Post-electoral violence in Kenya
On the 27th of December 2007 Kenyans went to the polls for the 4th time in their history, to elect the President and the Parliament. Early comments on the results of the elections praised the lesson of democracy that Kenyans were giving to the rest of Africa, showing democratically their disappointment with the previous government of President Kibaki and his party. But they were just that: early comments. A month later, a thousand persons had been killed, more then 1,200 women had been raped, uncounted is the number of wounded and more than 300,000 people are internally displaced as a consequence of the violence following the grotesque announcement of the results and the quick swearing-in of President Mwai Kibaki.
The extent of the violence, absurdly unexpected, and the pitiful reaction of the institutions, which clearly showed their inability of restoring peace and stopping the killings, called for an external intervention. Many eminent Africans came to Kenya to help, with a clear mandate as in the case of John Kufuor, President of the African Union (AU), or in an attempt of bringing reconciliation as Archbishop Desmond Tutu. These partially successful efforts culminated in the appointment of an AU mediation team of Eminent Africans, led by former UN Secretary General Kofi Annan and composed of Graça Machel, former South Africa and Mozambique first lady and human rights activist, and Benjamin Mkapa, former Tanzanian President. The Annan team is solidly backed by the international community, which in repeated occasions manifested its support and suggested that were mediation efforts to fail, an external intervention would be considered. Kenya has been for many years one of the most stable countries in the region, involved in peace efforts in neighbouring countries like Sudan and Somalia. Additionally, the economic impact of the post-electoral violence reflected not only on Kenya but on the region itself: 40% of Sudan import comes from Kenya, and the blockage of road transport which kept 18,000 containers stuck in the port of Mombasa affected the whole of East Africa, and limited the humanitarian response in the region, which relies heavily on Mombasa port. For the United States, Nairobi is a strong ally in the war against terrorism in Eastern Africa. All these reason pushed the international community to warn the Kenyan leaders that a solution needs to be found without delay: these are the words of US Secretary of State Condoleezza Rice who recently visited the country to boost the mediation effort, after UN Secretary General Ban Ki-moon and several other personalities, mainly former Presidents of African countries.
The team lead by Annan started working on January 28, immediately setting an agenda for the talks which included: ending the violence, solving the disputed presidential election results, correcting the unequal distribution of resources and resolving the land question. The two parties in the dispute, President Mwai Kibaki and his Party of National Union (PNU) and allies, and Raila Odinga and his party, the Orange Democratic Movement (ODM), committed to the mediation process and to its results. Three negotiators were chosen for each side, and a fourth one joined later.
The PNU negotiation team is led by the Justice Minister Martha Karua, considered a hardliner, and composed of Prof. Sam Ongeri (Minister of Education), Mutula Kilonzo (ODM-Kenya Secretary General) and Moses Wetangula (Minister of Foreign Affairs). The ODM team is composed of Musalia Mudavadi, running mate of Raila for the presidential elections, hardliner William Ruto (Eldoret North elected MP), Dr. Sally Kosgei (former head of civil service), and James Orengo. The talks formally began with a declaration by Kofi Annan that the settlement on electoral dispute could be reached within one month, while the other fundamental issues that need to be addressed will require at least one year. On Monday 25th of February, the talks will enter their fifth week, and the process is currently stalled. The Kenyan National Dialogue Team (KNDT), as the eight negotiators are known, agreed to work on four agenda items: the first being the immediate ending of violence and the restoration of fundamental rights and liberties which included the investigation and prosecution of killings, the lifting of the ban on live coverage by media, imposed by the government immediately after the swearing-in of Kibaki, and the banning of hate messages by radio stations. Fundamental was the ending of violence within 7 days from the beginning of negotiations, which even if it was not completely achieved at least stopped massive killings. However, due to the current halt on talks, rumours are spreading the violence will resume shortly.
