Corruption in Africa was in the spotlight once again this week with news that Texas-based oil services company Halliburton will pay a record fine to settle a bribery probe. You can see our story here. Halliburton Co will pay a $559 million fine to end an investigation of its former KBR Inc unit if the U.S. government approves the settlement, the largest penalty against a U.S. company for charges of bribery under federal law.

Abahlali baseMjondolo have been to the Durban High Court this morning to hear the judgment being handed dawn by the KwaZulu-Natal President, Judge Vuka Shabalala. On the 6 November 2008 the Movement had applied to the Durban High Court for the KwaZulu- Natal Elimination and Prevention of Re-Emergence of Slums Act 2007 to be declared unconstitutional. Full details of the Act, and the reasons for our opposition to it, and can be found on the Movement's website at

Tensions have returned to northern Mali in recent days, despite efforts by Algeria to mediate a peaceful settlement between the government and Tuareg rebels. The Malian army has intensified its attacks against rebel positions in the area of Kidal, possibly in pursuit of a commander who rejects the peace plan proposed in the 2006 Algiers Accord.

Recent attacks by the rebel Lord's Resistance Army in north-eastern Democratic Republic of the Congo (DRC) have driven thousands of Congolese to South Sudan. A UNHCR team last weekend visited the Sudanese village of Lasu, 50 kilometres from the DRC border, and registered 680 uprooted Congolese, most of them from the village of Aba. They said they fled their homes last week following an attack by the Lord's Resistance Army (LRA), a rebel group from Uganda.

African governments have rallied behind Sudanese President Omar Al-Bashir in rejecting a possible international arrest warrant by the International Criminal Court on charges of orchestrating genocide in Sudan's volatile western region of Darfur.

Although the Swazi constitution stipulates free primary education from 2009, parents will have to pay school fees this year. Only three days before the start of the January term, the country's government announced it will continue to charge for primary education, contrary to the law.

The lesbian, gay, bisexual, transgender and intersex, (LGBTI) community in Nigeria is appalled by the recent approval of the drastic Same Gender Marriage Prohibition Bill by the House of Representatives, which aims to root out all forms of homosexual practices in that country. According to Reverend Jide Macaulay of the House of Rainbow Metropolitan Community Church (MCC) the Bill “is a continuing nuisance and avoidable evil that is terrorizing innocent same gender loving people.”

As many as 250 million people in Africa may not have enough water to meet their basic needs by 2020 because of climate change, a specialist in poverty, environment and climate change said on 27 January. "The day-to-day impacts of climate change, such as higher temperatures and erratic rainfall, are increasing many people's vulnerability to hazards," Charles Ehrhart, the poverty, environment and climate change network coordinator for CARE International, told policy-makers and representatives of pastoralists from the Horn, eastern and central Africa, at a consultative meeting on ways of mitigating the humanitarian effects of climate change on pastoral areas.

On 28 January 2009, Ndola High Court Deputy Registrar Jones Chinyama banned "The Post" newspaper from covering former president Fredrick Chiluba's case currently before the Magistrate's court. The ban came on the heels of a story published in "The Post" on 28 January, which sought to interpret the meaning of Chiluba's intention to give an unsworn statement in court.

This latest policy briefing from the International Crisis Group, argues that the West African country’s new prime minister, Carlos Gomes Junior, has an opportunity to carry out the administrative and political measures needed to strengthen the state, stabilise the economy and fight drug trafficking. But he will need to base his approach on political dialogue with President Nino Vieira, the army and rivals within his own party.

The NEW PATH: AFRICAN FORUM FOR INTELLECTUAL THOUGHT is published quarterly by the African Research and Resource Forum (ARRF) and provides a forum for innovative thinking about our common future and about how we need to tackle the most intractable problems facing Africa today – focusing on Eastern Africa. The editor invites your articles (opinion and analysis) for the March 2009 edition.

The Council for the Development of Social Science Research in Africa is pleased to announce the 2009 session of its Advanced Research Fellowship Programme and to invite interested scholars based in African universities or research centres to submit applications for consideration for an award.

For many women, pregnancy is a time of anticipation and celebration, but for those living positively it can be frustrating when their status – and not their pregnancy – takes centre stage. Being pregnant and positive often comes with its own brand of stigma. In a study among HIV-positive women in the United States, released at the international AIDS conference in Mexico in 2008, about half the respondents thought HIV-positive women could have children if they received appropriate care.

Rosa Chimbindi, pregnant with her first child, recently went Parirenyatwa hospital, one of Zimbabwe's largest referral facilities, located in Harare, the capital, to have her baby. Instead, staff at the maternity wing told her the hospital was closed because of the health worker boycott. Her doctor had recommended that her baby be delivered by Caesarean section because she was HIV positive and had previously suffered a hip injury.

As the attack on Gaza get to its third week, over 800 Palestinians in Gaza have been murdered, including a foreign journalist while more than 3, 000 have been injured, some with live-threatening wounds. More than one third of those either killed or injured are children and women according to media reports. Moreover, tens of buildings and public facilities including a UN agency’s school, where over 40 children and women were killed, have been destroyed by the Israeli (but US produced) munitions...

We lesbian, gay, bisexual, transgender, and intersex individuals, in a word, queers, have had the distinct un-pleasure of being told we don't exist—in official government statements, historical documents, and contemporary statements. Well, we do.

The Zimbabwe Women’s Resource Centre and Network is a local Non-Governmental Organization that seeks to empower women in Zimbabwe. ZWRCN is seeking a consultant to carry out a Gender Analysis of the 2009 Zimbabwe National Budget. The gender analysis of the 2009 National Budget is expected to contribute to the main objective of the Gender Budgeting and Women’s Empowerment Programme currently under implementation by ZWRCN. The programme seeks to promote the formulation and implementation of gender sensitive national policies, programmes and budgets at the national level.

This publication from the Global Land Tool Network belongs to a series of research reports examining the changing landscape of land tenure security in developing countries. The intent is to provide up-to-date information to land professionals and policy makers working in the land sector and to raise awareness on what is being done at the country level.

cc. Going the extra mile to find the truth and ensure accountability for perpetrators of post-election violence.

