ISS Seminar Report: Revisiting the Question of Election-Related Violence and Government Mitigation Strategies
Introduction
Kenyan
politicians are jostling for political space and vantage positions ahead of the
much-anticipated 2013 elections. However, the question on the minds of many is:
will the next poll threaten the integrity and security of the state, as was the
case with the last one? The infamous 2007/08 post-election violence resulted in
the death of at least 1 300 people, the displacement of hundreds of thousands
and an unprecedented destruction of property. While some attributed the
violence to inflammatory rhetoric by politicians campaigning for political
office, the situation was compounded by inadequacies in institutions charged
with overseeing the electoral process and endemic socio-economic and political
problems, some of which were/are historical in nature.
While
the current coalition government has instituted a number of important reforms,
including the promulgation of a new constitution, there is a sense of
trepidation, in part because of the fear that the events of 2007/08 might
recur. The continued ethnic cleavages and a sense of ‘unfinished business’ for post-election
violence victims have given rise to reservations around the next elections. This
seminar sought to assess the efforts undertaken so far by the Kenyan government
to prevent, control and eradicate incidences of impunity and political
violence. It specifically sought to examine whether or not the government had responded
adequately to questions of post-election impunity. The seminar’s purpose was to
promote mechanisms for early warning, early response and conflict prevention in
view of Kenya’s forthcoming elections. Chaired by ISS senior researcher
Kisiangani Emmanuel, the seminar brought together three speakers: Kennedy
Masime, the Executive
Director, Centre for Governance and Development and Chairman, Elections
Observation Group (ELOG); Willis Otieno, Advocate
of the High Court and Programme
Manager, Electoral Institute for Sustainable Democracy; and Dickson
Magotsi, Deputy Chair, National Steering Committee
(NSC) on Peace Building and Conflict Management Committee, Office of the
President, Kenya.
Presentations
First presenter
Kennedy Masime’s presentation was titled ‘Election violence in Kenya: an assessment
of government mitigation strategies ahead of the 2013 general elections’. He began by underscoring the importance of regular, transparent and
credible elections as a key element in consolidating democracy. He then used Galtung’s
typologies of direct and indirect/structural violence to explain the root
causes and triggers of Kenya’s post-election violence. The root causes, he said, included the failure to carry out democratic reformsto address fundamental governance problems such as the
concentration of power in the institution of the presidency (the imperial
presidency), the highly centralised state structure that skewed the
distribution of resources, and historical land issues, among others. The triggers, he observed, included
the spreading of hate speech by some
vernacular FM stations; perceptions around the impartiality of the
defunct Electoral Commission of Kenya (ECK), especially the way it handled
allegations of rigging of the presidential vote; the police’s excessive use of force, including the shoot-to-kill
policy in response to public
demonstration’ the hurried swearing in of the president; and the absence of credible legal recourse to settle
the dispute peacefully.
Masime
noted that post-election violence broke out in six of Kenya’s eight provinces. He distinguished four
categories of violence that ensued: spontaneous uprising by mobs protesting flaws
in the presidential vote; pre-planned violence organised by the then opposition
and tribal leaders, especially in the Rift Valley, targeting members of the
Kikuyu community; retaliatory violence organised by supporters of the incumbent
government; Kikuyu militias targeting ‘migrant’ Orange Democratic Movement (ODM)
supporters in places like Naivasha; and excessive use of force by police using
the shoot-to-kill policy. The violence, he observed, severely affected the
economies of Uganda, Rwanda, the eastern Democratic Republic of Congo (DRC) and
the then southern Sudan.
Masime said mitigation
strategies included the establishment of the National Dialogue and
Reconciliation Committee (NDRC) under the chairmanship of Kofi Annan, which mediated
the political stand-off and proposed a raft of other constitutional, legal and
political measures such as the appointment of special commissions to
investigate the root causes and immediate triggers of the violence. Among the
various measures recommended by these commissions were constitutional reforms
to decentralise the state and executive power, judicial reforms to secure the
independence of the judiciary, security reforms and electoral reforms. There
was also the formation of the National Cohesion and Integration Commission (NCIC)
and the convening of the National Peace Conferences. Masime argued that there had
been challenges to many of these mitigation strategies; key among them the failure
to establish a special tribunal to prosecute crimes committed as a result of
election violence. Although the International Criminal Court (ICC) prosecutor
had taken over some of the cases involving those perceived to have had the
greatest responsibility, Masime noted that at the local level, very few cases
had been successfully prosecuted so far. He added that the delays in
implementing the National Police Service Commission (NPSC) Act, the National
Police Service (NPS) Act and the Political Parties Act, as well as contention
over boundaries delimitation and ineffective media regulation, were a
reflection of the challenges to the implementation of reforms and mitigation
strategies. To Masime, the recent attempts by the political class to pass
miscellaneous amendments that undermined sections of the new constitution were a
major setback to reform achievements realised so far.
