HUMAN RIGHTS ABUSE IN KENYA UNDER
DANIEL ARAP MOI, 1978-2001
Korwa G. Adar
and Isaac M Munyae
Jomo Kenyatta, the founding president of Kenya, passed away in August
1978 after fourteen years as head of state. His successor, Daniel Arap
Moi, served as Kenyattas vice-president from 1966 - 1978. During Kenyatta's
presidency, the political realm was dominated by a small Kikuyu elite,
the so-called Kiambu Mafia, from Kenyata's home district. This group
undermined Kenyatta's nationalist and populist background, alienating
other ethnic groups, as well as many non-conforming Kikuyus. Although
Moi was loyal to Kenyatta, he was never accepted into Kenyatta's inner
circle. He also came from a small community--the Kalenjin. He was regarded
by Kenyans to be the right candidate to steer the country towards a
more accommodating human rights era, without ethnic dominance.
This general perception of Moi by Kenyans was reinforced by the decisions
and promises he made immediately he took over the presidency. In December
1978 Moi released all twenty-six political detainees across the ethnic
spectrum, most of whom had been languishing in jails for years.1 He also reassured Kenyans that his administration would not condone
drunkenness, "tribalism", corruption, and smuggling, problems
already deeply entrenched in Kenya.2 His administration
also took quick actions against top civil servants accused of corruption,
culminating in the resignations of officials including the Police Commissioner,
Bernard Hinga. These actions were interpreted by Kenyans as an indication
of the dawn of a new era, a conducive environment for adherence to democracy
and human rights.
In due course, however, Moi became more interested in neutralizing those
perceived to be against his leadership. The issues of corruption, "tribalism"
and human rights per se became distant concerns. Instead, Moi began
to centralize and personalize power when he took over the presidency.
He pledged to follow Kenyatta's nyayo (Swahili for "footsteps").
He wanted ordinary Kenyans to perceive him as a true nationalist in
his own right, and as a close confidant of Kenyatta. He traveled constantly
throughout the country addressing many prearranged or ad hoc public
gatherings. He popularized nyayo within the context of what he called
"love, peace and unity".3 His grand design
turned out to be a strategy geared toward the achievement of specific
objectives, namely, the control of the state, the consolidation of power,
the legitimization of his leadership, and the broadening of his political
base and popular support. It turned out this strategy called for little
respect of human rights.
Initially, Moi's ascendancy to the presidency faced a major handicap
because of the dissension against his leadership from within the ranks
of the ruling party, Kenya African National Union (KANU). This came
from the influential "Kiamba Mafia" that had constituted themselves
into what became known as the Change the Constitution Movement.4
The main objective of the movement was to bar Moi from taking over the
presidency. The group called for the amendment of the Kenyan constitutional
clause which conferred rights on the Vice-President to take over the
presidency for ninety days pending the general elections should the
office of the president fall vacant.5 The movement
failed, mainly due to the opposition it faced from Moi's ally, attorney
general Charles Njonjo. Moi succeeded in assuming the presidency and
thereafter began to systematically institute an authoritarian and oppressive
one-man state rule.
Kenyatta's style of restraint and steering the country as a de facto
one-party state did not conform to Moi's leadership and behavioral characteristics.
Moi's style -- the centralization and personalization of power -- gradually
laid the foundation for a dictatorship and innumerable human rights
violations by his administration. When Jaramogi Oginga Odinga and George
Anyona sought to register a socialist opposition party in 1982, Moi
struck back by making the country a de jure one party state. He criminalized
competitive politics and criticism of his leadership.6
Throughout the 1980s to 1990s the security forces, particularly the
police, were used to suppress any criticism of his regime.
To ensure his grip on power, Moi systematically usurped the functions
of the other institutions of governance to the extent that the principle
of the separation of powers was rendered ineffectual. A few days after
releasing all the political detainees, he rushed a bill through Kenya's
parliament which granted the president emergency powers for the first
time in Kenya's post-independence history. Moi associated insecurity
and instability with open criticisms and challenge to his policies and
style of leadership. Patronage and loyalty therefore has remained characteristic
of Moi's leadership style which has enabled him to centralize and personalize
his rule.7 For more than two decades as Kenya's head
of state, the second longest serving president in Sub-Saharan Africa
-- Moi has remained what has been described as a "tribal paramount
chief writ large".8 In return for patronage,
he enjoys praise from civil servants and KANU officials to an embarrassing
degree. For example, in one of the numerous public functions he attended,
a senior minister stated while pointing at him: "There, is enshrined
in human form the popular will ... Even lobsters and fishes of the sea,
out to the 200- mile limit and even beyond, pay obeisance to our great
president the Honorable Daniel Arap Moi."9
This article deals with the manner in which the autocratic patronage
system established by Moi has undermined the rule of law and respect
for human rights in Kenya. It is an authoritarian system in which the
president delegates no responsibilities and becomes personally involved
in almost everything in the country, particularly issues concerning
the rights of individual Kenya citizens to speak their minds, assemble
without hindrance, write and publish without being molested.
THE INSTITUTIONALIZATION, CENTRALIZATION AND
PERSONALIZATION OF THE PRESIDENCY
The trend began with presidential directives and constitutional amendments.
Apart from the Constitution of Kenya, Amendment Act, Number 7 of 1982,
which introduced Section 2(A) transforming the country into a de jure
one-party state, Kenya's parliament, on Moi's order, reinstated the
detention laws which had been suspended in 1978. Colonial era laws,
like the Chief's Authority Act, the Public Order Act, the Preservation
of Public Security Act, the Public Order Act, and the Penal Codes, gave
the president the right to suspend individual rights guaranteed by the
constitution.10 The parliamentary privilege, which
gave representatives the right to obtain information from the Office
of the President, was also revoked. This meant that members of parliament,
and by extension their constituents, surrendered their constitutional
rights to the presidency. Parliamentary supremacy became subordinated
to the presidency and the ruling KANU party.11
For the first time in Kenya's post independence history, the provincial
administrators (Provincial Commissioners[PCs], the District Commissioners[DCs],
and District Officers [DOs]) who are civil servants, were directed by
the Office of the President to get involved in the internal affairs
of KANU. They were to review and clear party meetings throughout the
country and to isolate dissenters. KANU officials and members of parliament
henceforth were subjected to these administrative procedures, undermining
the meaning and legitimacy of representation in Kenya's legislature.