Excitement. Then panic. Then terrified powerlessness. Kenya’s politicians have ridden the rollercoaster of emotions since the Commission of Inquiry into the Post Election-Violence presented its report.

They have said the report is a threat to peace and national cohesion. They have said it is a product of illegal processes. They have also come round to accepting that they must implement it.

One of the expectations in setting up the Commission of Inquiry into Post-Election Violence was that it would find the people responsible for gross human rights violations and recommend appropriate punishment.

The decision not to publish the names of people the commission believes bore responsibility for the violence has elicited mixed reactions.

The commission handed the coalition government two tough political choices involving complex tradeoffs. While there are those who would prefer that justice for perpetrators of the post-election violations be secondary to structural reforms of the institutions that failed the country, Kenya’s recent crisis suggests that failure to punish those responsible would set a bad precedent.

The single most important recommendation in the Waki Report is the setting up of a Special Tribunal to seek accountability from persons bearing the greatest responsibility for serious violations relating to the 2007 elections. The tribunal should apply Kenyan law as well as international criminal law through the International Crimes Bill, which is pending enactment into law.

Further, an agreement on the tribunal’s formation must be signed within 60 days of the Panel of Eminent Persons receiving the report. The Special Tribunal should be created by law within 45 days of the agreement being signed. The tribunal will be anchored in the constitution and insulated from challenges arising from constitutional provisions about its jurisdiction.

If the Special Tribunal is established in any other manner than what has been set out, a list containing the names of suspects and relevant information will be handed over to the Prosecutor at the International Criminal Court.

The commission not only set general guidelines and principles on how to bring to justice those who were behind the post-election violence. It also provided measurable benchmarks within a specific timeframe. Failure to comply would spring referral to the ICC. This is by far the most ingenious proposal visited on Kenyans. The threat of enforcement is real in the event of default.

GENDER-BASED VIOLENCE

For the first time in Kenya’s history, a commission of inquiry isolated sexual and gender-based violence for special attention. An analysis of the Commission’s investigation on sexual and gender-based violence is carried in the COMMENTS AND ANALYSIS section of this issue.

WEIGHED, MEASURED, AND FOUND WANTING

Security agents failed to protect citizens and instead engaged in criminal behaviour.

How did state security agencies act in the lead up to polling day? Answering this question enabled the Commission of Inquiry into the Post-Election Violence to determine how prepared security agencies were for what would come.

The Waki report analyses how the security apparatus runs as well as its failures in the period after the elections. Overall, its verdict is that the state security agencies failed institutionally to anticipate, prepare for, and contain the violence and that individual members of the state security agencies were [often] guilty of acts of violence and gross violations of the human rights of the citizens.

In many ways, the report complements, confirms and builds on previous findings by various actors in the security sector. Its recommendations form a good basis on which to establish governance systems in the security agencies that bring them in line with democratic practice.

HOW THE POLICE FAILED KENYA

The report analyses how the state security machinery works in detail. It identifies this machinery as consisting of politicians, civil servants and officials in the national intelligence service, the police, the administration police, the prison service and the military.

Usually, this system develops security intelligence, which it delivers to the police or the military for action. The system is administrative and not subject to regulation by law. This makes it difficult for the public to hold it to account for its actions or omissions.

In summary, the Waki commission found the following anomalies in the way the security system was run:

1. MONOPLOY OF FORCE: The President unilaterally appoints all the people who occupy senior positions in this system. In the post-election period, the security machinery, which is designed to serve the interests of the political regime in power, was under the sole control of the Party of National Unity.

2. PARTISAN SPY AGENCY: The National Security Intelligence Service conducted an opinion poll and seemed to communicate the results outside the formal and established channels. The NSIS also became an agent of government in the electoral process. It sought accreditation badges for its officers from the Electoral Commission of Kenya; and it wrote to the ECK advising on how certificates should be dealt with by agents and that ECK should meet with media house owners and editors and the candidates with a view to striking a deal on the modalities of transmission and announcement of results. Specific advice of this nature was unwise and outside the NSIS mandate.

In the run-up to the December elections, NSIS had warned of... emerging allegations that the government is planning to use some sections of government organs including the provincial Administration and the Administration Police (APs) to rig the forthcoming elections. It seems that NSIS chose to do nothing about these allegations.

3. ABUSE OF POWER: It appears that the Head of Public Service and Secretary to the Cabinet, Mr Francis Muthaura, ordered that a large number of Administration Police officers be trained to act as election agents for the Party of National Unity. A senior academic together with high-ranking government officials, commanders of the Administration Police, conducted the training.

The role of the AP officers was to disrupt polling and where possible ensure that government supporters amongst the candidates and voters prevailed. Mr Muthaura told that Commission that this deployment was approved by the Government and was commissioned for security reasons and that the reason for sending these people under plainclothes is that the area was very unfriendly.

4. LICENCE TO KILL: The police often used excessive force and killed many citizens using live bullets in efforts to maintain law and order. In some cases, victims were “shot whilst in and around their own homes.As a result, 405 people died of gunshot wounds, while 557 received treatment for gunshot wounds. The commission largely attributes these excesses to the police, saying it did not receive any evidence to show that anyone else shot or killed people with guns.

Police armoury records relating, for example, to the use of firearms and ammunition in Nyanza Province were analysed and revealed that significant amounts of ammunition and tear gas were expended and in very many cases there is no record at all of ammunition expended. Witnesses also testified that police use of firearms was indiscriminate.

The police themselves had a prime difficulty in defending the use of lethal force on retreating crowds. There was “no legal or operational basis for justifying the shooting of civilians from behind at any given time during the circumstances presented to it.

The use of live ammunition also raises two important questions. For example, the Homa Bay police boss told the Commission that his staff were only issued with live rounds and not blanks or rubber bullets. How was it that this district only received live ammunition? Perhaps the police had run out of rubber bullets, were overwhelmed and therefore resorted to using whatever means at their disposal to deal with the emergency. Or it could be that a deliberate decision was made to use live bullets in areas hostile to the government.

