, 31 March 2010; Mugoya, 2010, pp. 1 et seq.

  60. 60.

    Troup and Hornsby 1998, p. 2.

  61. 61.

    For instance, at the time of general elections in 2007, there were about 300 registered political parties, out of which 117 nominated candidates for the National Assembly. This number had significantly reduced to 47 parties by March 2010 following the enforcement of a new law, the Political Parties Act of 2007, which was introduced to check on the proliferation of parties. See the information by the Electoral Institute for Sustainability of Democracy in Africa (EISA) http://www.eisa.org.za/WEP/ken2010parties.htm.and http://www.eisa.org.za/WEP/kenparties2.htm. Accessed September 2014.

  62. 62.

    Tsuda 2010, p. 12.

  63. 63.

    Keverenge (undated), p. 14.

  64. 64.

    Ibid., p. 36.

  65. 65.

    This fear had intensified because, among other things, Moi did not show any interest in the Vice President, Professor George Saitoti, as the elections drew near. The public had expected that Saitoti would be groomed as Moi’s successor. See Asingo 2003, p. 32.

  66. 66.

    The law required that for a presidential candidate to be declared President, he or she must, among other things, garner a minimum of 25 % of the valid votes cast in at least five out of the eight provinces of Kenya. See Constitution of Kenya, 1963 (R.E 2009), Article 5(3)(f).

  67. 67.

    In the 1997 elections, KANU won the majority in the parliament only by a small margin of 4 seats over the combined opposition parties. Thus, a parliamentary alliance with one of the opposition parties was considered inevitable in order to have a comfortable majority for assurance. See Odhiambo-Mbai 2003, p. 70.

  68. 68.

    Elischer 2008, p. 19.

  69. 69.

    Asingo 2003, p. 115.

  70. 70.

    There are at least five most influential ethnic groups the support of which any politician would strive to win in any presidential election in Kenya, if he or she is to increase the chances of victory. Their importance lies in their composition of the total national population. These are: Kikuyu (21 %), Luhya (14 %), Luo (12 %), Kalenjin (12 %) and Kamba (11 %). See Elischer 2008, p. 1.

  71. 71.

    With this vision, the party leadership structure was changed to create five vice chairmanship positions, apparently to cater for each of “the big five”. Four Vice Chairmen elected were: Uhuru Kenyatta (a Kikuyu), Musalia Mudavadi (a Luhya), Kalonzo Musyoka (a Kamba) and Noah Katanangala (a Mijikenda). Moi (a Kalenjin) remained Chairman, while Raila Odinga (a Luo) was elected Secretary-General. See Odhiambo-Mbai 2003, p. 71. Cf. Steeves 2006, p. 217.

  72. 72.

    Steeves 2006, p. 218.

  73. 73.

    Daily Nation 29 July 2002 (emphasis added). See also Odhiambo-Mbai 2003, p. 77.

  74. 74.

    Asingo 2003, p. 34.

  75. 75.

    The others were Moi’s Vice President Professor George Saitoti, Kalonzo Musyoka, Noah Katanangala and Musalia Mudavadi. However, Moi was able to persuade and co-opt Katanangala and Mudavadi, who abandoned their interests in the presidency and supported Kenyatta. The other three could not be “deceived” by Moi to abandon their interests. See ibid., p. 34.

  76. 76.

    Steeves 2006, p. 220.

  77. 77.

    Asingo 2003, p. 34.

  78. 78.

    For instance, in the 1997 elections, KANU candidate won by 41 % although the four opposition candidates got 59 % of all the presidential votes in the aggregate. Individually, however, only one opposition party, the DP, got 31 %. See Kanyinga 2003, pp. 108–111.

  79. 79.

    This alliance brought together the Democratic Party (DP) under Mwai Kibaki, the National Party of Kenya (NPK) under Charity Ngilu and the Forum for Restoration of Democracy-Kenya (FORD-Kenya) under Michael Wamalwa. See Odhiambo-Mbai 2003, p. 79.

  80. 80.

    Nyong’o 2007, p. 116. Also see Kanyinga 2003, p. 122.

  81. 81.