In his concluding remarks,
Masime observed that the structural causes that had led to post-election violence,
i.e. poverty, inequality, issues relating to land, etc., remained largely
unaddressed. But this, he said, did not necessarily mean there would be
violence during the upcoming elections since there could extenuating factors such
as reforms to the electoral body, among others, which may limit trigger causes
of violence. To illustrate this, he used the analogy of living in a house made of
timber and observed ‘you can still avoid a fire by fireproofing, putting in
place smoke [alarms] and mitigate its effects by undertaking regular fire
drills, installing hydrants etc.’.
Second presenter
Willis
Otieno’s presentation was titled ‘Interrogating the
electoral laws and their impact on peaceful elections’. He began by describing
electoral events that, to him, were catalysts of the 2007/08 election-related violence. These included voter registration,
inspection of the voter register, the location of polling stations and
appointment of agents. In addition to these, he said other causes included weak
institutions set up to manage the electoral and political process, weak
electoral dispute resolution mechanisms, the unilateral constitution of the Electoral
Management Body (EMB) by a key player in the
elections (the then incumbent president), a lack of transparency in the
electoral processes, a lack of clear
guidelines on boundary delimitations, administrative weaknesses in the Electoral
Commission, which also lacked an operationalising act, and inadequate
enforcement mechanisms of the existing laws.
Otieno pointed out that since the 2007/08 election violence, a
number of laws had been drafted and set up to mitigate the causes and factors
that influenced the election violence. He said the legal framework in enacting
these laws was based on the constitution (chapter seven and eight), the Independent
Electoral and Boundaries Commission Act 2011, the Elections Act 2011, the Political
Parties Act 2011 and the National Cohesion and Integration Act (whose mandate
includes the regulation of hate speech), judicial mechanisms to punish offenders
and the administrative mechanisms to settle disputes.
He noted that the new changes provided by the constitution were enshrined
in the principles of the electoral system (article 81). An independent electoral
management body was set up through a transparent process where the
commissioners were publicly vetted to ensure public confidence. In addition, he
said, reformed dispute resolution processes had been established to ensure that
election-related disputes were settled within a certain timeframe to prevent
delays and unresolved cases. The new constitution, he said, also ensured that specific
provisions were met on the swearing-in of the president and resolution of
presidential election disputes. The enhanced thresholds enacted before one can
be declared an elected president will be important in judging the credibility
of the election results. However, he faulted the constitution for not
addressing all issues in the event of a presidential run-off vote. According to
Otieno, the constitution should have analyzed all possible scenarios to prevent
uncertainties when conducting the run-off, including a scenario where one of the
presidential candidates is contesting that he/she deserves to be in second
place and to participate the run-off. He observed that the Independent Election
and Boundaries Commission (IEBC) would have to come up with laws to handle this,
as there was no provision in the constitution to deal with it. He also noted
that the enactment of the principles of delimitation of constituency boundaries
implemented by the IEBC was a difficult task. According to the new
constitution, those responsible for drawing up boundaries should analyse the
geography, community interests, natural resources and the population quota of a
region in determining the boundaries. However, the new constituencies provided
by the IEBC have resulted in heated debates on the boundaries of counties and
wards. He added that currently there were over 100 court cases petitioning the
decision of IEBC in determining boundaries. The hearing of these cases, he said,
might contribute to determining the election date, the state of violence and
the outcome of the next general election.
Under the newly enacted Elections Act and IEBC Act, the IEBC
should ensure continuous registration of voters and an inspection of voter
register that should be done one month before the elections. Otieno argued that
the lack of identity cards among youths in some areas in Kenya was a way of
deliberately ensuring that the youth were locked out of the voting process. He
added that while the Elections and IEBC acts also require voter education in
order to ensure that the voters were aware of pertinent voting issues, adequate
voter education had, so far, not been done. On prosecuting election violence
offenders, Otieno said that the new constitution had given the IEBC powers to
prosecute them, but the challenge was the blame game between the police and the
IEBC on who should investigate and initiate prosecutions. Other
electoral laws discussed by Otieno included the newly laid
down procedures for counting, tallying and announcing results, the timeous
resolution of electoral disputes, the Electoral Code of Conduct and the integration of
technology into the electoral process.
In
his concluding remarks, Otieno observed that as much as the new electoral laws
had brought a breath of fresh air into the electoral process, Kenya still faced
considerable threats to peaceful elections. These include a weak statutory set-up susceptible to Kenya’s fluid
political environment, weak enforcement mechanisms to the legal framework, certain
unconstitutional provisions in the Acts developed, delimitation of electoral
units, lack of enabling regulations to the laws already in place, lacunae in the
resolution of first-round presidential disputes, potential logistical
nightmares due to the elections being carried out at six different levels and
being the first under the new constitution, transitional election
setbacks, political polarization along ethnic lines,
the Mombasa Republican Council (MRC) problem in the Coast Province, the ICC
process (depending on how it is handled), the unreformed security system and contestations
over emerging resources in different counties (e.g. Konza City, Turkana oil and
the Turkwell power plant).
Respondent
In his response, Dickson Magotsi began by observing that while
there was hype around the new constitution, reforms needed time to be implemented.
