The Partnership for Change Message for Madaraka Day – 46 Years Later It’s Not Yet Uhuru but Change is Coming.

THE PARTNERSHIP FOR CHANGE MESSAGE FOR MADARAKA DAY – 46 YEARS LATER IT’S NOT YET UHURU BUT CHANGE IS COMING.

Nairobi 1st June 2009

Summary: Madaraka was meant to;
- give Kenyans sovereignty over their political affairs and their resources
- give Kenyans a Bill of Rights to be enforced by an independent judiciary
- create a democratic, prosperous & just Nation where the rule of law prevails

46 years ago today, a handover took place at a ceremony in Nairobi, Kenya, between the British colonial government and an elected government headed by the leader of the Kenya African National Union, Jomo Kenyatta, as Prime Minister of Kenya. That day June 1st 1963 has since then been commemorated annually by Kenyans as Madaraka (Internal Self Government) Day. It is the day that Kenyans knew their independence would shortly come.

Six months later on December 12th 1963 (Jamuhuri or Republic Day), Kenya attained independent dominion status within the British Commonwealth under a constitution that was negotiated and agreed at three multi-party Constitutional Conferences held in London and Nairobi between 1961 and 1963. At the stroke of midnight all eligible persons in the country became citizens of Kenya by birthright – in the case of those born after midnight – by naturalisation or by application.

Jomo Kenyatta remained Prime Minister until December 12th 1964 when further constitutional changes declared that Kenya would henceforth be a Republic with Jomo Kenyatta as the first President of Kenya. Kenyatta was president for 15 years. The Prime Ministership was abolished, and there have only been two more Kenyan Presidents since then – in 46 years – Daniel Arap Moi who was President between 1978 and 2002 (24 years); and Mwai Kibaki who is serving his 7th year as President.

Since that first Madaraka Day, Kenyans have been trying to secure the benefits of internal self-governance, democracy and prosperity for the people of Kenya. Sadly, 46 years later, Kenyans are still suffering from the ills of a colonial like state which instead of healing, feeding, and educating and securing the people; oppresses steals and even kills often and with impunity.

Kenyans know that freedom is not free, and that they have to unite as they did before Independence for freedom. Several times in our history we have been reunited in the push for true Uhuru. Immediately after the first Madaraka Day the struggle to preserve the vision of land and freedom was led by the Kenya People’s Union against KANU, and throughout the 1960s and 1970s by patriots like Pio Gama Pinto, Josiah Mwangi Kariuki and the students and dons of Kenya’s universities. This was defeated by brute force and assassinations. In the 1980s the resistance to section 2A of the Constitution involved agitation for the end of the one party KANU dictatorship of Daniel Arap Moi. Most recently, there was the rejection of KANU in 2002, and the election of the National Rainbow Coalition which was Kenya’s first pre-election pact coalition government, and which developed an Economic Recovery and Constitutional Reform strategy and plan which was frustrated by selfish political manoeuvre. Today Kenyans are striving to overcome the political, economic and governance crisis which emerged after the botched presidential election of December 27th 2007, and this struggle is assuming a dimension of generational leadership change in the form of a “citizen’s in charge” movement.

Throughout the darkest days, Kenyans have always known that they are Kenyans and that as such they have rights which are given to them by their Constitution. They have consistently since Independence resisted against a leadership that sought to oppress them as the colonial state did. They have however suffered greatly in this resistance. Many Kenyans have been detained without trial, subjected to rigged trials, exiled, tortured and even been killed and tortured in the past 46 years.

On 12th December 2008, citizens through the Partnership for Change declared that they were going to take charge of democratising and freeing their country for themselves. The Partnership for Change has since November 2008 been implementing a six-point agenda of advocacy and public education on the National Accord, Fundamental Human Rights, the National budget and Debt, Citizens’ Responsibility and Ending Impunity. These agenda items are covered in the National Accord of February 28th 2008, which established the Grand Coalition Government led by President Mwai Kibaki and Prime Minister Raila Odinga.

