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A Report on the 2007 General Elections

February 27, 2008



Abbreviations/Acronyms

CAPF – Coalition for Accountable Political Financing

CDU – Central Depository Unit

COG – Commonwealth Observer Group

CRECO – Constitution Reform Education Consortium

CSOs Civil Society Organizations

ECC – Electoral Code of Conduct

ECK – Electoral Commission of Kenya

EMRC – Election Monitoring and Response Centre

EUOM – European Observation Mission

IDPs – Internally Displaced Persons

IMLU – Independent Medico-Legal Unit

IPPG – Inter-Parties Parliamentary Group

KACC – Kenya Anti-Corruption Commission

KBC – Kenya Broadcasting Corporation

KHRC – Kenya Human Rights Commission

KHRI – Kenya Human Rights Institute

KICC Kenyatta International Conference Centre

KNCHR – Kenya National Commission on Human Rights

KPTJ – Kenyans for Peace with Truth and Justice

LSK – Law Society of Kenya

MMPR – Mixed Member Proportionate Representation

NARC – National Rainbow Coalition

NGOs Non-Governmental Organizations

ODM – Orange Democratic Party

ODM-K – Orange Democratic Party of KenyaPNU – Party of National Unity

RPP – Release Political Prisoners Trust

SMS – Short Messaging Service

UDHR – Universal Declaration of Human Rights



List of Figure and Tables Page

Figures

Figure 1.1: Province, Constituency and Monitors 9

Figure 1.2: Nature of Events 10

Figure 1.3: Reports from Monitors by Province 11

Figure 3.1: Incidences of and Incitement to Violence by Province 15

Figure 3.2: Deaths and Injuries by Province 17

Figure 5.1: Incidences and Types of Hate Speech by Province 23

Figure 6.1: Bribery Incidences by Province 29

Figure 6.2: Incidences of Abuse of State Resources by Province 32

Tables

Table 1.1: Events Covered by Monitors 11

Table 1.2: Reports Received by Constituency 12

Table 3.1: Manifestations of Violence 16



1.0 Introduction

The KHRC is a national non-governmental organization founded in 1992 with amission to promote, protect and enhance all human rights for all people of Kenya. Inspired by Vision 2012, which seeks to create a social movement andadvocacy towards a human rights state, the KHRC is currently winding down

its Strategic Plan 2004-8, whose five strategic objectives are: a) stimulatingand/or organizing community-based advocacy networks; b) holding State andnon-State actors accountable by ensuring that Kenya has a human-rightscentred governance system; c) strengthening the capacity of the KHRC as aleader in human rights discourse and democratic development; d) enhancingthe capacity of KHRC to learn, adopt and innovate human rights programming;and e) ensuring independent and sustainable financing. All these objectives areto be enhanced by end of this year, 2008, and fully realized in 2012.

The KHRC’s Electoral InterventionsOver the years, the KHRC conceptualized and implemented electoral

interventions geared towards ensuring accountable and human rights-centredgovernance of political affairs in Kenya.1 During the 1997 General Elections,the KHRC focused on two initiatives. First, joint media monitoring with Article19, the International Centre against Censorship. The goal of this project was toassess the impartiality and independence of the public KBC’s coverage of political party issues and events, both in scope and substance. The results were compiled into monthly reports disseminated in Kenya and abroad.2 Second, monitoring and documenting politically instigated violence. The KHRCpublished and disseminated reports and books highlighting human rightsviolated, perpetrators involved and interventions required.3

In the 2002 General Elections, the KHRC took the position that the electionsoffered a transitional moment to effect regime change that would ensure Kenya was free of despotism, national decomposition and official corruption andabuse of power.4 Thus, the focus was to ensure the political transition putKenya on a trajectory towards democratic governance and politicalaccountability by: a) informing the political process by setting the agenda on‘Why and How to Bring About a Regime Change in Kenya’ 5 and b)independently and in partnership with the CDU Trust and the organizationsconstituting its Board of Trustees, monitoring and publishing reports on