He noted that Kenya had a tall order since the country was no longer viewed as
‘an island of peace’ as had been the case before the 2007/2008 post-election
violence. To illustrate this he used the Global Peace Index, which, he noted,
showed that Kenya had dropped from number 91 in 2007 to 120 in 2012.
Magotsi expressed confidence in the level of preparedness of the
IEBC as the country approached the upcoming elections, noting the IEBC’s preparatory
efforts, including holding mock elections in Malindi and Kajiado (although in
the former case the process was disrupted by alleged MRC supporters). In
response to the issue of Kenya’s divisive politics and negative ethnicity,
Magotsi defended the government’s efforts, observing that different
institutions had been set up to mitigate the possibility of violence and to promote
reconciliation. He added that the NSC had done a mapping exercise and
established ‘high risk’ areas in a number of geographic areas that needed
focused attention from government, noting that pockets of ‘criminal gangs’ like
the MRC, especially the way they were manipulated by politicians during
elections, might contribute to election-related violence. In regard to internally
displaced persons (IDP), Magotsi said the integration and reconciliation process
was still fluid and much needed to be done to bring together the different
communities. The problem of small arms, he said, also needed to be addressed
before the elections, particularly given reports of increased movement of these
arms in the region. He noted that the NSC was raising
awareness on the subject and hoped that a disarmament process would be
conducted in a civil and effective manner. Magotsi
agreed with earlier speakers about the need for increased civic education,
especially at the grassroots level, to help more Kenyans to understand the
devolution system of government. He supported the idea of finding a quick
win-win solution to the court cases that are disputing the boundary delimitation
process and urged civil society to cooperate with the NSC to ensure that there was
timely and adequate early warning information to preempt incidences of
violence. To that effect, he said, the NSC had been working with one of the
local telecommunication companies to provide an SMS facility where Kenyans could
report crucial information on early warning signs. Additionally, Magotsi said
the government had been holding national conferences on peace, but emphasised
that peace building was not a monopoly of state actors but rather a
collaborative effort. Through the Uwiano
(Kiswahili for cohesion) peace platform project, the government, he said,
together with other actors including the IEBC and the NCIC, have set up an
initiative to monitor hate speech. This has also involved engaging with the
media through training on reporting and dissemination of sensitive information
to ensure that the media is well equipped to report sensitive news. In
conclusion, Magotsi said that while there was a lot of pressure on the IEBC to
deliver, the onus was on all Kenyans to vote for competent and reliable
leaders.
Question and Answer Session
Here a number of issues were raised. These included
uncertainties over the election date and the possibility of this leading to
tensions, to which Otieno responded by saying that while the IEBC had set the
date for 4 March 2013, there were those urging for the elections to held in
December this year. He observed that given the issue of logistics and the cases
in court over the boundary delimitation process, it might be wise to let the
election date remain in March 2013. On his part, Masime reiterated that there
was not enough time to hold elections in December since even the voter
registration process had not started. He cautioned against the suggestion of dissolving
the coalition government to facilitate elections in December, observing that it
could be used to avert free and fair elections, especially if the IEBC was ambushed
with elections when it was not ready. On the question
whether the winner of the run-off presidential vote has to obtain 50 per cent
plus one and 25 per cent in more than half of the counties as is the case with
the first round, Otieno explained that for the run-off, the ‘first-past-the-post’
rule applied and that there were no other requirements.
There was also a question on why the government had not set up a
local tribunal to prosecute en masse local perpetrators of post-election
violence, to which Otieno responded by saying the government feared politicising
the issue, especially when it came to arrests. He referred to the post-election
period when politicians blamed their opponents while defending youths arrested
over post-election violence by arguing that they were fighting for a just
cause.
One participant raised the issue of the MRC and all the speakers
agreed that if this group was not handled properly, it could result in election-related
problems in the coastal region. Otieno cautioned against deploying heavy
security at the coast on the day of voting as this could intimidate voters. He
maintained that long-term solutions to the MRC problem lie in empowering the
coastal people and addressing the group’s underlying grievances. Magotsi added
that dialogue with the group was the way to go and that the government through
the parliamentary committees and the NCIC had embarked on engaging with the group.
On questions relating to laws enacted and the lack of
political will to implement them, speakers emphasised the need for vigilance
from Kenyans to ensure that Members of Parliament and the executive did not
water down the reform agenda.
One
participant sought to find out how the various stakeholders engaged in
monitoring conflict in Kenya were able to standardise their methods and ensure
that their reports were reliable, to which Magotsi replied that conflicts could
be very dynamic, resulting in the need for changes in approaches, although he
emphasized the need for coordination, which he said was currently being done under
the Uwiano initiative to ensure that
information was shared and that there was standardisation of statistics.
Concerns
were raised regarding the subject of civic education and whether it was
effective, especially at grassroots level, to which Masime responded by saying
that there was not enough time for effective civic education although a number
of civil society organisations had gone to the ground to disseminate simplified
information, including on the new constitution. Speakers noted that there had,
nonetheless, been a delay by the IEBC in starting civic education.
Prepared
by Lewela Mashaka
