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ISS Seminar Report: Revisiting the Question of Election-Related Violence and Government Mitigation Strategies
Date: 21 June 2012

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

 
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