These reorganizations and restructurings had a number of implications.
First, the structures of representation both within KANU and parliament
were obscured. The provincial administration now had the power to prevent
an elected member of parliament from addressing his or her own constituents.
Second, patronage and loyalty to the President became mandatory for
one's political survival. In the 1988 general elections most members
of parliament were not elected but selected by the party.12
One of the first victims to fail the loyalty test was the man behind
Moi's smooth ascendancy to the Presidency, Charles Njonjo, then attorney
general and minister for constitutional affairs, who was accused of
plotting to overthrow Moi's government.13 Third,
those perceived to be against the President and KANU policies were denied
the right to contest electoral seats.
By 1981 all the ethnic-centered welfare associations had been banned.
These included the Luo Union, the Gikuyu, Embu, and Meru Association
(GEMA), and the Abaluhya Union. The president also outlawed the Civil
Servants Union (CSU) and the Nairobi University Academic Staff Union
(UASU). In 1986 Moi gave a directive for the Maendeleo Ya Wanawake Organization
(MYWO), a national non-governmental organization for women, to be affiliated
to KANU, and in 1987 officially changed its name to KANU-MYWO.14
The Central Organization of Trade Unions (COTU), the umbrella body for
most of the trade unions in Kenya, had been an ally of KANU for more
than two decades, with most of its top leadership frequently selected
by KANU, particularly in the 1980s to 1990s. These changes strengthened
party-state relations and solidified presidential control of the state.
Between 1964 to 1990, twenty-four constitutional amendments were enacted
by parliament, all intended to strengthen the presidency at the expense
of civil rights.
On the 1st of August 1982 there was a military coup attempt by some
junior Kenya Air Force officers. It was put down at an estimated 600
to 1,800 lives. This accelerated the process of the control of the state
and solidified Moi's authoritarian rule.15 In 1986
parliament enacted Act No. 14 followed in 1988 by Act No.4, imposing
limitations on the independence of the judiciary, with far reaching
human rights violations. Sections 61(1) and (2) of the Constitution
empower the president to appoint the chief justice and puisne judges
respectively upon the recommendations of the Judicial Services Commission
(JSC) which is also appointed by the president. The 1986 and 1988 constitutional
amendments provided for the removal of the security and tenure of the
Attorney General, the Controller and Auditor General, the judges of
the High Court and the Court of Appeal. Parliament, which at this time
was under the control of the executive arm of the government, did not
resist these amendments. The control of parliament and the judiciary
meant that the office of the president was in a position to manipulate
the functions of the two branches of the government. Both Parliament
and the Judiciary ceased to have the constitutional rights to control
the excesses of the executive. There were no checks and balances on
Moi's personal authority.
Two major events happened before Act 14 of 1986 was passed in Parliament
to symbolize the unchecked power of the executive. In his ruling in
a case in which an American marine had murdered a Kenyan woman in Mombassa,
a judge found the accused guilty but fined the marine only Kenyan shillings
500 (about $50) and bonded him for one year probation.16
The issue was raised in parliament thereafter because of the light sentence
imposed by the judge. The then Attorney General, James B. Karugu, as
the chief legal advisor to the government, responded by criticizing
the decision of the judge. He did not last long in his position. After
that, the Controller and Auditor General questioned why a state owned
corporation engaged the services of a private lawyer in this particular
case.17 His office became the object of executive
branch criticism. Moi interpreted both of these actions as direct threats
to his leadership and thus pressured parliament to enact the amendments
to give him more authority over the judiciary and the audit department.
The police had, through Act 14 of 1988, the prerogative to detain the
critiques of the regime for fourteen days while coercing them into submission.
By this time parliament was functioning largely as a rubber stamp of
policies initiated by the presidency.
President Moi's control of parliament thereafter was extended to elections.
The "Queue" voting system introduced by KANU in 1986 replaced
the secret ballot with a system where voters lined up behind candidates.
Those parliamentary candidates who secured more than 70 percent of the
votes did not have to go through the process of the secret ballot in
the general elections. This system encouraged electoral rigging and
paved the way for what has been described elsewhere as "selection
within an election". In a situation where there was a dispute over
head-count, a repeat of the same process was not possible at the end
of the exercise.18 The provincial administrators,
who were the election officers, were only answerable to the presidency
and they declared as winners only those candidates favored by the regime.
Disputes arising out of nominations were often refereed to the president
personally as the final arbiter over matters pertaining to the only
political party in the country. Kenyans thus lost their right to vote
for parliamentary candidates of their choice.
The judicial system could not protect human rights either. The British
judges who have continued to serve Kenya as part of the British overseas
development aid are more susceptible to the manipulation than their
Kenyan counterparts because they are seconded on contracts.19
Under the terms of the agreement between Kenya and the United Kingdom,
the renewal of contracts were at the discretion of the Kenya government.20
A former British expatriate judge in Kenya, Eugene Cotran, openly stated
that in cases in which the president has direct interest, the government
applied pressure on the expatriate judges to make rulings in favor of
the state.21 It was as a result of similar circumstances,
that two expatriate judges, Justices Derek Schofield and Patrick O'Connor,
resigned because of what they called a judicial system "blatantly
contravened by those who are supposed to be its supreme guardians".22
Interference with the judicial process in the late 1990s, with respect
to "political" cases, rose to a new high. At a workshop held
at Mbagathi (Nairobi) in April 1995, Judges Bena Lata and William Mbuya
accused the government of interfering in cases that were then in court.23
The attempts by the Law Society of Kenya (LSK) to achieve the repeal
of the restrictions and to handle legal cases in the courts of law without
interference and intimidation landed some of the outspoken lawyers in
detention in the 1980s. In 1990, the Office of the President succeeded
in manipulating the LSK elections which saw its sponsored candidate,
Fred Ojiambo, defeating the pro-multiparty supporter, Paul Muite, for
the chairmanship.24 This move was designed to control
the legal profession by the state.