1

During the past three multiparty General Elections in 1992, 1997 and 2002, the electoral environment in Kenya hadbeen characterized by serious and routine acts of repression, electoral fraud and other crimes, perpetrated by state-security agencies and politicians of the then ruling party and opposition counterparts and outlawed informal gangsand militias. The KHRC, similar to other human rights organizations, realized that perpetrators of the above offencesenjoyed (and continue to enjoy) impunity. These patterns of breakdowns in the rule of law during elections have had

the effect of restricting the human rights that guarantee free and fair elections.2 This initiative was pursuant to Article 19 of the Universal Declaration on Human Rights, proclaiming that everyperson has the right to freedom of opinion and expression. For details, see Elections 1997: media watch and media monitoring in Kenya . Nairobi: Article 19 and KHRC, September 1997.3 See, for instance, Killing the Vote: state sponsored violence and flawed elections in Kenya (KHRC) 1998; Kayas of

Deprivation, Kayas of Blood: violence, ethnicity and the state in coastal Kenya. Nairobi: KHRC, 1997; Kayas Revisited: a post election balance sheet . Nairobi: KHRC, 1998.4 See ‘ Why and How to Bring About Regime Change in Kenya,’ Eyes on the Prize . Nairobi: KHRC, 2002.5 Ibid.



human rights violations committed during and immediately after the 2002General Elections.6

In the November 2005 National Referendum7 on the Proposed NewConstitution, the KHRC, in collaboration with the KNCHR, organized a jointobservation project and campaign. The main objectives of this campaign were

to:8

enhance transparency and accountability in the public sphere by workingto strengthen democratic governance; and expose statements and/or speechesby politicians amounting to incitement or calls for ethnic nationalism and/orhatred of those from other ethnic groups.

Borrowing from this history, the KHRC thus planned to monitor and respond tohuman rights violations during the 2007 electoral process – including the pre-elections period (and political party nominations), polling day and the postelection period, which have all been marked by violations of the rights to life,food and water, security, housing and property ownership among others. Thisreport, Violating the Vote, concentrates on the pre-election period and the

immediate aftermath of the 2007 General Elections to show the manifestations,nature and extent of human rights violations that occurred.

The EMRC The KHRC’s EMRC was established to enhance accountability and equity in electoral governance in Kenya . Based on the UDHR,9 the goal of the EMRC wasto support the creation of a conducive electoral environment where voters andcandidates would not face unreasonable limitations adversely affecting theirfundamental freedoms as enshrined in the Constitution of Kenya and be free toact independently, intelligently, responsibly and lawfully while participating inthe 2007 General Elections. The objectives of the EMRC were thus to: monitor

and document the observance of human rights by all actors in the electoralprocess; organize human rights monitors to work effectively and seek redressfor violations; and campaign for the observance of human rights standards

6 CDU was incorporated as a public trust on August 7, 2001. It was a coalition of six Kenyan NGOs previously involved

in monitoring electoral violence in Kenya including: the KHRC, the League of Kenya Women Voters, The Centre forGovernance and Development (CGD), the Tawasal Foundation and the National Council for Churches in Kenya (NCCK).Its mission was to provide a centre with the capacity to receive, analyze, compile and disseminate information relating

to electoral violence to all stakeholders and other potential users of information to prevent, reduce and eliminateelectoral violence. For details, see: Report of Election Violence: January-April 2002 ; Institutional Management of Election Violence in Kenya: a case study by CDU ; Monitoring Election Violence: final report of the 2002 General Elections, Nairobi:CDU, 2003, Political Violence in Marginalized Areas: a case study of Samburu and Lamu Districts, Nairobi: CDU, 2003; Darkness at Noon: the politics of cattle rustling and political violence in Transmara , Nairobi: CDU, 2003.7

This was like a mini-General Election.8 Other objectives were to: strengthen the fight against corruption by exposing the abuse of public office and the abuseof public resources during the referendum campaigns; enhance the fight against impunity through holding theindividual politicians and senior public officials accountable to the rule of law; monitor incitement and use of hate

speech along ethnic lines in the campaigns and or ‘civic education’; name and shame political leaders, public officialsad media agencies guilty of using hate speech and other exhortations to ethnicity as a means of gaining support fortheir position on the referendum; reduce campaign violence by exposing and holding to account politicians and publicofficials guilty of violating the public trust; and encourage Kenya women and men to participate in exposing abuse of

public office and waste of resources by exercising their rights to take part in the conduct of public affairs in thecountry. See Behaving Badly, Deception, Chauvinism and Waste during the Referendum Campaigns: promoting

accountability in the political process in Kenya, Nairobi: KHRC and KNCHR, 20069 UDHR, Article 21: “The will of the people shall be the basis of the authority of government; and will be expressed inperiodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or byequivalent free voting procedures.”