5. COVER-UPS AND INCOMPETENCE: Even when provided with strong evidence identifying offenders, police did not investigate complaints -- especially those relating to property offences, deaths by shooting, and rape. Where inquest files were opened, at best [only] a superficial investigative effort was undertaken. This failure to investigate is attributable to factors such as self censorship or fear on the part of the investigators who are susceptible to pressure and manipulation. Senior public officials told the commission that such self-censorship is real especially in respect of investigating individuals who could influence an investigator’s work prospects or pose a personal threat.

6. CRIMINALS IN UNIFORM: The commission found credible evidence of criminal behaviour by the police, including murder, gang rape and looting. For example, an Administrative Police officer in Nairobi, who was identified by many witnesses, is alleged to have shot a number of citizens, many of whom were killed. There were numerous instances of police officers committing acts of sexual violence, including gang rape.

7. WINKING ON RAPE: The police failed to take allegations of rape seriously. For example, some senior officers told the Commission they did not include figures relating to sexual violence in their statistics, apparently not deeming it important. The presentation by the Commissioner of Police does not have any statistics on sexual violence. The Commissioner of Police should also be held accountable for this serious omission. Indeed, the commission says victims of sexual violence who went to the police to report were met with a dismissive response.

8. TRIBAL POLICE: Policing agencies were divided along ethnic lines. In Naivasha, for example, the commission established that there were breaks in the chain of command and parallel ethnic command structures within the police meant that even with the best planning the police were too weak to respond adequately to the violence.

In addition, victims testified that they received assistance from police officers from their ethnic groups while facing hostility from officers who were not from their tribe. This testimony is corroborated by the Kenya National Commission on Human Rights and the International Crisis Group, which observes that there was considerable evidence that officers have taken sides and that in many cases, decisive police action came only when officers thought their tribes or those who voted with their communities were under siege.

The commission also observed, at least four senior police officers were transferred or retired from their area of responsibility during the violence and at the height of operations. It is plausible that ethnic considerations were a major motivation for these transfers and retirements.

9. MISPLACED ARROGANCE: The police were simply too far off the mark in terms of being prepared to deal with the post-election violence. Their preparation and planning was scant, commenced far too close to the event, failed to take account of the intelligence received and information available on the ground, and did not encompass preventive activities designed to reduce and/or ameliorate the impact of violence around the 2007 General Election.

The approach taken by the police reflected misplaced arrogance that they would always be able to control what came up. Second, the policing system in Kenya is designed for reactive, as opposed to, preventive policing. It was, therefore, incapable of preparing and planning properly to manage the General Election. Many police officers said their plans were not written. Many seemed to be actions or reactions to events as they unfolded on the ground.

10. PLANNING FAILRUE: The National Security Advisory Committee did not meet during the crisis period. Few of the other systems that run the security machinery were working.

The provincial and district Intelligence committees put in a mixed performance. The police force does not have their own highly developed information gathering and intelligence systems. Its chain of command orientation undermines speedy and accurate dissemination of information. As information moves up and down the chain of command, it is not only distorted but also precious time is lost.

There are poor linkages and incompatibility between various intelligence arms and reporting systems. The functions of the NSIS overlap with those of the police’s Criminal Investigation Department. The law fails to spell out how the activities of the NSIS and the CID are supposed to be coordinated. The Commissioner of Police is not even a member of the National Intelligence Security Committee. The whole system is also prone to leakages.

The commission established that the security agencies do not review their performance as a matter of practice, and have not made credible efforts to assess how they worked during the post-election violence period.

WHAT NEEDS TO BE DONE

1. Policing reforms should be guided by the principles of fair representation of all ethnic groups in the policing entities, impartiality and cultural sensitivity, decentralization informed by a single integrated command model based upon community policing, respect for human rights, legal and political accountability, and integration of the Kenya Police Service and Administration Police. These principles are based on best international practices.

2. The Police Act should be amended to strengthen police governance, accountability and organisational arrangements in a way which is suitable for a contemporary age” and improving the effectiveness of the police.

3. A new and modern Code of Conduct should be enacted to build trust in the police because trust is an essential component without which the police cannot function effectively. Such a code of conduct would seek to instill ethical standards in policing, including honesty, integrity, professionalism, fairness and impartiality, respect for people and confidentiality.

4. Criminal investigations should be strengthened. The question of independent investigations is particularly important because the commission says the police have a fundamental problem with its investigative capability and capacity. The commission also found that there was inability or reluctance to investigate effectively, serious crimes and their perpetrators even when strong evidence existed. The omission also established that the Police service has weak systems and approaches to investigating incidents where police officers are involved. There is therefore a compelling case for establishing an independent and autonomous Directorate of Criminal Investigations.

5. A Police Service Commission must be established, and with it a Civilian Oversight of Policing. The Police Service Commission would be responsible for holding an amalgamated police agency (that integrates the Kenya Police Service and Administration Police Service) to account. With respect to civilian oversight of policing, it envisages the establishment of a well researched, legally based, professional and independent Police Conduct Authority.

Among other things, the Police Conduct Authority would be responsible for investigating the conduct of policing agencies and officers. A specialized and independent Police Reform Group (PRG) consisting of both national and international policing experts would lead this reform process. The PRG is supposed to be established immediately (presumably following the presentation of Waki Report) and report to the Minister of Justice within six months.

ANALYSIS: WHAT THE WAKI REPORT DID NOT DO

As political temperatures rose and the election loomed, Kenya had a security machinery that was dominated by the regime in power. This security machinery gave wide unrestricted powers to various individuals. The commission made a number of important recommendations that should be implemented. However, it does not provide a clear plan for prosecuting and punishing security agents who committed various crimes against the citizenry; and it does not recommend how the security intelligence apparatus can account to the citizenry, as well as be integrated with policing agencies.

The Waki report is an excellent account of how police officers exploit and violate the human rights of Kenyans. It collected credible evidence to show that a number of officers committed murder, rape, and theft, as well as soliciting bribes. These findings support those of other organizations such as the International Crisis Group, Human Rights Watch and the Kenya National Commission on Human Rights. Abuse of power by police officers greatly compromises the effectiveness of policing.

The commission appears to suggest that errant police officers should be investigated and dealt with through the machinery of the proposed Independent Police Conduct Authority. This Authority is expected to have power to investigate public complaints against police and retrospective powers to deal with historical serious misconduct. Since there are no timelines on when this authority must be in place, it is hard to tell how long the victims of police crime will wait for justice.