WHAT IS THE CONTENT OF OUR NATIONAL ACCORD?

Agenda One of the National Accord:
- restoration of civil and political liberties
- cessation of violence against and between citizens

Agenda Two of the National Accord:
- resolving the post election humanitarian crisis
- reconciliation and national healing

Agenda Three of the National Accord:
- overcoming the political crisis

Agenda Four of the National Accord:
- overcoming long term issues and providing solutions to mass poverty and unemployment, land reform, regional imbalances, and equity
- addressing national cohesion and reconciliation, transparency and accountability, constitutional reform, institutional reform of Parliament, the Judiciary and the Internal Security Apparatus including the police

The Grand Coalition Government has failed to keep the timelines and to deliver the National Accord. We believe that implementing the National Accord and the agenda of the Partnership for Change will ensure the delivery of the vision of Madaraka Day and Uhuru. We have committed ourselves to use all our constitutional freedoms to advocate and educate Kenyans on our agenda for the prosperity and freedom of all citizens. In this, as people and citizens of Kenya, we shall act without waiting for the political leadership who have failed us before time and time again.

Recognizing that Madaraka Day 1963 made us citizens with inalienable rights, the Partnership for Change shall over the next 6 months up to December 12th 2009 mount a nation-wide campaign to restore the Madaraka Day vision of democratic accountability and urge Kenyans to resist dictatorial impunity. If we succeed, at a minimum the fundamental rights of every Kenyan will be respected and protected by the state and its agencies on pain of prosecution for any one regardless of status, who violates the rights of a Kenyan citizen. Our rights are not negotiable.

The Partnership for Change holds the position that the National Accord and not Vision 2030 is the country’s Blue Print for national development and ultimately salvation. On this 46th Madaraka Day, we restate that the full implementation of the National Accord is non-negotiable and the Grand Coalition Government so long as it remains incapable, or refuses, to implement the National Accord has no moral authority to remain in place, bearing in mind it is created by a political pact and not by a democratic election result. To stimulate peaceful and democratic change in Kenya, we shall support people’s struggle and initiatives for a better Kenya in the following ways:

1. We shall work to raise awareness of public resources management discipline in order to identify and secure financial and other resources for the achievement of Agenda 4 of the National Accord. In this regard we are campaigning to rationalise the budget and to achieve at least 60% of the budget is secured for development spending; and are also advocating for a comprehensive external debt relief agreement for Kenya.

2. We shall work and campaign as citizens, educating others and asserting our fundamental freedoms as detailed in Chapter V of the Constitution (Bill of Rights) and in particular calling for the unequivocal and full implementation of the full implementation of the Report of the Waki Commission of Inquiry into the Post Election Violence and the Alston Report to the 11th Session of the United Nations Human Rights Council on Summary and Extra Judicial Killings to end impunity in Kenya and to ensure that for the first time in Kenya’s history since Independence all public institutions and public officials are held accountable, and work to promote and defend human rights.

3. We shall work with grassroots Kenyans to educate Kenyans, organise forums that are driven by the citizens themselves- on how to full participate and consult with each other to participate in decision making, public finance, to protect and preserve democracy, ensure honest and effective representation in Parliament and the local governance structures and indeed all governance structures.

4. We shall advocate for the need for impartial application of the rule of law. Kenyans are born equal, regardless of the political opinion, ethnic origin or social status.

5. We shall develop plans and policies for institutional responses to deal with impunity including enhancing public monitoring and record keeping of the government operations related to public finance management and the as regards the fundamental human rights

6. We shall support the call by the people of Kenya for their immediate democratic re-enfranchisement and their right to an elected government.

