ICG warns that armed groups are mobilising on both sides, ODM is under pressure from its core constituencies, to demand nothing less than the presidency, and the Kibaki coalition is buying time to wear down both the opposition and the international community’s resolve.

Since the announcement of the contested presidential election results on 30 December 2007 giving a second term to Mwai Kibaki, Kenya has been in its worst political crisis since independence. Over 1,000 people have died and 300,000 have been displaced in violence with a serious ethnic character. As former UN Secretary-General Kofi Annan conducts negotiations for a political settlement, calm has partly returned but the situation remains highly volatile. To address the causes of the crisis, it will not be enough for the Annan team to broker a deal on the mechanics of a transitional arrangement between political opponents and schedule negotiations on a reform agenda. A sustainable settlement must address in detail a program of power-sharing, constitutional and legal reform and economic policies that convinces the drivers of violence to disarm. For negotiations to succeed, the international community must enhance its pressure, including aid conditionality and threats and application of targeted sanctions against spoilers.

State authority collapsed in the political strongholds of the opposition Orange Democratic Movement (ODM). Supporters of its leader, Raila Odinga, took to the streets in violent protest against the theft of the presidency and to seek revenge on the Kikuyu and Kisii communities perceived to be loyal to Kibaki. The security forces reacted with great brutality and members of the communities supporting ODM were violently targeted by Kibaki supporters.

Kofi Annan and a distinguished team of other African leaders have been mandated by the African Union (AU) to mediate the crisis. Soon after their arrival on 22 January, they arranged a meeting between Odinga and Kibaki and obtained pledges to negotiate a settlement. The parties have conceded some ground and are discussing a transitional arrangement which could lead to new elections after two years, legal and constitutional reforms, and a truth, justice and reconciliation commission to assist in healing wounds.

Serious obstacles remain, however. Armed groups are still mobilising on both sides. ODM, which won a clear parliamentary plurality in December, has put on hold its calls for mass action and is using the talks to restore prestige it lost internationally in the violence. It is under pressure from its core constituencies, however, to demand nothing less than the presidency, and its supporters could easily renew violent confrontations if Kibaki’s Party of National Unity (PNU) coalition remains inflexible.

The Kibaki coalition is buying time to wear down both the opposition and the international community’s resolve. It benefits from the presidency’s extensive powers, including unlimited access to public resources. It insists the situation is under control and there is no power vacuum, tends to treat Annan’s mission as a side-show while sponsoring alternative reconciliation processes, seeks to have Kibaki’s election recognised by neighbouring countries and continues to resist genuine sharing of executive power.

While the mediation concentrates on a power-sharing agreement and a transitional arrangement leading to new elections, it has postponed equally important talks on the reform agenda and economic policy that an effective transitional government should adopt. A further year is envisaged for these talks. This is a risky approach. The Annan team should engage the two sides immediately on these topics.

Three complementary sets of issues must be addressed to finalise a detailed power-sharing agreement. The first are the legal and constitutional reforms needed during the transition period, including a complete overhaul of the electoral framework. The second are the economic policies to be implemented during the transition. The third are the concrete details of the process to be followed to end the violence and to deal with the humanitarian crisis, including the institutional framework and timelines. The ODM and PNU do not control the local violence. There is a chance to restore state authority and prevent renewed major fighting only if local leaders understand that their grievances are being addressed and concrete measures are being rapidly implemented. Civil society and economic stakeholders should also be associated with the negotiations on institutional reforms and economic policy.

International pressure is critical to achieving these objectives. The conditioning of multilateral and bilateral financial help for a negotiated settlement should be reinforced by a general travel ban and asset freeze policy against those who support and organise the violence or otherwise block the political process. Some hardliners in Kibaki’s camp depend on international credit-worthiness to keep their enterprises prosperous. The prospect of making individuals pariahs can be used to encourage concessions in the negotiations and good faith in implementation of an agreement.

The stakes go beyond Kenya, whose political and economic health is an essential ingredient for the security and prosperity of Eastern and Central Africa and indeed for how the entire continent’s future is assessed by investors. Kenya’s stability determines regional access to energy supplies and basic commodities and guarantees a relatively safe environment for hundreds of thousands of Somali and Sudanese refugees. But concentrating on a power-sharing arrangement between ODM and PNU will not be enough to restore the situation.

RECOMMENDATIONS:

To the Annan mediation team of eminent African personalities:

1. Propose to open three additional areas to be addressed immediately and urgently as detailed negotiations on the structure and composition of a power-sharing arrangement continue:

a) constitutional and legal reforms, including a complete overhaul of the electoral framework;

b) economic policies, including immediate land acquisition and redistribution and major job-creation programs; and

c) the framework and process for implementing commitments for ending the violence and resolving the humanitarian crisis, including institutions, timetables and international guarantees.

2. Involve additional stakeholders from civil society in the talks on legal and constitutional reforms and from the business community on economic policies.

To the Kenya Government and PNU coalition:

3. Engage constructively in the power-sharing negotiations and take the opportunity of discussions on constitutional reforms and economic policies to negotiate guarantees for the continuation of reforms started by the Kibaki administration.

4. Restore security in the IDP camps and suspend all resettlement and relocation policies until a framework has been agreed by the parties.

5. Ensure equal access and distribution of humanitarian and reconstruction resources to all victims of the violence.

6. Arrest and prosecute the leaders of the Mungiki sect, as well as politicians supporting its activities, so as to redress concerns about possible state support for its resurgence.

7. Suspend immediately all police officers in charge of the areas where extra-judicial killings have occurred, including Nairobi, Kisumu, Kakamega, Nakuru, Naivasha, Sotik, and Kericho. ;

To the ODM leadership:

8. Engage constructively in the negotiations and support the immediate opening of detailed talks on constitutional reforms and the economic policies to be carried out during the transition, with a view to reassuring PNU hardliners over its economic policies as well as addressing the grievances of its own hardline constituencies;

9. Condemn publicly and threaten with sanctions any ODM leader inciting ethnic hatred, and express sympathy for the Kikuyu victims of the violence;

To the U.S., the EU and its member states, Canada, South Africa and other international partners:

10. Condition aid on the satisfactory conclusion of all the above-mentioned elements of the negotiation.

11. Implement and expand the travel bans already announced by the U.S., Canada, the UK and Switzerland by freezing the financial assets of individuals directly involved in or supporting violence or otherwise blocking the negotiation process and publicly blacklist their companies on financial markets.

To the Prosecutor of the International Criminal Court (ICC):

12. Open a preliminary investigation into alleged atrocity crimes committed in Kenya and take into account the findings and recommendations of the fact-finding mission of the Office of the UN High Commissioner for Human Rights (OHCHR) once issued.

Nairobi/Brussels, 21 February 2007

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