The recommendations concentrate too much on the reform of the Kenya Police Service and the Administration Police. The NSIS also requires a total overhaul if the goal of democratic governance of security intelligence is to be achieved. Additionally, security reform will need to embrace the military

Specifically, it is important to take note of the following gaps in the report:

1. It is clear that Mr Muthaura acted arbitrarily, abused the powers of his office, and violated the tenets of civil service neutrality. It is not clear why the commission did not recommend sanctions against Mr Muthaura for abuse of office. These circumstances the commission established raise questions about whether, in a multi-party democracy that preaches political neutrality for the civil service, the Head of the Public Service and Secretary to the Cabinet should sit in, and exercise power over, the state’s key security agencies.

2. Kenya needs to re-examine the NSIS to determine how best it can serve the interests of Kenyans as opposed to the parochial interests of the regime in power. Although the Waki report says that NSIS was perhaps the best-prepared state security agency, it fails to sanction it for its blatant partisanship. The NSIS is one of the institutions that Kenya must constitute afresh as a matter of necessity and urgency. For as long as the President retains the power to appoint the Director-General of NSIS, security intelligence will always be dictated by the imperatives of keeping the ruling regime in power. The NSIS is not a democratic institution and its preoccupation with helping the ruling regime to hold power has ruled out the need for public accountability in its work.

3. The commission says the security machinery did a good job of collecting security intelligence in the run up to the election, but this information was not shared in time and in the right way. There is an urgent need to overhaul the police structure to embrace preventive policing. Among other things, this will require that quality, extensive and specialized planning that begins many months if not years before an event such as a general election.

4. On investigations, the commission’s recommendations are not clear. On one hand, the commission seems to go along with the Attorney-General’s suggestion that an independent and autonomous Directorate of Criminal Investigations should be created. On the other hand, it also suggests that in addition to developing workable and functioning independent civilian oversight arrangements, there should be provisions for some less serious allegations to be investigated and resolved by the police themselves.

This raises a number of questions. What are less serious allegations? Should the police handle cases where the less serious allegations are made against police officers? How would an independent and autonomous Directorate of Criminal Investigations function alongside independent civilian oversight arrangements?

5. Although the military may not have been intimately involved in the post-election violence, it is worth noting that the police undertook a joint mission with the Kenya Army to deal with the challenge posed by the Sabaot Land Defence Force, a militia group fighting for land rights. As the dispute over the result of the presidential election was raging, the SLDF was wreaking havoc in the districts of Mt Elgon and Trans-Nzoia.

In a joint operation against the SLDF termed Operation Okoa Maisha, the police and the Kenya Army are said to have committed ‘truly shocking’ human rights violations, ‘in particular, systematic torture.’

This activity raises a number of fundamental questions. First, how should the citizenry be policed especially in times of war? Second, how should joint operations of the police and the armed forces be conducted in a democracy? Third, how should allegations of improper conduct made by the citizenry against security forces be handled? In particular, how can the citizenry hold security forces to account in times of peace and in times of war? In this respect, it will be necessary to interrogate how the military works.

It is also worth noting that the power to deploy the military in the maintenance of internal order is not regulated. The Defence Council is not required to consult or seek the approval of Parliament. Given that the Armed Forces are not subject to the ordinary courts of law, it is therefore difficult for the public to hold the army to account for transgressions in the course of maintaining internal order.

CONCLUSION

In view of the commission’s highly credible and damning findings, there is an urgent need to overhaul the state security machinery.

Overall, the Waki commission largely fulfilled its mandate. It established credible evidence that clearly demonstrates the actions or omissions of State security agencies during the period when the post-election violence occurred. Nevertheless, it did not suggest concrete measures for bringing to justice police officers responsible for criminal acts. This is a glaring shortcoming in the report. This could unduly delay efforts to give justice to the victims of police crime.

Secondly, the report does not make recommendations on how the security intelligence and policing agencies can be integrated in a legal and accountable manner. This measure is particularly necessary if Kenya is to have democratic governance of its security. Additionally, the commission should have suggested how public actors such as the Commissioner of Police, the Director-General of the NSIS, and the Head of the Public Service and Secretary to the Cabinet should be sanctioned for their abuse of office since evidence of this is abundant throughout the report.

The greatest obstacle to the implementation of the Waki report is lack of political will. Many politicians are apprehensive that their careers will come to a halt should the recommendations of the Waki report be acted on. The international community must stay engaged; Kenyans must view the Kenya National Dialogue and Reconciliation process as an international initiative.

* This article was written collaboratively by Kenyans For Peace, Truth and Justice (KPTJ). KPTJ is a coalition of over 30 Kenyan and east African legal, human rights, and governance organisations, together with ordinary Kenyans and friends of Kenya, working for equitable justice for all Kenyans. For more information, please visit: [email protected] or comment online at http://www.pambazuka.org/

The leader of anti-government demonstrations in Madagascar said on Tuesday he would not talk with the government until those behind the death of an opposition supporter were brought to justice. But Andry Rajoelina, the 34-year-old mayor of Antananarivo, said he was calling off plans for another day of protests after Monday's demonstrations degenerated into the worst day of street violence for years on the Indian Ocean island.

‘Manifesto Of Beginnings’ by was commissioned by the BBC World Service to mark the one-year anniversary of Kenya's stolen election. The title arose from the questions in the poet's mind, ‘How do we begin to recount all the betrayals and broken promises? And where do we begin when the roots of the post-election violence go all the way back to before Kenya's independence?’ This piece was first broadcast on 27 December 2008 on the BBC World Service on The World Today programme, and is reproduced here www.shailja.com.

cc. Following the creation of two commissions by the Kenya National Dialogue and Reconciliation (KNDR) to address both post-election atrocities and historical human rights violations, Ndung’u Wainaina considers the limitations and weaknesses of an amnesty process likely to disadvantage victims in multiple ways. Signed into law with minimal public consultation, the Truth Justice and Reconciliation Commission (TJRC), Wainaina argues, possesses deep flaws that will ultimately block rather than facilitate the accountability and national healing the country so desperately needs.