WE SHALL ACT FOR THE FOLLOWING REASONS AND GROUNDS:
We shall do this because the Grand Coalition Government must be pushed to deliver on its duty to Kenyans as expected in the National Accord. We shall do this because it is our right to demand for the full implementation of the National Accord. Failure to implement the National Accord constitutes grounds for a fresh election, and the Grand Coalition Government has failed in the following respects:

Failure to keep Timelines:
- It has failed to keep the timelines to deliver the promise of the National Accord. Constitutional Review within 12 months has been overlooked hence the stalled institutional reforms in the judiciary, in parliament and the representation of the people, dealing with regional imbalances and the public finance systems;
- It has failed to establish the Special Tribunal for Kenya to punish the persons bearing the greatest responsibility for crimes against humanity committed in Kenya during the Post Election Violence period (December 2007 to February 2008) during which 1,133 Kenyan were murdered and hundreds of thousands were displaced.
- It has failed in 15 months to settle the internally displaced victims of the post election violence leaving hundreds of thousands of Kenyans exposed to untold suffering daily, indefinitely.

Failure to Protect Kenyans and End Extra Judicial Killings
- It has failed to demobilise militias, and dismantle organised crime syndicates and gangs, which continue to murder, extort and maim with impunity.
- Extrajudicial killings by the Kenya Police continue and no one is being punished for this illegality which has lead to the deaths of hundreds of Kenyan young men and women. Torture of persons in official custody remains a practice within the police and other disciplined forces, and torturers have impunity. Police reforms are still pending and on June 2, 2009 the UN special Rapporteur on Enforced disappearances shall present a damning report on Kenya. Shockingly during the Madaraka day celebrations, neither the President nor the Prime Minister had anything to say on this – in prominent attendance at the celebration was the Police Commissioner who has several times been indicted by independent and official reports. The Attorney general who has been described by the UN Special Rapporteur as the embodiment of impunity remains in office after 19 years, and presumably for life.

Failure to Secure Protection of Law and Access to Justice
- There have been no efforts to improve access to justice for the majority of the population. Whereas over the past 15 months the Grand Coalition Government increased the administrative districts to over 209; it has failed to provide the people with courts and today there are only 58 High Court Judges, and 287 Magistrates for a population of 38 million citizens. The backlog of cases according to the Ministry of Justice stands at over 800,000! 46 years after independence, Kenyans are denied justice as a majority face criminal charges without any legal aid or assistance by qualified lawyers.
- Prisons were built to hold 16,000 inmates at a time. Today they hold over 64,000 convicts and every day about 45,000 Kenyan citizens are held by the police in cells under inhumane and degrading conditions.

Failure to Address Long Term Issues
- The Grand Coalition Government has failed to tackle poverty and inequality. It has failed to deliver on its promise to generate 740,000 new jobs each year from 2008 to keep up with youth unemployment which is now a national security threat. Training colleges have been shut down for lack of funds while the Grand Coalition Government continues to increase recurrent expenditure on hospitality and conspicuous consumption.
- The Grand Coalition Government has failed to consolidate national cohesion. It has failed to criminalise hate speech by law and in fact it has allowed politicians and public officers to verbally abuse and scandalize those who point out its faults. The Kiambaa victims’ mass funeral which was avoided by the national and local leadership of the Orange Democratic Movement, and shoddily managed by State House shows how far the nation is from national healing.
- The Grand Coalition Government has failed to institute the much desired and needed land reform and is engaged in a sham discussion to shield its members’ vested interest in the status quo where formally public lands remain in private hands illegally; a fact extensively documented by among others the Ndung’u Land commission report of 2004.
- The Grand Coalition Government is incapable of fighting corruption and has indeed institutionalized impunity for gross economic crimes by shielding perpetrators from persecution and by incorporating perpetrators of corruption in its highest political and public offices. Today, more than half of the cabinet ministers of the GCG are implicated in Grand corruption charges and are yet to be cleared. A corrupt government can not deliver Agenda 4 of the National Accord.