To bolster his grip on power, Moi also embarked on the gradual Kalenjinization
of the public and private sectors from the 1980s. Moi is a Tugen, one
of the smaller Kalenjin ethnic groups. He began to "de-Kikuyunize"
the civil service and the state-owned enterprises previously dominated
by the Kikuyu ethnic group during Kenyatta's regime. He appointed Kalenjins
in key posts in, among others, Agricultural Development Corporation
(ADC), Kenya Commercial Bank (KCB), Kenya Posts and Telecommunications
(KPT), Central Bank of Kenya (CBK), Kenya Industrial Estates (KIE),
National Cereals and Produce Board (NCPB), and the Kenya Grain Growers
Cooperative Union (KGGCU). He created Nyayo Tea Zones (NTZ), Nyayo Bus
Company (NBC) and Nyayo Tea Zones Development Corporation (NTZDC).25
The only remaining major worry for the presidency by 1990 was the church,
particularly the Anglican Church (then known as the Church of Province
of Kenya), the Catholic Church and the Presbyterian Church of East Africa,
which together account for over 70% of the Kenyan Christian community,
a majority of the population. Together with the umbrella organization,
the National Council of Churches of Kenya (NCCK), the church has persistently
and consistently used the pulpit to criticize Moi's authoritarian regime.26
What Moi has established over the years is a clear manifestation of
an institutionalized authoritarian regime with a habit of human rights
violations. It was not until the return of multiparty politics in Kenya,
after demonstrations in 1990, that the situation changed.
ASSASSINATION, REPRESSION AND DETENTION WITHOUT TRIAL OF DISSIDENTS
When the Kenya African Democratic Union (KADU), of which Moi was the
chairman, crossed the floor and joined KANU in 1964, Moi was appointed
by Kenyatta as the minister for home affairs. He became the Vice-President
in 1967, but kept the home affairs portfolio. The Kenyan police force,
which at the time of independence out numbered the national defense
forces, was under his jurisdiction as the minister for home affairs.
Kenya Police includes the Criminal Investigation Department (CID), the
paramilitary General Service Unit (GSU), and the Directorate of Security
and Intelligence (DSI). Moi therefore was exposed to the structure and
functions of the police force for fourteen years before he became president.
Under Kenyatta's instructions, Vice-President Moi invoked his administrative
prerogatives to detain Oginga Odinga and the other eight leaders of
the then opposition Kenya People's Union (KPU) in 1969 when that party
was proscribed by Kenyatta. Moi explained that the KPU leaders were
detained because "any government worth its salt must put the preservation
of public security above the convenience of a handful of persons who
are doing their utmost to undermine it".27
As the person in charge of internal security for fourteen years, he
established a network of supporters within the ranks of the intelligence
community. It was one of his counter-intelligence supporters, James
Kanyotu, who telephoned him when Kenyatta died in 1978.28
Detentions and political trials, torture, arbitrary arrests and police
brutality reminiscent of the colonial era have become common during
Moi's tenure. He perceives human rights generally as alien and Euro
centric conceptions inconsistent with African values and culture. He
views the pro-democracy and human rights advocates in Kenya as unpatriotic,
disloyal, and ungrateful individuals influenced by what he calls foreign
masters.29 A few years after taking over the presidency,
Moi began to exercise his style of authoritarianism by detaining a number
of Kenyans critical of his government. Table One indicates the extent
to which detention has been consistently used as an instrument for suppressing
Moi's outspoken opponents in the 1980s and 1990s. Some of these detainees
were former or sitting MPs arrested for demanding, among other things,
the introduction of multiparty politics.
After the university staff union was banned, University of Nairobi faculty
members, Willy Mutunga and Katama Mukangi, were detained for what Moi
called "over-indulgence in politics".30
This was just the beginning of the crackdown on Kenyans by his Administration
in the 1980s. Apart from detaining the UASU leaders, the passports of
lecturers considered to be critical of his rule were seized.31
Moi's actions were meant to silence the intelligent, perceived to be
critical of his authoritarian rule. The emergence of the little known
clandestine London based movement, Mwakenya, set the stage for more
widespread human rights violations by his Administration. In 1986 alone,
100 people were arrested and detained for their alleged association
with Mwakenya, the movement started by some Kenyans in Europe who had
fled Moi's oppression, demanded, inter alia, social justice and respect
for human rights.32 Even though Moi made a big issue
out of the movement, there was no tangible evidence of a well organized
group in the country that threatened Kenya's national security and which
would have warranted the massive arbitrary arrest, torture, and detention
without trial of the suspects. Moi used the same tactic when he denounced
the February Eighteenth Movement (FEM) which he accused of planning
attacks on Kenya to be launched from Uganda in the early 1990s.33
Between 1989 to 1991 Kenya saw one of the worst human rights violations
in its history. Moi accused advocates of multiparty politics of subversion,
and thereby got a fresh excuse for detaining a new generation of his
critics. A number of the champions of multiparty politics--John Khaminwa,
Raila Odinga, Mohammed Ibrahim, Gitobu Imanyara, Kenneth Matiba and
Charles Rubia--among others, were detained under inhuman conditions
and without trial. Human rights lawyers, Gibson Kamau Kuria and Kiraitu
Murungi, fled to the United States to avoid being jailed.
Arrests and detentions in fact followed every one of Moi's warning against
his critics. As has been the practice throughout his leadership, the
police moved quickly and arrested those in the forefront for democracy,
with the judiciary merely sanctioning what is commonly known in Kenya
as political cases.34 A case becomes political when
Moi makes a direct statement regarding the case in question even when
it has subjudice implications.35 The ruling against
the Universities Academic Staff Union (UASU) and its officials between
1993 to 1995 serve as good examples of the level of state interference
in political cases.36 The union which sought to
promote academic freedom and professionalism in Kenya universities was
defended by seven well known human rights lawyers: Pheroze Nowrojee,
James Orengo, Gibson Kamau Kuria, Paul Muite, Kiraitu Murungi, Otieno
Kajwang' and Kathurima M'Inoti, among others. The courts refused outright
to hear it while the police harassed its officials.
