U.S. HOUSE OF REPRESENTATIVES
HOUSE COMMITTEE ON FOREIGN AFFAIRS
SUBMMITTEE ON AFRICA AND GLOBAL HEALTH

DATE: WEDNESDAY, FEBRUARY 6, 2008
TIME: 10.00 A.M
SUBJECT: THE POLITICAL CRISIS IN KENYA; A CALL FOR JUSTICE &
PEACEFUL RESOLUTION
NAME: MAINA KIAI
TITLE: CHAIRMAN, KENYA NATIONAL COMMISSION ON HUMAN
RIGHTS (KNCHR)

BACKGROUND
1. Thank you for this opportunity to discuss the crisis in Kenya. My name is Maina
Kiai and I am the Chairperson of the Kenya National Commission on Human
Rights (KNCHR), an independent state body charged with protecting and
promoting human rights in Kenya. Previously, I served as founding Executive
Director of the Kenya Human Rights Commission, a non-profit organization
based in Kenya; Africa Director at Amnesty International in London; Africa
Director at the International Human Rights Law Group (now Global Rights)
based here in Washington DC; and Research Fellow at TransAfrica Forum also
here in Washington DC. I speak on behalf of the KNCHR, as well as for Kenyans
for Peace through Truth and Justice (KPTJ), a coalition bringing together more
than 50 human rights, legal and governance groups in Kenya.

2. Kenya is at a cross-road that will mean either the complete disintegration of
Kenya or the beginning of a new, more democratic, sustainable nation suited to
the needs and aspirations of the Kenyan people in the 21st Century. In a deeply
painful and costly manner--in terms of lives lost and destruction wrought—the
crisis in Kenya has given the country a unique opportunity to move forward in a
way that we have been advocating for the last 20 years. In a sense, Kenya is at its
“civil war” moment that the US was at in 1861. Just as that war was pivotal in
establishing and solidifying the democratic credentials of the US, this moment
could lead Kenya to much greater heights if properly handled both domestically
and internationally.

3. In this context, the mediation currently going on under the leadership of Kofi
Annan, Graca Machel and Ben Mkapa is the last best chance for Kenya to move
forward. Whatever can be done to keep the players at the table, and keep them
there in good faith, is critical. And efforts that delay, or subvert the talks—
whether through insensitive statements and actions or by trying to prolong the
talks through acts of filibustering—must be condemned. Consistent regional and
international pressure is necessary especially on the hardliners who think that the
crisis will blow over. The consequences of the failure of the mediation efforts are
too dire to imagine not just for Kenya but for the region.

4. What is going on in Kenya is a political crisis with ethnic manifestation because
politics in Kenya is organized ethnically. Clearly there are cleavages and
differences in Kenyan society that have erupted brutally to the surface. But these
have erupted due to the failure of peaceful means of resolving and addressing
these differences, including the failure of elections and political reforms promised
to Kenya in the 2002 elections.

5. The crisis in Kenya was foreseeable. In March 2007, the KNCHR submitted a
memorandum to President Kibaki urging him to maintain the “gentleman’s
agreement” that had been in place since 1997 whereby all parliamentary parties
made nominations for appointment to the Electoral Commission of Kenya. We
argued that unilateral abandonment of the agreement would likely invite chaos
and instability were the elections disputed. Moreover, since January 2006 we
witnessed consistent attempts by the state to reduce democratic space and instil
fear in society.

THE EXTENT OF THE CRISIS
6. Some 1000 people have been killed in the one month since violence erupted on
December 30, 2007. Note that 3000 people were killed between 1992 and 1998 in
the state instigated clashes in the country. During that same period, more than
300,000 people were internally displaced, most of whom have not returned to
their farms and homes. In the month since the elections, an additional 300,000
people have been internally displaced.

7. Part of the reason why militia—on both sides—have been so potent and
dangerous is that they arose from the earlier violence of the 1990s and were never
de-mobilized. Nor was there a process to deal with the root causes of that
violence, with the Kibaki government choosing to sweep the matter under the
carpet, despite campaign promises to the contrary. With grievances bubbling and
fermenting close to the surface, it was relatively easy to reactivate the militia
using methods similar to those of the 1990s. Most important, the paymasters and
planners of the 1990s clashes were never held accountable.

8. It is estimated that in the month since the crisis started the Kenyan economy has
lost about US $3 billion and about 400,000 jobs. Moreover the crisis has severely
affected the economies of Uganda, Rwanda, Eastern DR Congo, and Southern
Sudan and could bring them to ruin if not checked. All these nations have a
history of conflict and violence that could be reawakened by economic collapse.

9. We have observed 4 forms of violence:
i) Spontaneous uprisings of mobs protesting the flaws in the
presidential elections. These mobs looted, raped and burnt down
buildings in an anarchical manner.
ii) Violence organized by ODM-supporting militia in the Rift Valley
that was aimed at perceived political opponents. The initial militia
action attracted organized counter-violence from PNU supporters
especially in Nakuru, Naivasha areas of the Rift Valley, and
Nairobi.
iii) Excessive use of force by the police in ways suggesting “shoot to
kill” orders against unarmed protesters mainly in ODM strongholds
including Kisumu, Kakamega, Migori, and the Kibera slum of
Nairobi. Policing has been uneven in its implementation. In some
strong ODM areas, the police have been shooting to kill, while
when confronted with pro-PNU militia, they have opted to negotiate
with the groups. However, in the Eldoret area, the police largely
stood by and watched as pro-PNU supporters were killed and their
houses burnt.
iv) Local militia in pro-PNU areas, on receiving internally displaced
persons (IDPs) from the Rift Valley, have mobilized in sympathy
and turned on perceived ODM supporters, killing them, and burning
their houses.