Failure to control Public Debt:
- The Grand Coalition Government has committed 24% of national Budget to debt redemption and is increasing our domestic debt from Kshs. 670.8 billion to Kshs. 827.4 billion and since 1963 Kenya has borrowed over Kshs. 1 trillion with little to show for it. It is now imperative that we have full accountability and transparency in our debt. The Partnership for Change shall demand that Kenyans are told whom we owe and for what purpose we owe. We shall campaign that we as a country should undertake no further debts until the government of Kenya accounts to the people through Parliament. A quick look at our statement of external debt reveals huge borrowings and repayment to the tune of over a trillion shillings for development infrastructure that has never been built. Most of the loans did not have proper parliamentary authority and went to private hands leaving Kenyan tax payer to pay for value un-received. Disturbingly, the Grand Coalition Government has made it its policy to borrow to fund its recurrent expenditure.
- The Partnership for Change takes exception with the Bretton Woods institutions which choose to ignore the public evidence that the Kenyan Government is neither transparent nor accountable in public finance management and that there are odious debts on our books. Even though the Partnership for Change alerted the Executive Board of the International Monetary Fund as to the presence of odious debt our books, and the history of pathetic management of public resources by Treasury, the International Monetary Fund’s immediate response to this call was to lend the Government of Kenya twice the amount it wished to borrow.

The Partnership for Change shall play Its role in offering information, organising the people and providing the tools for holding public officials and state institutions accountable so that by December 12, 2009, Kenyan citizens shall have made a breakthrough.

Partnership for Change
Nairobi 1st June 2009

Fundamental Human Rights of All Kenyans Must Be Respected by the Kenyan Police Commissioner

All were released last evening on a free bond. However they are now to report back to the Muthaiga Police Station on Tuesday and may face charges of being members of Mungiki. We believe this is a bogus frame-up of a case. Shame…

The Partnership for Change is alarmed by the number of arrests being made by the Kenya Police Force of peaceful Kenyans going about their daily business, and when they are exercising their fundamental human rights to petition Government and to demand for the full implementation of the National Accord. Even today, George Nyongesa of Bunge La Mwananchi reports that Gacheke Gachihi – a Bunge la Mwananchi network leader in Huruma – along with 20 other people, was arrested in a tea kiosk in Kiamaiko while having Sunday breakfast. Even the owner of the kiosk, Joel Kimani, was arrested. The police are now holding all of them at Muthaiga Police Station and are to be charged tomorrow at Makadara Criminal Courts with membership of an unlawful movement, the Mkenya Solidarity Movement. This is a bogus charge because first of all the Mkenya Solidarity Movement is a registered political party headed by former MP G.G. Kariuki; and second none of the people arrested are members of it. They were having tea in a kiosk which was raided by the Police. Apparently, they could have bought their freedom, but being poor people did not have the thirty thousand shillings they were each asked for.

These arrests indicate how badly derelict the Government is in implementing Agenda One of the National Accord, which required the Government to take immediate steps to restore civil and political liberties including the freedom of expression and assembly. The Minister for Justice, Martha Karua, herself said at the Kenya We Want Conference that the backlog of cases in the Judiciary is over 870,000 cases. Is it right that the Government should continue arresting peaceful Kenyans who are calling out for Justice? Is it right that the Police are carrying out swoop arrests possibly for extortionate purposes?

The arrests also remind all that there is still an unrepentant dictatorial Police Force operating in Kenya, quite out of step with the letter, intent and spirit of Agenda One of the National Accord. At its head is Major General Hussein Ali, who as the very first witness to testify before the Waki Commission of Inquiry into the Post Election Violence said “I would do exactly what I did. I would not change a thing my Lords, and that is the honest truth” when asked by Justice Waki for his honest opinion on the Police Force’s actions and whether he had reflected on any possible acts or omissions by the Kenya Police during the 2-month period that violence raged across Kenya.