Suppression of freedom of the press, assembly, association, expression
and movement and other fundamental rights of individuals were extended
to the press, and non-governmental organizations. In 1991 Moi banned
the production of George Orwell's Animal Farm. He also banned Ngugi
Wa Thiong's play Ngaahika Ndeenda (Kikuyu for, "I Will Marry When
I Want") considered by the regime to be subversive because it attacks
post-independence African dictators.37
By this time detention and the violation of human rights were regularly
protested by civil society, with the church and the LSK taking the lead.
Since the 1980s the church had remained the central locus of dissent
against the Moi regime, with the pro-democracy and human rights movements
using cathedrals and the compounds of churches as venues for expressing
their views and drawing plans for action. But using the church as a
refuge did not deter the regime from arresting, assaulting and detaining
its critiques within church compounds. In one of his sermons, the late
Anglican Bishop Alexander K. Muge emphasized that the church has a moral
obligation to "protest when God-given rights and liberties are
violated" and to " give voice to the voiceless".38 Even though some politicians and the Office of the President condemned
his criticism of the queue voting system, Bishop Muge maintained that:
"I shall not protest against violations of human rights in South
Africa if I am not allowed to protest the violation of human rights
in my own country".39 Yet not even the clergy
was spared arrest by the police. The Presbyterian minister Rev. Timothy
Njoya was arrested in 1988 for suggesting that Kenyans should hold discussions
on critical questions affecting the country. Bishop Muge's death in
a car crash in August 1990 is still shrouded in mystery.
As demands for competitive elections and an end to detention without
trial continued, Kenya's Foreign Affairs Minister, Dr. Robert Ouko,
was assassinated in February 1990. Demands to reveal his real murders
amplified those for pluralism and respect for human rights. To save
his regime from collapse, Moi adopted even greater authoritarian tactics
arguing on a number of occasions that multipartism would cause chaos
in the country because Kenya was not "cohesive enough". Clergymen,
lawyers, and other pro-democracy and human rights advocates were persistently
arrested and harassed. The crackdown intensified during the Saba Saba
(July 7) 1990 meeting, organized by the pro-democracy and human rights
advocates. Some of these leaders later founded the Forum for the Restoration
of Democracy (FORD). The forum advocated an end to jailing dissenters
without trial. The attempt by the American embassy to broker a negotiated
permission for FORD to hold its first public meeting scheduled for 16
November, 1991 failed. The government refused to issue a permit and
instead arrested Oginga Odinga and Gitobu Imanyara. Masinde Muliro,
Martin Shikuku, James Orengo, and Paul Muite managed to go into hiding.
The FORD leaders, however, later went ahead with the meeting, but were
arrested by the police who forcefully dispersed the gathering.
Instead of ending detention, the government arrested leaders who then
were charged under section 5(10)(d) of the Public Security Act. The
Act states that "any person who prints, publishes, displays, distributes
or circulates notice of, or in any other manner advertises or publicizes,
a public meeting or public procession which has not been licensed under
this section, shall be guilty of an offense".40
The US Congress, concerned with human rights violations and corruption,
passed the Foreign Operations, Export Financing, and Related Programs
Appropriations Act of 1991 requiring Kenya to meet certain conditions
before $15 million in economic and military aid could be disbursed.41 These conditions were based on the provisions that Kenya "charge
and try or release all prisoners, including any persons detained for
political reasons; cease any physical abuse or mistreatment of prisoners;
restore the independence of the judiciary; and restore freedoms of expression."42
US Congressional concerns for human rights violations in Kenya gained
momentum in the 1990s, culminating in a fact finding mission to Kenya
by high ranking Senators and the release of Kenneth Matiba, Charles
Rubia, Raila Odinga, and Gitobu Imanyara.
At this point the KANU government tactically gave in. It agreed to repeal
Section 2A of the Constitution which made Kenya a de jure one-party
state. This decision paved the way for the formation of political parties,
namely FORD (Forum for Restoration of Democracy) led by the opposition
veteran, Oginga Odinga, and the Democratic Party of Kenya (DP) under
Mwai Kibaki. There were other smaller parties. By splitting their votes
against Moi's KANU, the opposition assured KANU a victory, albeit one
characterized by violent repression and unfairness at the polls. Violations
of human rights continued even under the conditions of a symbolic multi-party
HUMAN RIGHTS VIOLATIONS UNDER MULTI-PARTY RULE
When Kenya entered the second multi-party era it was assumed that by
allowing opposition to exist, the government would create an enabling
environment for its citizens to freely exercise their constitutionally
guaranteed rights. What resulted, however, was continuity in human rights
violations by the police, and government-supported armed militia and
hired thugs. The arbitrary arrests, detentions, and the practice of
the interference of the judiciary by the executive, also continued for
most of the 1990s.
In the early 1990s, the KANU government went as far as instigating ethnic
violence in order to portray the multi-party system as inappropriate
for Kenya. Ethnic cleansing was introduced in order to eliminate opposition
in "KANU-only zones." From various independent human rights
reports, the 1992 and 1998 ethnic violence in the Rift Valley Province
was deliberately inflamed for political purposes by members of the government.
Violence spread in the Likoni-Kwale (Coast Province) prior to and after
the 1997 general elections, in areas where opposition to KANU was strong.
The 1998 clashes were different from the previous ones in that this
time the Kikuyu community in the Rift Valley retaliated in an organized
fashion which the attackers had not anticipated.
Independent investigators again confirmed state complicity in these
1997 violations of human rights. A task force appointed by KANU as well
as a parliamentary committee reaffirmed the findings of the National
Christian Council of Kenya (NCCK) that the state was involved in widespread
ethnic cleansing in the Rift Valley.43 As ethnic
conflict and other forms of human rights violations intensified in the
early 1990s, the church issued statements protesting the government's
inaction in maintaining order and in stopping human rights violations.