    New York Times, 30 December 2002. Statistically, NARC won the presidential votes by 62.2 % against 31.3 % earned by KANU and 6 % by FORD People. In the parliamentary results, while NARC won the majority by 125 seats, KANU got 64 seats and FORD People got 14 seats. See Troup 2003a, pp. 4–7. See also Bakari 2002, p. 284; Nasong'o 2007, pp. 98–100.

  82. 82.

    Cf. Wanyande 2003, p. 151; Ndengwa 2003, pp. 157–158.

  83. 83.

    Elischer 2008, p. 20.

  84. 84.

    See Troup 2003b, p. 4. See also Kadima and Owuor 2006, pp. 179, 189 and 211.

  85. 85.

    Steeves 2006, pp. 230–231.

  86. 86.

    Ibid.

  87. 87.

    Ibid., p. 230.

  88. 88.

    Nyong’o 2007, pp. 116–117.

  89. 89.

    NARC’s Memorandum of Understanding, General Principle 11.

  90. 90.

    It was established under the Constitution of Kenya Review Act of 2000.

  91. 91.

    See Report of the Constitution of Kenya Review Commission 2002.

  92. 92.

    The reforms proposed and highly demanded included, inter alia, the introduction of an executive Prime Minister, demotion of the presidency to a mere ceremonial post, establishment of two chambers in the National Assembly and implementation of a county government structure. See Constitution of Kenya Review Commission 2002, pp. 44–75.

  93. 93.

    Elischer 2008, p. 22.

  94. 94.

    Steeves 2006, p. 231.

  95. 95.

    For more details on the two drafts, see Chr. Michelsen Institute 2006.

  96. 96.

    See Tsuda 2010, p. 9.

  97. 97.

    The “No” camp brought together the LDP side of the NARC government, one faction of KANU (under William Ruto) and the National party of Kenya (NPK) under Charity Ngilu. See Elischer 2008, pp. 22–23.

  98. 98.

    The “Yes” camp comprised Kibaki’s side of the NARC government (i.e. the NAK) which teamed up with other parties, the Democratic Party (DP), FORD-Kenya, FORD-People and one faction of KANU under Uhuru Kenyatta. See ibid.

  99. 99.

    See Kenya GN No. 9510, 23 November 2005. The “no” vote won by 58 % while the “yes” vote got 42 %. See “Kenya: 2005 Constitutional referendum results” http://www.eisa.org.za/WEP/ken2005results.htm accessed May 2011), also see “Elections in Kenya” http://africanelections.tripod.com/ke.html. Accessed August 2014.

  100. 100.

    Elischer 2008, p. 23.

  101. 101.

    Branch and Cheeseman 2008, p. 15.

  102. 102.

    Mueller 2008, p. 190.

  103. 103.

    Claiming likeness to the Mau Mau movement, the Mungiki organization rejects Christianity and advocates a restoration of the traditional African (Kikuyu) beliefs and practices. It administers oath to its members. See Land Info 2010.

  104. 104.

    Ibid., pp. 5–6.

  105. 105.

    Mungiki became a gang for hire allegedly available to “the highest bidder”, politicians inclusive. Literature shows that the relationship between Mungiki and the Moi-KANU regime developed strongly from mid 1990s on a quid pro quo basis. E.g., the gang offered its support to the KANU candidate in the 2002 elections allegedly in exchange for arms and aid from the state security forces and allocation of transport routes in the matatu (mini-buses for public transport) business in Nairobi. The “bandit economy” of the gang was estimated to be USD 3.8 million per year in 2004, mostly derived from, among other sources, the resale of hijacked cars and USD 58,000 per month from member subscriptions. See Katumanga 2005, pp. 512–515; Mueller 2008, pp. 192–193. It is estimated to have more than one million members. See Immigration and Refugee Board of Canada 2006–2007.

  106. 106.

    See Kagwanja 2005, p. 59; Katumanga 2005, p. 513. For more details on the role of Mungiki during Moi’s era, see Kagwanja 2007, pp. 25 et seq; Rasmussen 2010, pp. 435 et seq.

  107. 107.

    See Kagwanja 2005, pp. 65–66. Also see Frederiksen 2010, pp. 1065 et seq.

  108. 108.

    Mueller 2008, p. 193. See also Atieno 2007 p. 527.

  109. 109.

    Branch and Cheeseman 2008, p. 15; Katumanga, 2005, pp. 512–513; Kenya National Commission on Human Rights 2008, p. 47, para 161; Mueller 2008, pp. 193–194.