through public interest media campaigns, civic engagement and litigation. Torealize the above objectives, the EMRC undertook specific activities, which were:

a) Recruiting, training and managing a network of election monitors. Atotal of 117 monitors were recruited, trained and deployed as 88

constituency-based monitors and 29 media correspondents; b) Assessing adherence of election monitors to the KHRC Code of Conduct

for Election Monitors to affirm their impartiality and commitment toupholding the integrity of the electoral process. The monitors weresupervised to ensure compliance with the Code ;

c) Collecting, collating and verifying information from the field and othersources, such as other observers and media houses. The EMRCreceived many written reports, pictures besides the Election Monitoring Tool reports, which inform analysis in this report;

d) Entering data, analysing it and generating cumulative statistics on thenature and categories of human rights violations related to elections. A

total of 387 Election Monitoring Tool reports were keyed into thedatabase;10

e) Processing complaints requiring the KHRC’s interventions. The EMRCreceived numerous complaints from monitors through calls andthrough emails, which were promptly dealt with;

f) Releasing bulletins and press statements on major incidents orpatterns of violations on a needs-basis. The EMRC released a bulletinin November 2007 and wrote numerous statements on election-relatedoffences; and,

g) Working with other election observers, the ECK, major political partiesand civil society organisations during the monitoring process. The

KHRC assigned this work to specific members of the KHRC’s Elections Team and other staff, including those at the EMRC.

Through the above, the EMRC embarked on monitoring and documentinghuman rights violations related to the electoral process. The EMRC was guidedby a Working Paper on Elections, which outlined the basic political andprocedural rights to be guaranteed, protected and promoted for the elections tobe termed a reflection of the will of Kenyans. As demonstrated in Chapter 2,these rights were what all monitors were on the lookout for to ensurecompliance by State and non-State actors.

1) Planning for Monitoring The criteria for mapping where to monitor included seven considerations:

• First, constituencies with female aspirants requiring protection againstharassment and discrimination among other gender-based injustices;

• Second, constituencies undergoing and or prone to electoral violence;

10 For a detailed picture of which areas were covered, see Figure 1.2 in this Chapter



• Third, constituencies likely to experience abuse of public resources andinstitutions;

• Fourth, constituencies with a propensity for electoral irregularities andmalpractices;

• Fifth, constituencies where minorities, among other marginalized groups, were likely to get no attention to enhance national representation and

diversity; • Sixth, gerrymandering, which perpetrates political inequities in the

apportionment and identification of constituencies; and

• Seventh, constituencies where the KHRC has contacts and networks foreffective interventions.

The EMRC then defined four key areas of focus. First, monitoring politicalviolence, including but not limited to: oath-taking, incitement to violence,issuing political threats, disruption of political rallies by opponents or statesecurity, politically-instigated clashes and any other actions in breach of publicpeace and security. Second, monitoring violence against women and other

marginalised groups, which included investigating human rights violationsimpeding on the campaigns of women and physically-challenged civic,parliamentary and presidential candidates. Such violations included but werenot limited to: political harassment, discrimination, rape, killings, assaults,insults and inadequate campaign resources and infrastructure.

Third, monitoring the use of hate speech and propaganda, which are politicalutterances which are discriminatory, illegal and/or stereotypical and intendedto incite feelings of contempt, hatred, hostility, suspicion and violence againstthose from other ethnic communities, religious groups or races in Kenya.Finally, monitoring corruption and abuse of public resources. This meanttracking vote-buying, destroying of voter cards, bribery and/or expedientprovision of public services and misuse of public resources in the campaignperiod. This also included the abuse of government-plated vehicles amongother ptate resources and the harassment of opposition supporters and themedia by arbitrary arrests, detention and torture, among other cruel anddegrading practices prohibited under domestic, regional and internationalhuman rights law.

Using these four pillars, the KHRC planned to monitor in all eight provinces, in79 constituencies with 88 monitors (assisted by 29 media monitors). Figure 1.1below depicts the areas the KHRC planned to monitor, by province,constituencies and the number of monitors therein.