In one of their pastoral letters addressed to Moi, the Roman Catholic
"Although our pleas, requests and advice ... seem to have been
ignored by you, we on our side will not abandon our responsibilities.
We have seen and heard of so much wickedness perpetrated in Kenya since
the clashes began. Innocent people, peaceful and humble, and even churches
and mosques have been attacked and destroyed. All these abominations
are done in your name, by some of your Cabinet Ministers, your DCs,
DOs, your GSU and your police."44
The use of militia to instigate violence on behalf of KANU and the
government began with the 1991-1993 ethnic clashes. To attack opposition
groups, "Kalenjin warriors" donned traditional attire and
used arrows from South Korea transported by helicopters.45
Political violence also occurred in 1997 and 1998 in the Rift Valley
Province, particularly in Trans Nzoia and Nakuru Districts. As in the
1992 ethnic clashes, the conflict was between pro-KANU supporters and
ethnic communities that were deemed sympathetic to the opposition.
According to human rights groups, the fact that the Provincial Administrators,
the GSU, and the police were involved in the conflicts again implicated
the state. An investigative report into the Likoni-Kwale violence of
August 1997, produced by the Kenya Human Rights Commission, for instance,
established that the causes of the violence were essentially the politicization
of the socioeconomic situation in the region by local politicians.46 The report implied involvement of the government in that Mombassa KANU
politicians, Rashid Sajad and Karisa Maitha, had paid a visit to an
armed militia training camp in Shimba Hills. They reassured young men
recruited from Uganda, Rwanda (mainly Hutus), and Ukunda (Coast Province)
that the government was not only behind but also supported the expulsion
of "up-country" people from the area.47
Apart from the assumption based on evidence that the clashes were not
being perpetrated by indigenous people, there are also other instances
that indicate that the government was either not concerned about the
human rights violations against opposition inclined ethnic groups or
it was behind the attacks. On January 27, 1998, a group of Catholic
priests and nuns, international journalists, and a unit of about thirty-eight
policemen witnessed a Kalenjin raid on a Kikuyu homestead near the junction
of Njoro and Molo in the Rift Valley Province. The police did not act
until the nuns ran after the raiders.48
As noted above, one of the main objectives of the regime in instigating
ethnic cleansing was to "prove" to Kenyans and the world that
multiparty politics was not suitable for a multi-ethnic country like
Kenya. Moi wanted to demonstrate that he is not willing to relinquish
power and control of the state. Indeed, he is fearful of the potential
consequences if he were to loose power because of the misdeeds and corrupt
practices associated with his regime. Despite a multiparty election,
detention, arbitrary arrests and torture of ordinary people -- particularly
the pro-democracy and human rights advocates and the opposition members
of parliament -- continued although at a declining rate throughout the
1990s. The continued arrests of members of parliament in particular
undermined the right of representation. Members of parliament have been
arrested for addressing "illegal" meetings even in cases where
such meetings are licensed by the government.49
In a report on Kenya submitted to the United Nations in 1993, the Committee
on Economic, Social and Cultural Rights (CESCR) stated that although
Kenya has been a party to the Convention since 3 January 1976, it had
not submitted a single report as stipulated under Articles 16 and 17
of the covenant. The committee also observed that there is no institutional
mechanism in Kenya responsible for the enforcement of human rights,
with the High Court performing no constitutional role in this regard.50
The state continued to interfere with court evidence as was shown in
the case of Koigi wa Wamwere who had been charged with subversion in
1994. His defense attorneys discovered that the Magistrate, William
Tuiyot, had interfered with the proceedings.51
Despite the pressure mounted by internal pro-democracy and human rights
groups, another type of repression came into the scene after the 1992
elections: informal repression by the state. This involved the use of
proxy agencies and groups to attack the pro-democracy and human rights
supporters. Although not new to Kenya, this became an important political
tool under Moi in the multiparty era.52 During the
December 1992 elections, and again in 1997, the KANU government used
its control over the instruments of coercion and the Electoral Commission
to place an undue advantage over the opposition. Private militia and
groups of thugs were used to disrupt opposition rallies.
At the same time, KANU adopted a number of strategies that undermined
free and fair elections in 1992 and 1997. Among them was lopsided voter
registration which excluded opposition voters, an Electoral Commission
of Kenya (ECK) that was biased, intimidation of journalists, and banning
of print media that is critical of the regime. The Provincial Administration
in both elections helped KANU undermine the opposition party's prospects
from gaining ground in the elections. The commissioners of the ECK were
appointed by the President alone despite protest by the opposition.
It the ignored protests of nearly four million eligible voters, (particularly
the youth who had attained the age of eighteen years) who were denied
registration in 1992.
Voting in 1992 and 1997 was characterized by the suppression of voters'
rights by the government in 1997. It was reported that in the Likoni
polling stations in the Coast Province, "up-country" people
could not vote because their names did not appear on the register, even
though they had viable voter registration cards. In one incident, an
"up-country" lawyer working in Mombassa insisted on checking
the register and actually found his name.53 The
ECK was taking advantage of people's ignorance to ensure a KANU victory
at the coast and elsewhere. Journalists were ill-treated and attacked
by police for reporting these incidents. In February 1997, for instance,
Susan Mosoke, a photographer, was assaulted by an administration policeman
when covering a story on the deliberate delay in the issuance of identity
cards so that people would not be able to register for voting.54
In the build-up to the 1997 elections, opposition demonstrations in
favor of constitutional reforms to ensure free and fair elections were
met with police beatings. Under external donor pressure, some amendments
were made and enacted in November 1997, however, the police continued
to contravene the constitution by violating the rights enshrined in
the constitution. The reform champions demanded repeal of the Preservation
of Public Security Act, sections of the Penal Code dealing with sedition
and treason, the Public Order Act, the Chiefs Authority Act, the Administration
Police Act and the Societies Act.55 These were laws
used to lock up and detain human rights campaigners and pro-democracy
activists. These reforms were actively supported by church groups, opposition
parties, human rights organizations, and other NGOs under the forum
of the National Convention Assembly (NCA). They challenged the impartiality
of the Electoral Commission, decried restrictions on opposition parties,
and demanded unhindered access to the broadcast media and a fair registration
These reforms were the result of negotiations by an inter-party forum
known as the Inter- Parties Parliamentary Group (IPPG). It made recommendations
to Parliament and some laws were indeed changed.57 The Public Order Act gave way to a measure of freedom of assembly as
long as police were notified by organizers of public gatherings. The
police could now prevent the holding of a meeting if notice of another
meeting had been received and there was a conflict. However, the police
are still authorized to stop or prevent the holding of a meeting if
no notice has been given, or if another meeting in the same venue presents
"clear or imminent dangers of the breach of peace or the public
order."58 The police subsequently used this
clause to stop meetings deemed as likely to undermine the ruling party's
authority. The authority of the chief to regulate the movement of persons
from the jurisdiction of one chief to another--another act violating
the right of free movement--was repealed in the amendments to the Chiefs'
Act. However, the local administration still practices the power of
arrest and detention.