The second item on the agenda included measures to address the humanitarian crisis, promote reconciliation, healing and restoration. It is meant mainly to address the needs of the over 300,000 people who have been displaced by post-electoral violence. The first two issues were settled quite rapidly, respecting the timeframe initially given by the mediation team. Unfortunately, accord on how to overcome the political crisis (third item on the agenda) has not proved as easy. It is believed that the political situation can be solved only through some form of power sharing, constitutional reform and reform of the electoral legislation. The two parties had very different stands, but eventually agreed on the creation of the Prime Minister (PM) position, which did not exist in Kenya since 12 December 1964 when Jomo Kenyatta assumed the charge of first President. Notwithstanding the agreement on the PM post, heavy differences subsist on its functions: ODM advocates for a rapid set-up of a strong PM with executive powers, based on the Bomas draft(1), two deputies and the separation of State and Government, where the President would be head of the State and the PM, head of the Government. PNU position instead, based on the Wako draft(2), favours the Tanzanian model: the PM enjoys limited power, is the government leader in the National Assembly, and is appointed by the President who is the Head of both State and Government. PNU and allies maintain that giving executive power to the PM would require constitutional amendments, and that the necessary timeframe would be no less than 12 months. Following Vice-President Kalonzo declarations that power sharing contradicts the Constitution, the mediation team stated that they would work in accordance with the Constitution but not within it. The Members of Parliament, briefed last week during the kamakunji (an informal session of the Parliament expressly called to update its members on the talks), were asked to let aside their divisions and be ready to support all the necessary constitutional and legal reforms, while Ruto and Kilonzo from both negotiation teams were asked to draft a proposal for political settlement. Their plan suggests that the President would be the Head of State, while the PM would be the Head of Government. The leader of the party with the majority in the House would assume the charge of PM, and could be dismissed only with a vote of no confidence by the Parliament. The Cabinet would be composed by 15 members of ODM, 14 of PNU, 4 of ODM-Kenya (allied with PNU) and would be chaired by the President. A new Constitution would also be drafted in one year.
Predictably, this proposal did not find the approval of Kibaki’s negotiation team, which strongly states that the Constitution needs to be respected and offered instead to co-opt ODM in the government, a solution unacceptable to the Orange movement. The last week of negotiations got hindered on three main issues: the powers of the Prime Minister, the timeframe in which the position would be created, and the associated legal framework. The agreement reached on the 21st of February, which lasted only until the 22nd, granted coordination and a supervisory role to the PM, but was rejected the day after by Kibaki’s party. A legal subcommittee of the KNDT has therefore been created to draw possible options.
The two parties still have very different positions, but the Government will have to cede some ground: since the beginning they adamantly stated that they would not accept any form of power sharing, but had to consent to it, given the heavy pressures from the international community. The alternative is resuming of violence and a plunging of the country into chaos.
Nevertheless, many issues still need to be defined, first of which is the objective of power sharing: would it be a transitional option aimed at new elections? If so, when would they take place? Kenya is still shocked by what happened in the last two months, and campaigning for new elections in the short term would reopen fresh wounds, that have not even begun to heal. Plus, the electoral bodies, in primis the Electoral Commission of Kenya (ECK), have completely lost credibility and could not guarantee the institutional framework for fair elections. And how would they deal with the 300,000 displaced people right to vote? Additionally, would it be possible for the candidates to campaign freely in the strongholds of other parties?
Or would the power sharing solution be aimed at creating the conditions for the many reforms that are needed? Constitutional and Parliamentary reforms, reviews of the electoral, legal and judicial systems have been discussed during the talks, and many of them are part of the Agenda Item 4, whose timeframe has been said to be at least of one year. Long-term issues include poverty (around 60% of Kenyan population is poor), the inequitable distribution of resources, marginalisation of some groups, unemployment, land reform, transparency, accountability and impunity.
Another matter to take into consideration if ODM becomes part of the government is who would take the role of the opposition. All the other main parties are allied to PNU, hence there would be no opposition.
The mediators and the Kenyan National Dialogue Team face the arduous task of having to address all these issues and find a satisfactory solution in a short period, under the menacing rumours of renewed violence. In the meantime, Kenyans hold their breath and pray.
(1) A document developed during the constitutional review process in 2004.
(2) Another draft version of the Constitution, with major amendments to the Bomas document.
The views and opinions expressed in this article reflect those of the author and do not necessarily reflect those of the United Nations.
Las opiniones expresadas en este artículo son exclusivamente las de su autora y Naciones Unidas no asume responsabilidad alguna respecto a las mismas.