cc. Ordinary Kenyans are suffering from their coalition government’s lack of focus, writes George Nyongesa. High food prices, the attempted stifling of the media and increases in the cost of fuel all conspire to aggravate the hardship felt around much of the country, the author contends, a hardship that is all the more unpalatable in the face of tax exemptions for MPs. From the grassroots perspective, Nyongesa maintains, the coalition government looks decidedly out of touch.

cc. Following the unprecedented focus on sexual and gender-based violence by the Waki Commission, Kenyans for Peace, Truth and Justice (KPTJ) reviews the commission’s findings. While supportive of its recommendations, KPTJ emphasises that the commission’s report is lacking in its focus on individual experiences at the expense of investigating patterns of conflicts, violations and violence. For the purpose of ensuring the implementation of these recommendations, KPTJ sets out a series of essential steps for the prevention and response to instances of sexual and gender-based violence, including greatly improved access to health and legal services for victims, and the removal of any form of amnesty for the perpetrators of sexual crimes.

cc. If the bi-partisan commission, headed by South African Judge Johann Kriegler, hoped to avoid controversy by making ambiguous statements and generalised conclusions, it walked into the eye of a storm. Although the commission completed its work on schedule and adopted many recommendations Kenyans have been making on the kind of electoral system they would like to have, a keen reading of its report shows that it went off the tracks as soon as it began the search for truth.

Civil society monitors noted that after successful countrywide visits, in which investigators identified 114 potential witnesses, the Kriegler commission chose not to record their statements or summon them to give evidence. Based on the information and evidence received even before the commission was set up, there were complaints about the results from 49 constituencies. The IREC (Independent Review of Election Commission) chose not to summon the concerned returning officers to explain alleged anomalies, which ranged from the alteration of documents to filing improper election returns.

The commission chose not to summon many of the 32 ECK (Electoral Commission of Kenya) commissioners and staff who were at the nerve centre of the discredited tallying system that produced a presidential result that even IREC does not believe. Instead, the commission chose to listen to the ECK chairman, one commissioner and 10 staff. For corroboration, it took evidence from only one domestic observer, and then closed shop.

No heed was paid to allegations of a break-in at the Kenyatta International Conference Centre (KICC) on 31 December 2007, which is recorded at the KICC police station as OB NO. 7 of 2 January 2008. No attention was paid to issues that required further investigation, such as local administration officers issuing identity cards to schoolchildren so they could vote. Or presiding officers neglecting to accompany ballot boxes. Or fake ballot papers floating around, or even parallel ballot papers being printed.

No inquiry was made into the allegations that security agents were deployed to rig elections, despite the fact that two police officers lost their lives because of such information reaching the public.

The commission did everything possible to avoid getting to the truth. The statistical analysis it chose to use was not only ineffective and poorly employed, but also blinded the commission to what else it could do with the results to obtain the truth. The IREC chose not to draw on local experts who could have performed a more effective analysis.

In sum, the Kriegler report is a half-baked job that attempts to cover up offences committed by people who deserve no such protection. A detailed analysis of its methodological flaws is carried in the Comments & Analysis section of this issue of Pambazuka News, and what follows is an overview of the IREC’s performance.

10 QUESTIONS KRIEGLER REFUSED TO ANSWER

1. Why did President Kibaki choose to ignore the Inter-Party Parliamentary Group (IPPG) in selecting the electoral commissioners?
2. Why was the mandate of the experienced deputy chairman of the ECK not renewed and why was he replaced by Kibaki’s former family lawyer?
3. Why were previous demands for electoral reforms ignored?
4. Why did the ECK choose not to utilise the IT equipment it had access to?
5. Why did the ECK recruit staff who lacked competence, and not give them adequate training?
6. Why were the ECK staff posted to work in their home areas?
7. Why did the Nation Media Group’s database crash on the evening of 28 December, and why did KTN (the other major Kenyan news network) management around the same time tell newsrooms to only broadcast ECK data?
8. Why did the ECK chairman, on the morning of 29 December, complain that he couldn’t reach his commissioners in PNU (Party of National Unity) strongholds on the phone and hint at a ‘cooking of figures’?
9. Why was the counting and tallying marred by ‘massive arithmetical errors by returning officers’ when every mobile phone had a calculator function?
10. Why did the commissioner of police prevent the public from coming near the KICC?

THE GOOD, THE BAD AND THE INCOMPETENT

The IREC deserves praise for producing its report on deadline. This is a marked departure from the conduct of previous commissions of inquiry.

It is important to point out, however, that the report suffers from two principal shortcomings resulting from the methods the commission adopted:

1. On witnesses, the investigation appears to have largely relied on the evidence of the prime players, that is the Electoral Commission of Kenya (ECK). It failed to look for evidence either to corroborate or contradict what the ECK said. In dealing with complaints about constituency results issues, evidence from others present during the process such as security agents, observers or voters, and not just from the returning officers in question, would shed light and sharpen the findings.

The rules of evidence and investigation require that you do not rely on the uncorroborated evidence of one player. One would also have expected that the interviews of ECK commissioners could have been expanded to include other commissioners (only a small selection of them was interviewed). The total number and spread of people who testified under oath is too thin to have given the commission the totality of the evidence required to arrive at factual and accurate findings.

2. On the statutory forms and the allegations surrounding the tallying process, the approach adopted by the commission in determining whether it was error or fraud that occurred at the KICC was also limited. A more thorough forensic analysis would have determined whether it was error or fraud that occurred during the tallying of results and filling of statutory forms. This audit could have included examining documents, such as selected Forms 16, 16A and 17A. In addition, it might have helped, after dealing with the legal issues surrounding this, to have conducted a physical inspection and recount of ballots in a random, select number of ballot boxes.

The commission’s full report is analysed below along six thematic lines drawn from its terms of reference.

1. CONSTITUTIONAL AND LEGAL FRAMEWORK

THE GOOD

The report admits that there is a need to expressly provide for the right to vote in the constitution. It also recommends merging all electoral laws into one, with a provision included to set up a court to resolve disputes over elections.

Not every problem facing the country can be resolved through constitutional and legal change alone, however. Kenya, the report says, must undergo societal change and develop a culture for tolerance, fidelity to the law, honesty and transparency.