In May 1998, a meeting by KANU and opposition MPs at Kwanza (Rift Valley
Province) was declared illegal. The police beat politicians, journalists,
and the general public to prevent the rally.59 A
subsequent opposition public meeting was invaded by thirty armed raiders.
The police reportedly did nothing to stop the raiders. On January 16,
1999, during vote counting of a by-election in Eastern Province, police
used wooden clubs and batons to disperse a crowd outside the vote counting
hall. They were protesting the announcement of a narrow victory by the
KANU candidate based on the counting of the contested ballot boxes.60
The police entered the hall and beat up opposition MPs. On June 10,
1999, police resorted to tear gas and force to break up a public rally
by KANU and opposition MPs at Machakos, Eastern Province, who had met
to discuss issues of concern to the Kamba people.61
On February 26, 1999, police used tear gas and police dogs to stop MPs
and farmers from holding a public rally at Eldoret, Rift Valley Province.
In this context, police brutality was directed towards leaders who wanted
to discuss the problems their constituents were facing; the government
perceived this as criticism.
Despite the presence of a vocal opposition in parliament since 1992,
the judiciary has contributed to the consistency and continuity of the
human rights violations. Victims of human rights violations are thus
left without judicial protection, the High Court having decided that
it has no jurisdiction to enforce the human rights provisions of Chapter
V of the Constitution, even though section 84 of the Constitution provides
for redress before the High Court for violation of any of its provisions.62
Undue interference with the judiciary by the executive branch in matters
of appointment continued with the presidency playing a major role.
Judges who made rulings in favor of human rights victims exposed themselves
to punitive transfers. In September 1994, a chief magistrate was transferred
to Kitui, Eastern Province (130 km. from Nairobi) after he refused to
accept as evidence the confession of six men accused of raiding the
Ndeiya Chief's Camp near Nairobi. The appointment of Bernard Chunga
(formerly the chief state Prosecutor) as Chief Justice by Moi in September
1999, was widely criticized by the human rights lawyers as an attempt
to further reduce the independence of the judiciary. Chunga was seen
as personally loyal to the President.63 In July
1999 the High Court dismissed a petition case filed by Mwai Kibaki,
the leader of the Democratic Party, against Moi for rigging the 1997
presidential elections through the Electoral Commission. The case was
dismissed on a technicality that Kibaki failed to submit a copy of the
petition to Moi personally.64 The truth was that
Democratic Party lawyers had been denied personal access to Moi's office
by his security guards.
The existence of a strong opposition did not help the justice system.
In 1999 Moi stated that courts should not interfere in land matters,
affairs of public universities, or issues relating to political parties.65 This can help to explain the reason why the courts have handled the
political cases in the manner they did. In March 1997, the Chairman
of the Kenya Judges and Magistrates Association (KJMA), stated that:
"these pronouncements clearly threaten the rule of law, the independence
of the judiciary, and the constitutional doctrine of separation of powers."66
The war-mongers in the ruling party were again protected by the ruling
party as they urged violence against the opposition supporters during
and after the 1997 elections. At a KANU rally in Narok, some pro-Moi
members of parliament threatened DP supporters with reprisals after
Kibaki announced his rejection of the election results. A Minister in
the Office of the President, Simon Kiptum Arap Choge, warned that there
would be bloodshed country-wide if Kibaki's petition threatened Moi's
regime, but no action was taken by the police for incitement to violence.67
One cannot overlook the fact that members of the opposition also contributed
to incitement of violence through issuing public statements. For instance,
Mwai Kibaki is quoted as having said that "Mr. Moi cannot afford
to maintain silence as if nothing is happening ...[when] the killing
of our citizens has been going on in the last two weeks. It is only
natural that the victims will take arms to defend themselves."68
This sentiment arose out of the government's lack of action in curbing
the ethnic violence. While opposition leaders, such as Stephen Ndicho,
were being arrested and charged with inciting violence, nothing was
done to KANU and KANU leaders.
In 1997 Minister Francis Lotodo asked all non-Kalenjins to leave the
Rift Valley, again contradicting the provisions of freedom of movement
in the constitution. In September 1999 President Moi himself stated
that government officials should deny "permits" to politicians
who use public rallies to abuse other leaders. However, officials now
have legal rights to cancel such rallies only if they are a threat to
security or if there is another meeting in the same venue.69 The KANU government continued to use force to oppress the opposition
in the late 1990s, even after the incorporation of the IPPG amendments
to the Constitution. Peaceful rallies calling for political and constitutional
reforms were persistently violently broken up by the security forces.
On June 10, 1999, the police, complemented by a squad of "KANU
youth" and the infamous jeshi la mzee (which in Swahili literally
means, old man's militia), violently disrupted a peaceful rally organized
by religious and civil society groups to protest the government's handling
of the constitutional review process. A number of people, including
the Reverend Timothy Njoya who has been vocal in criticizing the government,
were seriously injured.70 The jeshi la mzee, allegedly
sponsored by the Assistant Minister in the Office of the President,
Fred Gumo, again appeared on the scene in May 1997 and was used to violently
disrupt pro-reform rallies.71 Notwithstanding the
elections, government was complicit to violence against its citizens
who were exercising their rights of association and expression.
