The Kibaki administration will be evading a historic responsibility if it fails to resolve issues that are pertinent to a peaceful transition and the very future of democracy, human rights and the rule of law in Kenya. The NARC government was voted into power primarily because the Moi government was regarded as deceptive and undemocratic. Undemocratic because the previous elections were characterised by violence and claims of malpractice; the state instruments were partisan; the government was intolerant to divergent opinions; and the government was insensitive to popular demands. However, since NARC came to power, there have been undercurrents that the Kibaki administration is no different from its predecessor after all.

Firstly, though the Kibaki government is more tolerant to different opinions, recent events indicate that the government is growing sensitive by the day. Indeed, like its predecessor, the administration is eager to use the oppressive tools of the state, including the provincial administration, to muzzle opposing opinions. The recent attempt by the administration to bar a Baringo Central MP from addressing his constituents has been interpreted in this light.

Paradoxically, while the NARC leaders were in the opposition, they vigorously campaigned for the dismantling of the provincial administration. The then official opposition party, Kibaki’s Democratic Party of Kenya, presented a memorandum to the constitution of Kenya Review Commission calling for the scrapping of the administration. However, on assuming power, they have not only defended the administration, but an assistant minister in the office of the president has been quoted as saying they will weed out those sympathetic to the previous government from the administration.

Secondly, the NARC leadership has increasingly been using the same old methods. In the recently held by-elections, NARC ministers have been criss-crossing the affected constituencies using the trappings of power, state resources and promising largesse from the state. Yet, when they were in the opposition last year, they constantly accused KANU, which was in power then, of using state resources for partisan gains. Closely related to that, of course, is the old tactic of divide and rule and the mentality that only those who support the government will benefit from government resources. Week after week, NARC ministers are quoted exhorting the various ethnic communities to support the government if they hope to benefit from its largesse.

Not even yesteryears’ democracy and human rights crusaders are immune from this anachronistic thinking. Indeed, when the president visited his home turf two months ago, there were deliberate efforts to isolate and condemn a part of Central Province that voted for the opposition. Apparently, the right to an opinion and association has lost meaning now that NARC is in power.

Thirdly, the old issue of selective application of the law has reared its ugly head again. There are increasing concerns that the war against corruption is turning out to be selective and targeted at specific individuals and families. For many key players in the current administration were in fact stalwarts of the previous administration. It’s therefore highly inconceivable that they were not involved in the corruption of that era. Indeed, their names appear in several public accounts and public investment committee reports. Others were mentioned in the various human rights reports as players in various human rights abuses, including ethnic violence. Yet, they continue serving in the cabinet as ministers, assistant ministers and others as influential NARC MPs, while government officers continue making allegations against certain families and individuals. Again the old adage that charity begins at home appears to have lost its meaning.

And fourthly is the question of the ruling coalition’s internal democracy. As it were, a political party cannot give a country what it lacks internally. Thus, NARC cannot entrench democracy in the country if it cannot grant the same to its members. One measure of a party’s attitude towards democracy is its capacity to subject its leaders to popular mandate, which is through party elections. Yet, this is the most divisive issue in NARC.

The established tradition worldwide is that parties, whose ideological persuasions are close, form coalitions after elections in order to constitute a government, where no single party wins a majority. For NARC, political parties and amorphous groups formed the coalition regardless of their political persuasions to win the December 2002 elections. Thus, the party lacks clear structures and leadership, has no quantifiable membership, lacks unifying ideology and, much worse, has not agreed whether to be one party or to retain its current amorphous state. The persistent war between factions of the coalitions means that the party will take sometime before it can guarantee its membership internal democracy. And that undermines the capacity of the coalition to entrench democracy in the country.

On the human rights front, the NARC government has done better than the previous KANU one. On assuming power, it accorded human rights campaigners positions in its ranks, opened torture chambers - among them the famous Nyayo House - and cautioned the security organs against abusing suspects’ rights. However, there have been genuine concerns that the country may be sliding back into the days of torture. In recent weeks, there have been complaints that police officers are perpetrating arbitrary arrests; extra-judicial killings are still prevalent while the security officers have been accused of torturing suspects, notably in Kisii.

Moreover, the government recently initiated a security operation in Turkana district, which was called off after a fierce battle between the residents and the security forces. While the number of the dead was given as six, there are fears that the operation left behind trails of human rights abuses, which are not yet documented.

There are also expressions of genuine grievances arising from the recent efforts to form a Truth, Justice and Reconciliation Commission. The concerns are that the proposed commission is a tactic to witch-hunt and humiliate certain individuals and communities, and not an effort to promote national reconciliation.

Secondly, the old tactic of destroying people’s income basis in an effort to remove them from certain areas, which was perfected in the 1990s, has been brought back. In the last few weeks, the government, in conjunction with the Nairobi City Council, has been demolishing informal business structures in order to remove those businesses from supposedly road reserves. The problem is that this destruction, which has only been conducted in upmarket areas, leaves many people without an income and thus compromises their economic rights.

More importantly, the recently published suppression of terrorism bill has sent shock waves into the spines of many Kenyans and human rights activists. Indeed, the bill has met resistance from many quarters including members of parliament. The resistance has its roots in two areas. Firstly the government published the bill without consulting with stakeholders, and appeared to be bowing to pressure from both the American and the British governments. Indeed, despite protests against this bill, the government has indicated its resolve not to withdraw the bill. Secondly, and much worse, the bill is highly repressive, runs against the national spirit and militates against our national sovereignty in favour of American and British interests.

In their analysis, the Chambers of Justice, a legal civil society group, says the bill germinates out of the US Patriot Act 2001, whose official title is Uniting and Strengthening America by Providing Tools Required to Intercept and Obstruct Terrorism Act. In the US, the group notes, the “application of the Patriot Act by the US government has resulted in some of the grossest violations of human rights ever revealed since the Nuremberg trials.” It cites the case of the al-Qaeda suspects who are still incarcerated incommunicado at the US military base in Quatanamo Bay in Cuba, two years after they were arrested in Afghanistan.

The bill contravenes Sections 72, 74(1), 77 (2a), 77(4), 77(8), 82 and the bill of rights; contravenes the penal code section 9; and lowers the standard of the burden of proof as required in all criminal cases. Needless to add that the bill lacks adequate provisions for compensation of victims of terrorism and gives sweeping powers to the police. These powers include powers to detain cash belonging to a suspect and forfeits the property of suspected persons to the state. And, ironically, the bill not only allows foreign security forces, notably American and British, to arrest and detain Kenyans, but it also sanctions torture and police brutality. Indeed, there are reports that a team of Kenyan CID officers and the American FBI agents tortured suspects arrested recently in Mombasa on suspicion of terrorism.

And lastly, there is the issue of ratification and adoption of the international human rights conventions in Kenya. Kenya is a signatory to such important treaties as the African Charter of Human Rights and People's Rights (ACHPR) of 1981, the African Charter of the Rights and Welfare of the Child, and which are both acceptable by NEPAD's human rights committee. However, the country still lags behind in legislating and effecting these conventions.

* Evans Wafula is an advocacy officer with the Independent Medico Legal Unit in Kenya.

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