Figure1.1: Province, Constituency and Monitors

8

1011

9

4

7

11

19

16

1011

9

4

7

11

20

0

5

10

15

20

25

Nairob i Central Coast Eastern North

Eastern

Weste rn Nyanza R ift

Valley

No. of Constituencies No. of Monitors

(Source: EMRC Data)

For polling day, the EMRC in liaison with the ECK, accredited 156 observers,including the 117 monitors, some of the KHRC’s staff and internationalobservers to observe three areas of focus. First, governance of the votingprocess including: whether voters had the freedom to participate in voting; thephysical arrangement of the polling station; the autonomy, impartiality andadministration of the polling process; the freedom and professionalism of themedia; the presence, role and conduct of electoral, security and other publicofficers; and levels of voter turn out.

Second, compliance with electoral procedures, including: the opening andclosing times of polling centres; the polling and counting procedures; thesealing of ballot boxes, and access to the polling, counting and tallying centres.

Finally, other critical issues about polling day and counting night, includingbut was not limited to: the manner in which voters were delayed; the order in which voters were allowed to cast their ballots; whether secrecy was observed;the use of the voter register and the ‘black book’; the length it took to castvotes; procedures to assure security of the ballot boxes; the counting andtallying of votes; whether the announcement reflected the true count and tally;

the freeness and fairness of the voting process, especially for women, thephysically challenged and the elderly, among other marginalised groups; andgeneral order.

2) Events Covered The monitors attended campaign rallies, political meetings, party nominationsand other events (such as road shows) organized by political parties orindividual politicians. Table 1.1 below gives a summary events attended byprovince.



Table1.1: Events Covered

Province Rallies MeetingsParty

NominationsRoadshows

Central 27 6 8 4

Coast 28 6 5

Eastern 13 1Nairobi 33 16 15 3

North Eastern 11 2 2

Nyanza 21 8 3 3

Rift Valley 23 3 2 1

Western 20 7 6 1

Grand Total 176 49 41 12(Source: EMRC Data)

As shown, many campaign rallies were attended by the monitors. On average,

each of the 88 monitors attended two rallies.

The events attended related to campaigning at the civic, parliamentary orpresidential levels. The monitors attended 140 civic-level events; 240parliamentary-level events; and 47 presidential-level events. In attendance werethe area councillors (seven per cent), parliamentarians (32 per cent),government ministers (35 per cent), provincial administration staff (ten percent), senior public officers (five per cent), diplomatic officials (two per cent) andthe president and vice-president (ten per cent). Figure 1.2 below categorisesthese events and where they took place.

Figure 1.2: Nature of Events

(Source: EMRC Data)

17 16

7

41

8

15 16

20

43

27

11

62

12

30

25

30

74

8

13

53 3 4

0

10

20

30

40

50

60

70

C e n t r a l

C o a s t

E a s t e r n

N a i r o b i

N o r t h

E a s t e r n

N y a n z a

R i f t V a l l e y

W e s t e r n

Civic Parliamentary Presidential



3) Reports Received The EMRC received 387 reports from the monitors across the country, with RiftValley sending the largest number (83), while Nairobi followed (75). Figure 1.3provides a summary of reports from each province.

Figure 1.3 Reports from Monitors by Province

(Source: EMRC Data)

These reports were received from 70 constituencies, as shown in Table 1.2below.