THE BAD

Although the report indicts the ECK for incompetence and cites institutional collapse, it fails to assign individual responsibility for critical lapses. This presents opportunities for the Kenyan habit of blaming everything on the need for legal reform without requiring adherence to existing laws. The IREC is right to call for an end to the culture of impunity, but it is not forthright enough in pointing out officials and institutions that did not carry out their mandate as required by law, and suggesting what should happen to them.

THE INCOMPETENT

The need to change Kenya’s electoral system has been acknowledged for a long time. Part of the blame for the crisis Kenya found itself in has been laid on the first-past-the-post electoral system, which is said to encourage conflict and not conciliation. Although the report points out the shortcomings of the current system and deficiencies in the systems proposed in the Bomas and Wako draft constitutions, its attempts to highlight the shortcomings of a mixed-member representative system are unconvincing.

The report also fails to discuss the law governing presidential elections and thus passes up an opportunity to tie up all the issues requiring reform around the electoral process.

2. THE ELECTORAL COMMISSION OF KENYA (ECK)

THE GOOD

The president’s unilateral appointment of commissioners, the ECK’s unwieldy structure of too many commissioners, and the lack of separation of functions between commissioners and the secretariat are identified as problematic. The report also finds shortcomings in the lack of specific qualifications and qualities needed for one to be appointed commissioner, and the poor training for staff who handled the elections.

THE BAD

The report is thin on the role the appointments played in the ECK’s loss of credibility and performance. A more robust analysis of this issue would have been useful.

Although the report recommends that clear lines of individual responsibility are needed for service delivery among commissioners and staff, it fails to identify instances of the commissioners or staff failing to be accountable.

THE INCOMPETENT

Due to the inept manner in which the ECK conducted the elections, the IREC should have suggested how to hold individuals and the institution accountable to their mandate and actions. Even as currently structured, it is clear what particular aspects for which individuals are responsible. What measures can be used to review the performance of the institution and of the individuals in it? How do you hold people and the institution accountable to their mandate and actions?

3. PUBLIC PARTICIPATION

THE GOOD

The report decries the partisan nature in which most institutions carried out their mandates and the pervasive levels of negative ethnicity that accompanied the electoral process. The discussion on opinion polls and the media is largely apt. The discussions about levels of partiality by faith-based organisations and civil society organisations (CSOs) and performance of the Kenya Elections Domestic Observation Forum (KEDOF) are also apt and worth greater introspection by the different categories.

THE BAD

The report proceeds as if there were only two political parties in Kenya: the Party of National Unity (PNU) and the Orange Democratic Movement (ODM). Although they were the main protagonists in the dispute, there were other parties, notably ODM-Kenya. A more comprehensive analysis and inquiry is required, incorporating other parties in the discussions on skewed party nominations and performance.

In the run-up to the 2007 elections, political parties were registered and run in a loose legal environment. Although the Political Parties Act is now in force, it is the discredited ECK that is expected to midwife it. A major shortcoming of the report is the failure to lay out how to restore confidence in the ECK.

THE INCOMPETENT

The section on complaints against civil society organisations and election observers lacks dispassionate and rigorous analysis. It merely catalogues verbatim complaints from various groups without contextual analysis.

4. ORGANISATION AND CONDUCT OF THE 2007 ELECTIONS

THE BAD

The finding that the ECK did not perform its role adequately with regard to redrawing constituency boundaries is overly harsh and misplaced. The current number of constituencies is the maximum allowed by the constitution. The ECK had called for changes and pleaded with parliament, but partisan politics ensured that the review of constituencies never took place.

THE INCOMPETENT

The discussions on party nominations are also conservative. The high number of irregularities, incidents of violence and outright manipulation during the party nominations was markedly graver than the report paints them.

5. TALLYING

THE GOOD

The report says it is impossible to know who won the presidential election since the results and the process of recording them were heavily polluted. The ECK failed to guarantee that the results accurately reflected the votes cast. There were many problems in the tallying at the polling station and at the constituency level.

THE BAD

The report adds that there was no evidence of crime or irregularities at the national tallying centre. The commission appears to have handled the national tallying centre differently from the field, adopting a defensive approach to some of the issues raised, including KPTJ’s reports.

THE INCOMPETENT

The most important aspect of the election cycle, requiring utmost integrity, is the counting and tallying. Yet the commission does not say whether these two processes met the standard. The report says counting and tallying at polling stations and/or constituency tallying centres lacked integrity, but shies away from making a definite conclusion on the integrity of the tallying process at the KICC. The report dismisses the complaints raised about the tallying process. If one puts aside the complaints, what does the commission think of the integrity of the tallying process at the KICC? Failing to address this question adequately is a negation of the IREC’s mandate. Without addressing this aspect of the process, is it not possible to reach a conclusion on the integrity of the results of the 2007 elections.

A more thorough and factual analysis was needed to determine whether the pollution of the results was due to errors from the field, errors at the KICC, or both. Were these errors deliberate and schematic, pointing to some element of fraud, or were they accidental and due to incompetence?

6. ANNOUNCEMENT OF RESULTS

THE GOOD

The report reveals that provisional results announced at the KICC differed from the actual results captured in the original Form 16. The manner in which these errors were treated differed from case to case. In some cases, the errors were corrected, while in others they were not. The report indicates, however, that changes continued being made to the results even after the declaration of the winner, some of which were evident in the published results of 9 January 2008 and after.

THE BAD

Officials at the ECK seem to disagree on whether it was permissible to make changes once the provisional results had been announced. The results announced by the ECK are, therefore, not accurate. The issue that the IREC should have answered is the reasons for these anomalies. It fails to do so.

THE INCOMPETENT

Although the IREC concludes that there was no evidence of fraud or rigging at the KICC, two issues stand out in the chapter discussing this fact. First is the dissent by some commissioners. Since this was a critical component of the IREC’s mandate, one should not just take the finding at face value. The commission was unable to arrive at a unanimous verdict on the accuracy and integrity of the national tallying process. Several commissioners, who were not convinced about the conclusion on the lack of fraud at the tallying centre, dissented.

Normally, dissenting minority opinion is noted as the position of the majority is adopted. In this instance, the totality of unanswered questions and errors documented by the commission – including differences between announced figures and those on some copies of Form 16, and wrong entries in the forms and the ECK database resulting in the supply of false information – points to two possibilities:

a) That all these were due only to the poor training and poor calibre of staff; or
b) That this resulted from a deliberate and planned scheme to rig the elections, as the dissenting commissioners imply.