The move to strengthen human rights in Kenya has run against the authoritarian
rule of Daniel Arap Moi, and his patronage system. Reforms since the
introduction of multipartism have created a stalemate between Moi's
government and most of the opposition members of parliament, church
leaders, and other pro-democracy and human rights advocates. Despite
the reinstatement of multiparty elections and attempts to annul laws
that permit abuse of human rights, government security agents and armed
militia continue to violate civil and individual liberties. The main
explanatory factor of why so little has changed is Moi's pattern of
rule and his political beliefs.
Moi's centralization and personalization of power has led to the subordination
of the functions of the judiciary and of parliament. As was the case
during the de jure one-party state rule, human rights violations by
his administration have continued even after the post-1992 and 1997
multiparty elections. Moi has persistently demonstrated unwillingness
to uphold the sanctity of human rights at home. His administration has
shown ambivalence in dealing with violence which has persisted in the
country, particularly in the Rift Valley and the Coast Provinces.
It has been argued in this paper that were it not for the partial success
of the IPPG in allowing President Moi and KANU to maintain control,
the government would have used the Likoni-Kwale violence as an excuse
to declare a state of emergency and thus postpone the elections indefinitely.
Despite constitutional reform, the government has been unable to fulfill
its obligation to the country's citizens as enshrined in the constitution
and international human rights treaties that it is party to. In and
of themselves, the elections of 1992 and 1997 proved insufficient to
guarantee human rights. It is clear that an independent judiciary and
an accountable police force are required if human rights and civil liberties
are to be secured for the majority of Kenya's peoples.
1.See, Leonard, David, African Successes: Four Public
Managers of Kenyan Rural Development .1991, Berkeley: University of
California Press, p. 169.
2. Haugerud, Angelique, The Culture of Politics
in Modern Kenya.1995, Cambridge: Cambridge University Press, p. 82.
3. See, Moi, Daniel T. Arap, Kenya African Nationalism:
Nyayo Philosophy and Principles . 1986, London: Macmillan. See also,
Godia, George, Understanding Nyayo: Principles and Policies in Contemporary
Kenya . 1984, Nairobi: Transafrica.
4.Ochieng, William R. " Structural and Political
Changes", pp. 83-109, in Decolonization and Independence in Kenya,
1940-93 , B. A. Ogot and W. R. Ochieng, Editors. 1995, Nairobi: East
African Educational Publishers, pp. 83-109.
5. Kenya, The Constitution of Kenya. Laws of Kenya,
rev. ed. 1998, Nairobi: Government Printer, Chapter II, PartI (6)(1-2).
6 . Amnesty International, Kenya, Torture, Political
Detention and Unfair Trials. AI Index AFR 32/17/87, 1987 and Amnesty
International, Kenya: Torture Compounded by the Denial of Medical Care.
AI Index AFR 32/18/95, 1995.
7. Widner, J. 1994. "Two Leadership styles
and Patterns of Political Liberalization". African Studies Review,
8. Hempstone, Rogue Ambassador, op. cit., pp. 39
9. Ibid., p. 290.
10. See, Kimondo, G. K. "The Bill of Rights",
in The Citizen and the Constitution. K. Kibwana, G. K. Kimondo and J.
T. Gathii, Editors. 1996, Nairobi: Claripress, pp. 54-56.
11. Weekly Review, Nairobi, 8 May 1987. See also,
Ogot, B. A., "Politics of Populism", pp. 187-213, in Ogot
and Ochieng, op. cit., 187-213.
12. See Adar, K. G. "Ethnicity and Ethnic
Kings: The Enduring Dual Constraint in Kenya's Multiethnic Democratic
Electoral Experiment". Journal of the Third World Spectrum, 5 (2)(
Fall 1998): 71-96.
13. See, Kenya, Report of Judicial Commission Appointed
to Inquire into Allegations Involving Charles Mugane Njonjo. Nairobi:
Government Printer, November 1984.
14. KANU Maendeleo Ya Wanawake Organization, KANU
Maendeleo Ya Wanawake Organization, Information Booklet. Nairobi: Government
Printer, 1990, p. 6.
15. Andreassen, B., "Kenya", in Human
Rights in Developing Countries Yearbook 1993. B. Andreassen and T. Swanehart,
Editors. 1993, Copenhagen: Nordic Human Rights Publications, p. 193.
16. Maina, W., "Constitutional Crisis in Kenya:
An Inquiry into the Origins, Nature and Prospects of Reform", Paper
Precedented to the IPAR Project on Constitution- Making in Kenya, November/
December 1996, p. 67.
18. See generally, Adar, K. G., "The Interface
Between Elections and Democracy: Kenya's Search for a Sustainable Democratic
System, 1960s - 1990s", pp. 340-360, in African Democracy in the
Era of Globalization, J. Hyslop, Editors. 1999. Johannesburg: Witwatersrand
University Press, 1999.
19. Africa Watch, Kenya: Taking Liberties. Washington
D.C.: An African Watch Report, p. 151. July 1991. "Hannan Lucy,
Bias and Judicial Outrage". New Law Journal (London) 141(1991):
900-901 and "Constitutional Law According to Mr. Justice Dugdale"
Nairobi Law Monthly, 34 (19910: 15-16).
20. Ibid., 148.
21. Ibid., pp. 151-152.
22. Ibid., P. 153 and generally Omaar, Rakiya,
"Ten Years of President Arap Moi in Kenya". Human Rights Watch.
New York: Human Rights Watch, October-November 1988.
23. Carver Richard. Writenet Country Report, Kenya
Update to End of July 1995, (Writenet Country Papers, August 1995).
24. Widner, The Rise of a Party-State in Kenya,
op. cit., pp. 189-190.
