All suspects were released last evening on a free bond. However, they are to report back to the Muthaiga police station on Tuesday and may face charges of being members of Mungiki. We believe this is a bogus frame-up of a case. Shame…

The Partnership for Change is alarmed by the number of arrests being made by the Kenyan police force of peaceful Kenyans when they are simply going about their daily business or exercising their fundamental human rights to petition government and to demand for the full implementation of the National Accord. Even today, George Nyongesa of Bunge La Mwananchi reports that Gacheke Gachihi – a Bunge la Mwananchi network leader in Huruma – was arrested along with 20 other people in a tea kiosk in Kiamaiko while having Sunday breakfast. Even the owner of the kiosk, Joel Kimani, was arrested. The police are now holding all of them at Muthaiga police station and they are to be charged tomorrow at Makadara Criminal Courts for membership of an unlawful movement, the Mkenya Solidarity Movement. This is a bogus charge because, first of all, the Mkenya Solidarity Movement is a registered political party headed by former MP G.G. Kariuki, and, second, none of the people arrested are members of it. They were having tea in a kiosk which was raided by the police. Apparently, they could have bought their freedom but, being poor, did not have the thirty thousand shillings they were each asked for.

These arrests indicate how derelict the government is in implementing agenda one of the National Accord, which requires the government to take immediate steps to restore civil and political liberties, including the freedom of expression and assembly. The minister for justice, Martha Karua, herself said at the Kenya We Want Conference that the backlog of cases in the judiciary is over 870,000. Is it right that the government should continue arresting peaceful Kenyans who are calling out for justice? Is it right that the police are carrying out swoop arrests, possibly for extortionate purposes?

The arrests remind all that there is still an unrepentant dictatorial police force operating in Kenya, quite out of step with the letter, intent and spirit of agenda one of the National Accord. At its head is Major General Hussein Ali who, as the police commissioner and very first witness to testify before the Waki Commission of Inquiry into the Post-Election Violence (CIPEV), said when asked by Justice Waki for his honest opinion on the police force’s actions and whether he had reflected on any possible acts or omissions by the Kenyan police during the two-month period that violence raged across Kenya, ‘I would do exactly what I did. I would not change a thing my Lords, and that is the honest truth.’

Clearly Major General Ali has no apologies to make to the victims of police bloodlust or to the Kenyan public for the use of deadly force against civilians in such circumstances as to suggest crimes against humanity. His unrepentant hard-line attitude and complete lack of empathy for the victims of his force’s excesses raises questions as to his suitability for the position he holds. And yet, he is still in office one year after the post-election violence, a major stumbling block and obstacle to the implementation of the Waki Commission’s report for reform of the police force. His tenure threatens the enjoyment of civil liberties in Kenya, and Kenyans lack confidence in his ability to ensure that the police force facilitates rather than inhibits civil liberties.

Since the signing of the National Accord one year ago the Kenyan press has carried over 1,000 articles on police brutality. The Oscar Foundation has documented 68 enforced disappearances after police arrests in 2009, and 122 extra judicial killings since 1 January 2009. Cumulatively, since 2007, the Oscar Foundation recorded 6,452 enforced disappearances, and 1,721 extra judicial killings by police officers. Its reports are derived from monitoring police activity and conducting a paralegal programme in major urban areas around Kenya. The state Kenya National Commission on Human Rights, the Independent Medico Legal Unit and the Release Political Prisoners pressure group carried out similar reports. These issues are the subject of questions in Kenya’s National Assembly, and have helped stimulate a recent enquiry by the United Nations special rapporteur Philip Alston on extra judicial killings. Despite all the evidence – one year after the National Accord and four months after the publication of the Waki–CIPEV report – police reform and personnel change have not started. Less than 10 police officers have been brought to account for the crimes described in this paragraph.

INTERNAL SECURITY FAILURE

Justice Waki’s Commission charged the police force with ‘failure’ in concert with its other internal security counterparts, the Provincial Administration and the Administration Police. Their collective failure to act on intelligence reports contributed to the violence. Justice Waki also condemns ‘indifferent’ state agencies such as the National Social Security Intelligence (NSIS), which possessed knowledge that apparently was not properly shared. Finally, the Waki–CIPEV report concludes that the effectiveness of the Kenyan police and the Administration Police was hampered by, inter alia, ‘political expediency’.

The report, which President Kibaki made public, recommends changes to the inter-agency coordination and joint operation structures of the Kenyan internal security apparatus. Among these are the merging of the Kenyan police with the Administration Police and the establishment of an independent police authority.

A FREE-FOR-ALL SITUATION

The post-election violence was not merely citizen-to-citizen attacks. It also consisted of systematic attacks against Kenyans based on ethnicity and political persuasion. The ability of the state’s internal security apparatus to protect Kenyans from violence is harshly questioned, and the CIPEV took note of the fact that in some cases attackers travelled long distances, unhindered, to attack their victims. The ‘free-for-all’ was made possible by the collapse of state security, which saw the police overwhelmed. This conclusion by Justice Waki must surely put the police commissioner, Major General Hussein Ali, on the spot. The CIPEV report also accused some state agents of being ‘guilty of acts of violence and in our finding in broad violation of the human rights of citizens’ and states that such were the results of a trend towards institutionalising violence against the public. It also stated that 1,133 Kenyans were killed (405 by gunshot wounds) during the two-month period.