  110. 110.

    Kenya National Commission on Human Rights 2008, paras 159–216.

  111. 111.

    Human Rights Watch 2008, p. 11.

  112. 112.

    Kiage 2004, p. 106.

  113. 113.

    Human Rights Watch 2002, p. 4.

  114. 114.

    Kenya National Commission on Human Rights 2008, p. 47, para 159. Also see Orvis 2001, p. 8 (describing the Kenyan politics as arguably the “most ethnic in Africa”).

  115. 115.

    Human Rights Watch 2008, pp. 12–15. It is said that while the Kikuyus migrate largely for commercial farming and business purposes, thereby breaking links with their original homes, the other communities migrate mainly as workers while maintaining links with their rural homes. Arguably, this nature of the Kikuyu has made them “obvious candidates for discrimination and detestation by those whose property or territory (land in particular) they have been accused of “invading”. See Oucho 2002, p. 58.

  116. 116.

    See Kenya Today, 27 February 2013. NB. When asked this question in a televised presidential debate in 2013, Uhuru Kenyatta, the presidential candidate for the Jubilee Alliance, did not expressly accept or deny this allegation. Instead he only insisted that all the land that the Kenyatta family owns was acquired legally on a “willing-buyer-willing-seller basis”. See second presidential debate [full video], NTV Kenya, published 25 Feb. 2013 http://www.youtube.com/watch?v=DoBo86ttZCo. Viewed September 2014.

  117. 117.

    As quoted verbatim in Southall 2005, pp. 142–151.

  118. 118.

    Human Rights Watch 2008, p. 14.

  119. 119.

    Taussig-Rubbo 2011, p. 65.

  120. 120.

    Katumanga 2005, p. 506.

  121. 121.

    Kenya National Commission on Human Rights 2008, para 45.

  122. 122.

    Ibid., para 44. See also National Christian Council of Kenya 1992, p. 3.

  123. 123.

    Klopp 2002, p. 274; Oucho 2002, pp. 86–89.

  124. 124.

    Kenya National Commission on Human Rights 2008, para 46.

  125. 125.

    Ibid., para 45. See also Africa Watch 1993, p. 1.

  126. 126.

    Africa Watch 1993, pp. 27–37.

  127. 127.

    Human Rights Watch 2002, p. 21 Kiage 2004, p. 107.

  128. 128.

    Kenya National Commission on Human Rights 2008, para 43.

  129. 129.

    See infra Sect. 3.2.2 in relation to the magnitude of the 2007–2008 violence.

  130. 130.

    See infra Sect. 3.4.1.

  131. 131.

    Africa Centre for Open Democracy 2007; Kisemei and Kimani 2010.

  132. 132.

    See Kituo cha Katiba 2007.

  133. 133.

    Republic of Kenya 1992. Also see Kenya National Commission on Human Rights 2008, para 46.

  134. 134.

    UN Office of the High Commissioner for Human Rights 2008, p. 6.

  135. 135.

    For its report, see Republic of Kenya 1999.

  136. 136.

    E.g. see Appendix “G” of the Akiwumi Commission Report which contains a list of 189 persons adversely mentioned and notified as suspects of ethnic violence in various places. For a long list of names of people expressly accused by various commissions as perpetrators of various crimes, including economic crime, murder, political assassinations, etc., see Kisemei and Kimani 2010, pp. 6–26.

  137. 137.

    Kisemei and Kimani 2010, p. 10.

  138. 138.

    Kenya National Commission on Human Rights 2008, para 47.

  139. 139.

    UN Office of the High Commissioner for Human Rights 2008, p. 6.

  140. 140.

    Republic of Kenya 2008, p. 18.

  141. 141.

    See Chap. 5.

  142. 142.

    See Parliament of Kenya 2008. For similar sentiments by expressed in Parliament by other MPs, see Parliament of Kenya 2010.

  143. 143.

    Kiage 2004, p. 107.

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  1. Faculty of Law, University of Dar es Salaam, Dar es Salaam, Tanzania

    Sosteness Francis Materu

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Materu, S.F. (2015). Background to the Post-Election Violence. In: The Post-Election Violence in Kenya. International Criminal Justice Series, vol 2. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-041-1_2

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