Without attempting to conclusively determine which of these two groups is factually right, the commission should not have conclusively taken either of these positions on the basis of gut feelings or inconclusive investigations, as is evident from chapter six of the report.

GLARING OMISSIONS

The report discusses the hurried and low-key swearing-in ceremony of the president and the reported unhappiness of the ECK chairman with the manner in which the ceremony was conducted. This event needs to be viewed on a continuum with the announcement of the results. If the ECK chairman says he was not happy yet played along, does it suggest that ECK was fully in control of the elections? If the evidence was that the ECK was not in control, then who was?

Although the report says that it is unnecessary to reach a verdict on whether the stated complaints and irregularities result from human error or fraud, this issue is crucial to the integrity of the presidential results. The report only says that the conduct of the 2007 elections was so materially defective as to make it impossible to determine the true and reliable results for the presidential election. What does this mean in practice and in law? The commission needed to answer this question.

One of the key issues that has bedevilled Kenyan society is the culture of impunity. Many Kenyans, especially in public service, operate in total disregard of the law. In many cases the public officers who disregard the law do so fully aware that no legal action and culpability will follow their actions. Invariably, the manner in which the legal system has operated supports this position. This culture was neatly evident in the manner in which the 2007 elections were conducted.

Although falling short of assigning individual blame for the 2007 election debacle, the report touches on the cause of the problem. The IREC correctly identifies the culture of impunity as having pervaded most sectors of the Kenyan society and recommends urgent redress. However, except for these positive statements, the report fails to identify any participant in electoral malfeasance. It does not even say that such and such person or institution requires further investigation.

After determining that the ECK is structurally and functionally defective, the commission should have proposed a way forward. It should have offered Kenya a clear roadmap to deal with the failure of the ECK and its managers.

The Kriegler report did not provide Kenya with that roadmap for dealing with the ECK. Neither did it determine the extent of electoral offences committed, or identify who committed them. Simple as these actions may appear, they would have gone some way to restoring Kenyans’ faith in the power of the ballot.

* This report was jointly produced by [email protected] or comment online at http://www.pambazuka.org/.

cc. 2008 began for Kenyans with the murder of Kenya’s democracy. It ended with the son of a Kenyan migrant winning the US presidential race. In editing this special issue of Pambazuka News, ‘Kenya – one year on’, our guest editor, Shailja Patel says the the questions that arise apply to both these historic events.

How do we create genuine political, social and economic transformation, rather than just settling for symbolic change?

How do we bring critical thinking and evidence-based analysis to hope and vision?

How do we address the truth of mass crimes against entire populations, while remaining open to visionary possibility?

Three pervasive myths still circulate about the Kenya Crisis.

First, that it is over. In May 2008, the host of NTV’s breakfast show asked me, ‘Shouldn’t we just get over it and move on?’ On 27 December, the one-year anniversary of the stolen election, the presenter of the BBC’s The World Today programme struggled with irritation when I kept harking back to the civil coup. ‘Hasn’t the country moved on?’, he demanded pointedly.

The answers lie in Ndung’u Wainaina’s exposure of the fundamental flaws of the of displaced Kenyan women and girls. We cannot move on because the post-election violence simply ripped the lid off deep historical chasms and inequities that have never been truly laid out for resolution.

The second myth is the idea that ‘It is impossible to know who really won the 2007 election.’ Therefore, revert to myth one – get over it and move on. I am frequently challenged on my use of the term ‘civil coup’. Anyone who accepts the deeply compromised Kriegler Report at face value must read the articles to understand how Kenyans have still not received the truth they deserve about the election.

The third myth has practically spawned its own genre: the stories of ‘what saved Kenya’. My favourite among these so far was recounted to me, in all earnestness, by a Ugandan lawyer: ‘It was Museveni who told Raila and Kibaki: Guys, you need to sort this out. Remember how he arrived in Kenya with that briefcase under his arm? The mediation agreement was inside.’

The lessons of how Kenya was pulled back from the brink of anarchy are vital for the rest of the continent. They highlight the unsung importance of skilled civil society professionals doing their jobs and doing them excellently. Of communities standing up for their rights, against poverty and marginalisation. Of pan-African progressive networks. Of building movements and alliances. Building institutions, infrastructure, and coalitions. So that in the moment when somebody needs to speak, the channels exist, and open, for them to be heard.

On 3 January 2008, as bloodshed escalated across Kenya, all three daily newspapers agreed to run the same banner headline: ‘Save our beloved country’. In the year since, Kenyans have moved from that supplicant pose to one of palpable, vocal outrage at the repeated betrayals of the political class. It is an outrage that has taken to the streets and will not be silenced.

Where do we seek visionary possibility in this moment, when it seems that the ruling class will sell the very soil from under our feet? I find it in the heroes of Kenya’s peoples’ movement. In Shailja Patel is an award-winning Kenyan poet, writer, and political activist.
* Please send comments to [email protected] or comment online at http://www.pambazuka.org/.

Based on personal interviews with Palestinian families, Oroub El-Abed examines the effects of displacement and the livelihood strategies that Palestinians have employed while living in Egypt. The author also analyzes the impact of fluctuating Egyptian government policies on the Palestinian way of life. With limited basic human rights and in the context of very poor living conditions for Egyptians in general, Palestinians in Egypt have had to employ an array of both tangible and intangible assets to survive.

The Council for the Development of Social Science Research in Africa (CODESRIA) is pleased to announce the seventeenth competition under its Small Grants Programme for Thesis Writing. The grants are designed to contribute to the development of the social sciences in Africa, and the continuous renewal and strengthening of research capacities in African universities through the funding of primary research conducted by post-graduate students and professionals.

The Seventh Session of India-Tanzania Joint Commission on Economic, Technical and Scientific Cooperation was held in New Delhi from 13-14 January 2009. The Indian delegation was led by Mr. Nalin Surie, Secretary (West), Ministry of External Affairs and the Tanzanian delegation by Hon. Prof. David H. Mwakyusa, MP, Minister of Health & Social Welfare of Tanzania.