The Waki report is clear as regards the conduct of state security agencies. They failed institutionally to anticipate, prepare for and contain the violence. Often individual members of the state security agencies were also guilty of acts of violence and gross violations of the human rights of citizens, including rape and murder.

WAKI RECOMMENDED A SPECIAL TRIBUNAL FOR CRIMES AGAINST HUMANITY

Justice Waki’s commission identifies Kenya’s constitutional framework as a causative factor in the 2007–08 violence, repeatedly raising the stakes in election after election with ethnic coalitions confronting each other. The commission specifically identified the concentration of power around the presidency as a contributing factor to the violence of 2007–08, and the flashpoint for what became an ethno-geographical power struggle between the Party of National Unity (PNU) and the Orange Democratic Movement (ODM) after the contentious announcement by the Electoral Commission of Kenya (ECK) of Kibaki’s re-election.

In previous episodes of political violence (since the 1990s) militias have been active. Since the last episodes of violence in 2002, many such militias appear not to have been demobilised. In 2007 and early 2008, the militias were reactivated by ‘politicians and business leaders’ who tried to use violence to win the power struggle that followed the 2007 election announcement.

According to Justice Waki, CIPEV obtained evidence identifying prominent sponsors and perpetrators of violence (‘in politics, in government, in business and elsewhere’) and devised a means of anticipating and dealing with the problem of political impunity in Kenya, and the need to secure real witness protection for informants. The commission has recommended the creation of a special tribunal with a mandate to try persons for crimes against humanity committed during the post-election period.

To safeguard against political vested interests in Kenya, the CIPEV has recommended that the tribunal should have international members, as well as international prosecution and investigation staff. It expects that the proposed ‘Special Tribunal for Kenya’ will be set up in Kenya as a court and will try those with the greatest responsibility for crimes against humanity. Kenyans want to see the special tribunal start its work to root out the killers in our midst, and to end their impunity.

NON-PROSECUTION AMOUNTS TO CONTINUING HUMAN RIGHTS VIOLATIONS

CIPEV completed its investigation into politically-motivated violence four months ago with a stinging indictment of institutional failure and complicity of Kenya’s internal security apparatus in gross human rights violations and crimes against humanity. The events it was investigating took place more than one year ago, and yet there have been no indictments of any of the main actors behind the post-election violence. Justice for victims has taken a back seat.

The commission’s report, delivered to the president of Kenya, charges that Kenyan security agencies ‘failed institutionally’ to contain and prevent the violence. Justice Waki also presented the final report to the Kofi Annan-led Panel of Eminent African Persons.

The names of the persons bearing the greatest responsibility for financing, organising or perpetrating the violence were placed in a sealed envelope and given to Kofi Annan pending establishment of the special tribunal for Kenya, which is expected to try those named. However, parliament appears to have failed in its first attempt to establish the special tribunal in Kenya, and Dr Annan now has to exercise his judgement and discretion as to how to proceed in ensuring that the Waki suspects are brought to justice as soon as possible. The Panel of Eminent African Personalities may decide to send the names of those bearing the greatest responsibility for crimes against humanity to the International Criminal Court (ICC) Prosecutor for investigation now that parliament has rejected the constitutional amendment bill that was to establish the special tribunal.

GRAND COALITION GOVERNMENT UNWILLING TO KEEP NATIONAL ACCORD PROMISE

Processions over the lack of food are not illegal as the people who are demonstrating speak on behalf of the many Kenyans going hungry today. It is ridiculous to see the kind of treatment the government is meting out to the defenders of fundamental human rights, rights such as the right to food and other very basic commodities essential to protecting the poor and hungry from starvation, starvation caused by an irresponsible government and corrupt members of parliament.

This government, through its law enforcement officers, has demonstrated that it is unable to handle the governance issues that it is responsible for creating and that it should step aside and pave the way for fresh elections to be held in order to offer alternative leadership for the country.

POLICEMEN AND POLICEWOMEN ARE OUR BROTHERS AND SISTERS

By and large, the Partnership for Change recognises that most police officers are good, decent and honest Kenyans with a sense of public mission. Although Kenyans do not condone corruption, we know the poor pay and living conditions most police officers endure (as they do what can be dangerous work) exposes them to the temptation to engage in survival corruption, a temptation many succumb to. If the government were to use public funds properly, it would be possible to address the livelihoods of police officers. However, the real problem in the police force is at the top. Just like every other public institution in Kenya, the police force is in need of an immediate overhaul. Kenyans will have no confidence in the promises made under the National Accord if the people responsible for, or at the helm of, the force that gunned down and disappeared so many innocent Kenyans remain in office.

The citizens of Kenya must say no to dictatorial impunity in favour of democratic accountability. The rule of law must prevail in Kenya.

* Mars Group Kenya is a leadership, governance, accountability and media watchdog organisation.
* Please send comments to [email protected] or comment online at http://www.pambazuka.org/.