Table 1.2: Reports Received by Constituency

Province Constituency Total Province Constituency Total

Gichugu 13 Bura 2

Githunguri 2 Changamwe 3

Juja 4 Garsen

Kandara 6 Kisauni 9

Kangema 6 Lamu West 4

Kiambaa 11 Likoni 4

Kibwezi 2 Magarini 10

Kitui Central 2 Taveta 5

Mathira 5

Coast

Voi 2

Mwingi North 10 Coast Total 41

Ndia 3 Eastern Isiolo North 16

North Imenti 3 South Imenti 6

Central

South Imenti 3 Eastern Total 22

Central Total 70 Dagoretti 7

Dujis 2 Embakasi 13

Isiolo North 3 Kamukunji 5

Laisamis 2 Kasarani 22

Mandera West 5 Langata 4

North Horr 9 Makadara 8

North Eastern

Wajir East 2

Nairobi

Starehe 7

Central Coast Eastern Nairobi

North Eastern Nyanza RiftValley W estern

70

41

23

7524

36

83

35



Wajir South 2 Westlands 9

North Eastern Total 24 Nairobi Total 75

Alego Usonga 3 Ainamoi 2

Kisumu Town East 5 Eldoret North 10

Kisumu TownWest 6 Eldoret South 8

Kitutu Chache 1 Kapenguria 11

Migori 4 Konoin 1Nyando 3 Laikipia East 3

Nyaribari Chache 1 Marakwet East 9

Rarieda 5 Marakwet West 9

Rongo 1 Molo 1

Nyanza

South Mugirango 7 Mt Elgon 6

Nyanza Total 36 Naivasha 2

Butere 2 Nakuru Town 1

Cherang'any 1 Narok South 1

Funyula 6 Ol' kalau 13

Ikolomani 6

Rift Valley

Subukia 6

Kimilili 4 Rift Valley Total 83

Lurambi 5

Mumias 2

Western

Sabatia 9 GRAND TOTAL 387

Western Total 35

(Source: EMRC Data)

4) Rights guaranteeing Free and Fair Elections Three critical civil and political rights must be guaranteed for electoraloutcomes to qualify, at a basic level, to be genuinely reflective of the people’s will.11 These are the: right to campaign to fill an elective public office; right to elect representatives, at regular intervals, by secret ballot and with effective

choice between candidates and parties; and right to vote directly.

However, the enjoyment of these three rights alone is not sufficient toguarantee high quality participation in the electoral process and thus highquality electoral outcomes. In addition, an individual voter should not face anyunreasonable constraints that may adversely affect her or his freedom to actautonomously while participating in an election. Further, respect for eachindividual’s dignity and worth with reference to other individuals, andsubsequently, the value of his or her own vote is required, based on theconstitutional principle that all citizens are equal.

Thus, if these fundamental elements of liberal democracy are to have a usefulinfluence on representation, there is a range of inter-related and inter-dependent political and procedural rights for each eligible voter which must berespected, protected and promoted by the state and all other actors in the

11 See Beetham, David. “Freedom as a Foundation,” Journal of Democracy, 15 (4), 2004.



electoral process. The most obvious of these, respect for which provides anenabling environment for free and fair 12 elections, are the:

1. Right to integrity and security of person : citizens’ personal safety andsecurity, or their right to be free from physical violence, fear andintimidation, must be guaranteed;

2. Right to free expression or to freely impart and receive information must

be upheld;3. Right of the independent press to operate freely : the media must be able

to research, document and report responsibly on any aspect of theelectoral process from the viewpoint of their choosing;

4. Right to access information : citizens must be able to learn about anyaspect of the electoral process and must not be restricted frommonitoring the same;

5. Right to freedom of assembly : there should be no restrictions againstpublic meetings, processions, rallies and other types of peacefulgatherings;

6. Right to freedom of association : individuals and groups should be able to

form and join any kind of political party participating in the electoralprocess;

7. Right to freedom of movement : individuals and groups must be able tomove unrestrained around any part of a country to build support fortheir political platforms;

8. Right to judicial petition : where election outcomes are disputed, theremust be an independent, predictable judicial process which reviews andrules on such disputes when and where they arise;

9. Right to due process before the law (during judicial petitions).

All these rights must apply equally to everyone, be they individuals or groups,

without discrimination of any kind. Further, these rights must be safeguardedat all times with vigilance, particularly during the electoral process when theyassume greater significance.

However, there are instances where an independent tribunal could temporarilyrule to restrict these rights if there are reasonable grounds in the publicinterest justifying such restrictions.

These rights may be subverted by “intentional” and “unintentional” structuralfactors,13 which may not be direct infringements specific to any electoralprocess, but are outcomes of longstanding political, economic, constitutional,

legal and administrative imperfections and imbalances. Dominant politicalactors may not take the initiative to address these structural factors and thus

12 Most rights outlined above address how “free” the electoral process is although there is an overlap with how “fair” itis. Eric Bjornlund addresses “fairness” in the electoral process as follows: “To be fair , an election must have honestballoting and counting, administered without fraud or manipulation by impartial election authorities. Political partiesand individuals must have reasonable opportunities to stand for election, and there must be prompt and justresolution of election-related disputes and grievances, before and after Election Day. Fairness also requires a “level

playing field”; specifically, there can be no misuse of public resources for campaigns, and all parties and candidatesmust have an adequate chance of communicating with the voters and winning their support, including reasonablyequitable access to media.” See “Elections in a Democratizing World,” Democracy Dialogues, http://usinfo.state.gov.13 See Beetham, ibid.

http://usinfo.state.gov/

http://usinfo.state.gov/



their implications on rights, especially where these factors work to theiradvantage during an electoral process. Some of the factors include:

• An electoral system or constituency boundaries that systematicallyadvantage some parties and candidates over others;

• Systematic exclusions or disadvantages for particular groups of citizens

in registration;• Unequal access to elective public office for particular groups of citizens;• Government discretion over the timing and duration of elections;• Preferential use of public resources by the governing party during

election campaigns; and,• Lack of regulation on political financing.