Nigeria and Dubai have signed a preliminary agreement worth $16 billion to develop oil and gas infrastructure in Africa’s top crude producer, officials said. The deal will see Dubai World Corporation (DWC) wholly-owned by Dubai emirate, investing in projects in the restive Niger Delta, Africa’s oil and gas heartland, which accounts for nearly all of Nigeria’s around 2.0 million barrels of crude per day.

The Tata-led Neotel consortium and mobile phone giant MTN South Africa have signed an agreement to jointly build a 2 billion rand ($202 million) 5,000-km optical fibre network that will connect all major centres across this country.

Four Chinese contractors have become the latest casualties of a global purge on corruption in World Bank-funded projects with a huge impact on Kenya’s construction scene. Caught in a corruption muddle that was instigated by a construction tender award scandal in the Philippines are two Chinese companies — China Road and Bridge Corporation and China Wu Yi — that control a significant share of the Kenyan construction market.

The first has to do with commodity prices. The second is the seeming retreat from Africa of investors and entrepreneurs from China, which is surprising. Until recently, it appeared that Africa's dependence on commodity exports would not hinder its economic rise. Growth rates of more than 5 percent for the last few years have been fuelled by the large increases in international commodity prices.

The World Bank’s decision to shut out four Chinese firms from taking part in any of its projects around the world is likely to draw a cold reaction from African countries, many of which have turned to the Far East for economic partnerships. Political analysts say the World Bank’s move against the firms – three of which have lucrative infrastructure contracts in Kenya – is bound to be interpreted as a move against China’s growing political and economic clout in Africa by Western economic powers.

Freedom House is an independent non-governmental organization that supports the expansion of freedom in the world. Freedom House functions as a catalyst for freedom through its analysis, advocacy and action. Freedom House seeks a Director for its Ethiopia Human Rights Technical Assistance Program to be based in East Africa.

Kenyan authorities have launched an investigation into the disappearance of $100m in oil imports as part of a corruption scandal that threatens to disrupt fuel supplies to east Africa. According to the Kenyan energy ministry, the oil was allegedly released – and sold – without the authorisation of the banks and trading houses that financed it.

Join Ashoka's Changemakers competition "GameChangers: Change the Game for Women in Sport," a search to identify sport innovations that challenge the barriers girls and women face around the world. Submit your entry by February 11, 2009 at to take advantage of the funding opportunities and global exposure, while contributing to the next big change!

Ghanaian President John Evans Atta Mills on Thursday released the initial list of the names of his cabinet and gave an indication that he would fulfil his pledge of 40 per cent of them being women. The list, which included a blend of old and new faces, has been forwarded to parliament for vetting.

One of Mauritania's political parties, the Alternative Party, has nominated its president, Mohamed Yehdi Ould Moctar Hacen, as its flag bearer in the 30 May 2009 presidential election in the country, the party said in a statement here Thursday.

The Chinese Great Wall Industry Corporation is to replace Nigeria's first-ever communications satellite, which failed in orbit 10 Nov. 2008, according to local media reports. The agreement to replace the satellite, tagged 'NigComSat-1', was signed by the Chinese firm and the Nigerian Communications Satellite Limited 12 Dec. 2008.

African states will contribute additional troops to the United Nations, African Union Hybrid force in Darfur (UNAMID) in the coming months, with an advance party expected from Tanzania, the force said Wednesday. Some African states, among them Egypt, Ethiopia, Tanzania and Nigeria are expected to deploy hundreds more troops within the next two months as part of the Mission's efforts to speed up deployment in Darfur to ensure better safety and protection of local civilians, UNAMID said.

As Kenyan President Mwai Kibaki announces a national emergency and declares that 10 million people don’t have enough food to eat, results of an International Rescue Committee survey show that an alarming 22% of children under five are malnourished in one part of the country worst affected by the food crisis. The IRC’s survey in Kakuma division, Turkana north, found that almost 40% of local people were surviving on just one meal a day. Malnutrition rates among children under the age of five were 22% — that’s much higher than the 15% rate which the World Health Organization uses to determine an emergency situation.

Striking Zimbabwe teachers on Thursday vowed to remain on strike until the government pays them salaries foreign currency, a teachers union said. "Our industrial action continues unless we are paid 2,200 US dollars per month,"Takavafira Zhou, Progressive Teachers Union of Zimbabwe (PTUZ) president said at a media briefing.

Zimbabwe media organisations have been licensed to sell their newspapers and other products in both local and foreign currency. With effect from 22 January 2009, a copy of The Herald was selling at US$1 or the equivalent in pound sterling, pula or rand. The Zimbabwe dollar price would be determined by the market rate of the day. On the same day, the weekly privately owned Financial Gazette also started selling its 22-28 January edition at US$2 a copy.

Libya's only internet service provider is launching its first commercial wireless network which it says is one of the most advanced in the world. The state-owned firm said only a handful of countries have rolled out the advanced internet connection known as WiMax on such a wide scale. Libya Telecom and Technology aims to start with WiMax coverage, including a mobile feature, in 18 cities.

Uganda's Supreme Court has ruled in a case involving more than 400 death row inmates that the death penalty is constitutional. However, it said that hanging was cruel and recommended that parliament consider another means of execution. The judges also said it was unreasonable to keep convicts on death row for more than three years.

Kenya's parliament is reconvening shortly, two months before it was due to end its recess to pass legislation setting up a poll violence tribunal. The court will seek to try the ringleaders of the unrest that broke out after the December 2007 elections. This was the recommendation of a commission of inquiry into the clashes.

Lesbian, gay, bisexual, trans, intersex and queer young people from all over the world can sign up to send and receive messages with other activists. Members will be encouraged to share their experiences, ideas and expertise, and to work together to solve problems and run projects. The working languages of the list are English, Spanish and French.

The International Federation of Journalists (IFJ) has welcomed the release of Somali journalist, Abdifatah Mohamed Elmi, after 146 days in captivity. Photojournalist, Abdifatah Mohamed Elmi, was abducted on August 23, 2008 with two foreign journalists, namely Amanda Lindout of Canada and Nigel Brenan of Australia. Elmi's two drivers, Mohad Isse and Marwali were also abducted.