25. Ibid., p. 100.
26. See Sabar-Friedman, G., "Church and State
in Kenya, 1986-1992: The Churches' Involvement in the "Game of
Change", African Affairs, 96(1997) : 25-52. See also, Throup, D.,
"Render unto Caesar the Things That Are Caesar's: The Politics
of Church-State Conflict in Kenya, 1978-1990", pp. 154-169, in
Religion and Politics in East Africa B. Hansen and M. Twaddle, Editors.
1995, London: James Currey.
27. See, Current Biography. New York: H. W. Wilson
Co., p. 262, 1979.
28. Hempstone, Rogue Ambassador, op. cit., p. 35.
29. See, Adar, K. G., "Human Rights and Academic
Freedom in Kenya's Public Universities: The Case of The Universities
Academic Staff Union". Human Rights Quarterly. 21(1) (February
30. Ibid., p. 187.
31. Ogot, "Politics of Populism", op.
cit., p. 199.
32. See Umoja, Straggle for Democracy in Kenya:
Special Report on the 1988 General Elections in Kenya. London: Umoja
secretariat, p. 96, 1988 and Widner, The Rise of a Party-State in Kenya,
no footnote 33
34. Mutua, Makau wa., A long Road to Uhuru: Human
Rights and Political Participation in Kenya. Montreal: International
Centre for Human Rights and Democratic development, March 1993.
35. Kuria, G. K., "Freedom of Expression and
Contempt of Court." Paper Presented at the Second International
Commission of Jurists (Kenya Section) Workshop on Administration of
Justice in Kenya Courts as Guardians of Justice, 30 March, 1995 and
Makali, D., "Court of Appeal Ruling on Don Reeked of State Interference"
People (Nairobi, 1994.)
36. See, Adar, K. G., "Human Rights and Academic
Freedom", op. cit.
37. Ross, S, "The Rule of Law and Lawyers
in Kenya". Journal of Modern African Studies, 30(3)(1992): 428
and Mulei, C., "Banning of Plays not Justifiable Legally"
Sunday Standard (Nairobi), 17 March 1991.
38. Sabar-Friedman, "Church and State in Kenya,
1986-1992", op. cit., p. 32.
39. Weekly Review, 24 April 1987.
40. Kenya, Laws of Kenya. Nairobi: Government Printer,
1982, Cap 56, part III, para. 5(10)(d).
41. US Congress, Foreign Operations, Export Financing,
and Related Programs Appropriations Act, Public Law No. 101-513, at
42. Ibid, pp. 159. 160.
43. See National Council of Churches of Kenya,
CPK/ARCH. Synod Committee Report, April 1992 and Abuom, A., The Role
of Kenyan Churches in Democratization. Paper Presented at a Conference
on the Christian Churches and Africa's Democratization, Leeds, 1993.
44. See Kenya Episcopal Conference, "An Open
Letter to His Excellency the President Daniel Arap Moi and the People
of Goodwill in Kenya". Standard(Nairobi), 30 October 1993.
45. Sicherman Carol. "Kenya" in Race
& Class. (April-June 1998, Vol. 57 (no. 4): p 63.
46. Amnesty International, Kenya Annual Report
for 1997, (Amnesty International, 1998).
48. Article 19, Kenya post-Election Political Violence,
Article 19, London 1998:
49. Kenya Human Rights Commission, Quarterly Repression
Report, October- December 1995. Nairobi: Kenya Human Rights Commission
and Kenya Human Rights Commission, Quarterly Repression Report, July-September
1996. Nairobi: Kenya Human Rights Commission, 1996.
50. See generally, United Nations, Committee on
Economic, Social and Cultural Rights, Concluding Observations on Kenya,
UN Doc. E/C. 12/1993/6, 1993.
51. See, United States, Kenya: Human Rights Report,
1995. Nairobi: Embassy of the United States of America, 1995.
52. Article 19, Kenya: Post-Election Political
Violence. London: Article 19, p. 1, December 1998 and generally, Article
19, Deadly Marionettes: State Sponsored Violence in Africa. London:
Article 19, October 1997.
53. Kenya Human Rights Report, Kayas Re-Visited,
A Post-Election Balance Sheet, Kenya Human Rights Commission, Nairobi,
1998: pp 40.
54. Amnesty International Kenya Annual Report for
1997, (Amnesty International, 1998).
55. Amnesty International Report, Violation of
Kenya Human Rights, (Amnesty International, September 1997).
57. "IPPG Recommendations and the Aftermath"
Daily Nation, Nairobi, (16 January 1998). See also note 62.
58. Ibid. See also Amnesty International Report,
Violation of Kenya Human Rights, Amnesty International, September 1997).
59. Amnesty International, Kenya: Political Violence
Spirals, (Amnesty international, 10 June 1998).
60. US State Department. Report on KENYA Human
Rights for 1999, (Washington D.C, State Department, February 2000).
62. Amnesty International Report, Violation of
Kenya Human Rights, (Amnesty International, September 1997).
65. Amnesty International Report, Violation of
Kenya Human Rights, (Amnesty International, September 1997).
66. Amnesty International, Kenya, Political Violence
Spirals, (Amnesty International, 10 June 1998).
69. US State Department Kenya Report for Human
Rights for 1999, Washington D.C, US State Department, February 2000).
70. US Department of State, Kenya Report on Human
Rights for 1999, (Washington D.C, State Department, February 2000).
71. US State Department Kenya Report for Human
Rights for 1999, (Washington D.C, US State Department February 2000).
See also Kenya Human Rights Report, Kayas of Deprivation, Kayas of Blood,
Kenya Human Rights Commission, Nairobi 1998
Korwa G. Adar is a Senior Lecturer in
International Relations, International Studies Unit, Political Studies
Department, Rhodes University. Isaac M Munyae
recently completed his MA in International Studies, International Studies
Unit, Political Studies Department, Rhodes University. The authors are
indebted to the African Studies Quarterly review committee for their
Style: The following is the suggested
format for referencing this article:
Korwa G. Adar and Isaac M. Munyae 2001. "Human
Rights Abuse in Kenya under Daniel Arap Moi 1978-2001. African
Studies Quarterly 5(1): 1. [online] URL: http://web.africa.ufl.edu/asq/v5/v5i1a1.htm