Clearly Major General Ali has no apologies to make to the victims of Police bloodlust or to the Kenyan public for the use of deadly force against civilians in such circumstances as to suggest crimes against humanity. His unrepentant hard-line attitude and complete lack of empathy for the victims of his force’s excesses raises questions as to his suitability for the position he holds. And yet, he is still in office one year after the Post Election Violence, a major stumbling block and obstacle to the implementation of the Waki Commission’s Report for reform of the Police Force. His tenure threatens the enjoyment of civil liberties in Kenya, and Kenyans lack confidence in his ability to ensure that the Police Force facilitates rather than inhibits civil liberties.

Over the past one year since the signing of the National Accord the Kenyan press has carried over 1,000 articles on police brutality. The Oscar Foundation has documented 68 enforced disappearances after police arrests in 2009, and 122 extra judicial killings since January 1st 2009. Cumulatively, since 2007, the Oscar Foundation has recorded 6,452 enforced disappearances, and 1,721 extra judicial killings by police officers in its reports derived from monitoring police activity, and a para-legal programme in major urban areas around Kenya. The state Kenya National Commission on Human Rights, the Independent Medico Legal Unit, and the Release Political Prisoners pressure group carry similar reports. These issues are the subject of questions in Kenya’s National Assembly, and recent enquiry by the United Nations Special Rapporteur on Extra Judicial Killings. Despite all the evidence, police reform and personnel change has not started one year after the National Accord and 4 months after the publication of the Waki Commission of Inquiry on Post Election Violence Report. Less than 10 Police Officers have been brought to account for the crimes described in this paragraph.

Internal Security Failure
Justice Waki’s Commission charged the Police Force with “failure” in concert with its other internal security counterparts, the Provincial Administration, the Administration Police, and the National Security Intelligence Service. Their collective failure to act on intelligence reports contributed to the violence. Justice Waki also condemns “indifferent” state agencies such as the NSIS, which possessed knowledge that apparently was not properly shared. Finally, the CIPEV concludes that the effectiveness of the Kenya Police and the Administration Police was hampered by inter alia “political expediency” impacting their work.

The report, which, President Kibaki made public, recommends changes to the inter-agency coordination and joint operation structures of the Kenyan internal security apparatus. Among these are the merging of the Kenya Police and the Administration Police and the establishment of an Independent Police Authority.

Free-for-All Situation
The post election violence was not merely citizen to citizen attacks – it also consisted of systematic attacks against Kenyans based on their ethnicity and political persuasion. The ability of the state internal security apparatus to protect Kenyans from violence is harshly questioned, and the CIPEV took note of the fact that in some cases attackers traveled long distances, unhindered, to attack their victims. The “free-for-all” was made possible by the collapse of state security, which saw the police overwhelmed. This conclusion by Justice Waki must surely put the Police Commissioner, Major-General Hussein Ali, on the spot. The CIPEV report also accused some state agents of being “guilty of acts of violence and in our finding in broad violation of the human rights of citizens” and states that such were the results of a trend towards institutionalizing violence against the public. It also stated that 1,133 Kenyans were killed and 405 of this number were killed by gunshots during the 2-month period.

The Waki report is clear as regards the conduct of state security agencies, they failed institutionally to anticipate, prepare for, and contain the violence. Often individual members of the state security agencies were also guilty of acts of violence and gross violations of the human rights of citizens, including rape and murder.

Kenyan Politicians and Business Leaders fingered in Militia Killings – Waki recommended a Special Tribunal for Crimes Against Humanity Committed in Kenya
Justice Waki’s Commission identifies Kenya’s constitutional framework as a causative factor in the 2007/8 violence – repeatedly raising the stakes in election after election with ethnic coalitions confronting each other. The Commission specifically identified the concentration of power around the Presidency as a contributing factor to the Violence of 2007/8; and the flashpoint for what became an ethno-geographical power struggle between the Party of National Unity and the Orange Democratic Movement Party after the contentious announcement by the Electoral Commission of Kenya of Kibaki’s reelection.