10. The violence is neither genocide nor ethnic cleansing: The root of the problem is not that
different ethnic groups decided they could no longer live together. The root of the
problem is the inability of peaceful means to address grievances. For this to be genocide
there would have to be either state complicity or state collapse and the first obligation
would be for the state to provide adequate security for those at risk. Instead we have
uneven and selective policing with emphasis on preventing Raila Odinga from holding
protests in Nairobi rather than protecting IDPs and others at risk across the country. We
therefore believe that the quickest and most effective way to reduce the violence is
progress in the current talks.

THE ELECTION TRIGGER
11. It is clear that the flagrant effort to steal the presidential election was the immediate
trigger for the violence. All independent observers have said that the tallying process was
so flawed that it is impossible to tell who won the presidential election. Since 1992,
Kenya’s elections have been progressively better and fairer, culminating in the 2002
elections which were the best ever, and the 2005 constitutional referendum. The effect of
this progression is that Kenyans finally believed in the power of the vote as a way of
peacefully resolving differences, a fact confirmed by voting trends in the recent
parliamentary elections that saw almost 70 percent of incumbents lose their seats. When
this sense of empowerment was subverted, and peaceful legal spaces for protests were
disallowed, it is not surprising that frustrations boiled over and violence ensued.

12. We have documented some of the facts and analysis that make clear that the flaws
in the tallying of presidential votes rendered untenable the conclusion that Mwai
Kibaki was validly elected.

13. With the benefit of hindsight, there were steps taken that paint a picture of a well
orchestrated plan to ensure a pre-determined result. These include:
i) President Kibaki’s decision to abrogate the agreement of 1997 on
the formula for appointments to the Electoral Commission ensuring
that all the Commissioners were appointed by him alone;
ii) An administrative decision within the ECK to give responsibility
to Commissioners for their home regions, something that had never
been done before, meaning that they appointed all the election
officials in the constituencies in their home regions, in a manner
that created conflicts of interest;
iii) The rejection of an offer from IFES to install a computer program
that would enable election officials in the constituencies to submit
results electronically to Nairobi and then on to a giant screen
available to the public making it virtually impossible to change
results;
iv) A decision to abandon the use of ECK staff in the Verification and
Tallying Centre in favour of casual staff provided by the
Commissioners directly; and
v) A refusal to ensure that election officials in areas with large
predictable majorities for any of the candidates came from different
areas so as to reduce the likelihood of ballot stuffing.

WAY FORWARD AND ROLE OF US CONGRESS
AND GOVERNMENT
14. At this “constitutional moment” that Kenya has reached, we believe the way
forward must be centred on truth and justice as the only sustainable road to peace
and development. This is the time for Kenya to end the impunity that has been a
feature of our history since independence, and also to end the “winner take all”
“first past the post” system. Specifically, we call for:
i) An international independent investigation into the 2007
presidential election process in order to come to closure on the
elections, find out who did what and why; who ordered it; and
promote accountability;
ii) An international independent investigation into the post election
violence—from citizens and police--so that there is accountability
on all sides.
iii) An interim transitional government to be formed with limited
powers of governance and for a limited time--between 1 and 2
years—with Kibaki and Odinga exercising equal powers.
iv) The primary duties of this interim government should be to
undertake constitutional reform, and especially explore ways of
reforming the current Imperial Presidency; motivate electoral
reforms, police reforms, judicial reforms, land reforms, civil service
reforms, devolution of power; and conduct new elections at the end
of its term.
v) The interim government should also be charged with cooling
passions and starting the process of reconciliation through a Truth
Justice and Reconciliation Commission that starts operations
immediately after the new elections. It is important that presidential
elections be held at the end of the interim government to inspire
confidence in Kenya’s electoral processes, and as a sign of the new
Kenya.
vi) It is also important to note that significant work in all of these areas
of reform has already been done in various constitutional drafts and
also by Government Commissions and Task Forces so Kenya would
not be starting from scratch.

15. To ensure that there is good faith in the mediation it is imperative that the U.S.
Government work with the rest of the international community to maintain pressure on
Kenya’s leaders to treat the mediation with utmost seriousness. To this end, we welcome
U.S .leadership in raising the crisis in Kenya at the UN Security Council, and call for
pressure at this level to be maintained and increased.

16. We also urge Congress to request the release of the exit poll conducted by International
Republican Institute (IRI) without delay so as to maintain pressure on all sides to
negotiate in good faith. In addition, we urge Congress to work with the EU to have the
EU Observation Mission Report released immediately.

17. In case of continued intransigence from any of the parties we call on Congress to impose
travel bans on the hardliners on both sides and especially those implicated in instigating
violence whether through militia or through the police. These travel bans should extend
to hardliners in the civil service and to their immediate families.

18. Moreover, assets of the hardliners and those involved in violence should be traced and
the assets frozen.

19. Finally, it is important that U.S. military and security assistance be frozen immediately.
All US assistance to Kenya should be channelled through non-governmental sources.
Thank you for this opportunity to address these matters affecting democracy,
peace and security, not just in Kenya but also in the East African region.