In previous episodes of political violence (since the 1990s) militias have been active. Since the last episode of violence in 2002, many such militias appear to not have been demobilized. In 2007 and early 2008, the militias were reactivated by “politicians and business leaders” who tried to use violence to win the power struggle that followed the 2007 election announcement.

According to Justice Waki, CIPEV obtained evidence identifying prominent sponsors and perpetrators of violence (“in politics, in government, in business and elsewhere”) and devised a means to anticipate and deal with the problem of political impunity in Kenya, and the need to secure real witness protection for informants. The Commission has recommended the creation of a special tribunal with a mandate to try persons for crimes against humanity committed during the post election period.

To safeguard against political vested interests in Kenya, the CIPEV has recommended that the Tribunal should have international members, as well as international prosecution and investigation staff. It expects that the proposed “Special Tribunal for Kenya” will be set up in Kenya as a court and will try those with the greatest responsibility for crimes against humanity. Kenyans want to see the Special Tribunal start its work to root out the killers in our midst, and to end their impunity.

Non-Prosecution amounts to a continuing violation of the Human Rights of Citizens
The Kenyan Commission on Post Election Violence (CIPEV) completed its investigation into politically motivated violence 4 months ago with a stinging indictment of institutional failure and complicity of Kenya’s internal security apparatus in gross human rights violations and crimes against humanity. The events it was investigating took place more than one year ago, and yet there have been no indictments of any of the main actors behind the post election violence. Justice for victims has taken a back seat.

The Commission’s report, delivered to the President of Kenya, charges that Kenyan security agencies “failed institutionally” to contain and prevent the violence. Justice Philip Waki, of the Kenya Court of Appeal, who chaired the Commission also presented the final report to the Kofi Annan led Panel of Eminent African Persons.

The names of the persons bearing the greatest responsibility for financing organizing or perpetrating the violence were placed in a sealed envelope which is in the possession of Kofi Annan pending establishment of the Special Tribunal for Kenya which is expected to try those named. However, Parliament appears to have failed in its first attempt to establish the Special Tribunal in Kenya, and Dr. Annan now has to exercise his judgement and discretion as to how to proceed with ensuring that the Waki List Suspects are brought before justice as soon as possible. The Panel of Eminent African Personalities may decide to send the names of those bearing the greatest responsibility for crimes against humanity to the International Criminal Court Prosecutor for investigation now that Parliament has rejected the Constitutional Amendment Bill that was to establish the Special Tribunal.

Grand Coalition Government Unwilling to keep its National Accord promise
Processions over the lack of food are not illegal as the people who are demonstrating speak on behalf of the many Kenyans that are going hungry today. It is ridiculous to see the kind of treatment the government is meting out on the defenders of fundamental human rights such as the right to food and other very basic commodities essential to protect the poor and hungry from starvation caused by an irresponsible Government and Corrupt members of Parliament.

This government through its Law enforcement Officers has demonstrated that it is unable to handle the governance issues that it is responsible for creating and that it should step aside and pave the way for fresh elections to be held in order to offer alternative leadership for this country.

Policemen and Policewomen are our brothers and sisters
By and large the Partnership for Change recognizes that most Police Officers are good, decent and honest Kenyans who have a sense of public mission. Although we do not condone corruption Kenyans know the poor pay and living conditions most Police Officers endure as they do what can be dangerous work, exposes them to the temptation to engage in survival corruption – a temptation many succumb to. If the Government were to use public funds properly, it would be possible to address the livelihoods of Police Officers. However, the real problem in the Police Force is at the top. Just like every other public institution in Kenya, the Police Force is in need of an immediate overhaul. Kenyans will have no confidence in the promises made under the National Accord if the people responsible for, or at the helm of, the force that gunned down and disappeared so many innocent Kenyans remain in office.

The citizen of Kenya must say NO to dictatorial impunity in favour of democracy accountability. The Rule of Law must prevail in Kenya.