The EMRC and its monitors were thus on the lookout not only for the rightsenumerated above, but also for the above factors, be they “intentional” or“unintentional.” The following chapters illustrate the rights violated and howthese factors led to this report’s title, Violating the Vote.



2.0 Political Violence

Electoral violence was defined as any act that causes or is likely to cause harmor threat of harm, to an individual or group of people and damage to property if the act or series of acts are intended to influence electoral outcomes.14 TheEMRC received reports ranging from deaths, attempted assassinations,displacements, disruption of political meetings or rallies, battery, arson, theft

and destruction of property and the communication of threats of violence vialeaflets. In the first bulletin of the EMRC, attention was paid to two issues:first, Mount Elgon and Kuresoi, which have been engulfed in violence for abouta year; and second, violence that occurred during the political partynominations in November 2007.

There was electoral violence throughout the pre-election period, which hasgreatly worsened in the post-election period.

Incidences of electoral violence before the elections reported to the EMRC were72, with Central province leading with 19 incidences. In some cases, these

incidences of violence were incited by politicians, as shown in the figure below.

Figure 3.1 Pre-Election Incidences of and Incitement to Violence byProvince

19

3

7

17

3

5

14

44

1

4

23 3

1

0

2

4

6

8

10

12

14

16

18

20

C e n t r

a l

C o a

s t

E a s t e r n

N a i r o

b i

N o r t h E a s t e r n

N y a n z a

R i f t V a l l e y

W e s t e r n

Violence Incidences Incitement to Violence

(Source: EMRC Data)

14 As defined by the KHRC and the CDU. See Ghasia Watch, Nairobi: CDU, 2002.



Apart from Coast, all provinces had incidences of incitement to violence.Comparing the violence to the incitement, variations existed from province toprovince. While Central, Central and Rift Valley, had the highest cases of violence, the highest correlation between the number of cases and incitementto violence were in North Eastern and Nyanza provinces, where the incitementto violence accounted for about 60 percent of the violence.

Further, the violence was manifested differently, through the disruption of rallies, theft and destruction of property and gender-based attacks, amongothers. Of the cases reported, there was one incidence of disrupting rallies,eight incidences of theft, 12 incidences of destruction to property and 14incidences of gender-based attacks. Table 3.1 below shows the provinces in which these incidences took place.

Table 3.1: Manifestations of Violence

ProvinceDisruptionof Rallies

Cases of Looting

Destruction of Property

Attacks on GenderIdentity

Central 1 2 6Coast 1

Eastern 1

Nairobi 6 1 2

NorthEastern 1 1

Nyanza 3 2

Rift Valley 1 3 3

Western 1

(blank)

GrandTotal 1 8 12 14(Source: EMRC Data)

There were numerous cases of violence where candidates were attacked,verbally or physically, because of their gender. In all the physical attacksincidences, there was use of both crude and conventional weapons. The use of clubs/rungus accounted for 13 per cent, machetes (eight percent), spears (oneper cent), stones (42 per cent), pick axe (three percent), use of firearms,especially in Rift Valley and Nyanza (13 per cent), wooden sticks (15 per cent)and whips (five per cent). Use of such weapons resulted in deaths or injuries,

where seven deaths were reported, while 80 injuries (35 cases of lacerationsand two cases of bullet wounds) were reported countrywide. Figure 3.2 belowdepicts where the deaths and injuries occurred.



Figure 3.2: Deaths and Injuries by Province

2

1

1

2

1

11

5

9

24

5

12

13

1

0 5 10 15 20 25 30

Central

Coast

Eastern

Nairobi

North Eastern

Nyanza

RiftValley

Western

Deaths Injured

(Source: EMRC Data)

All provinces had cases of injuries, while five provinces reported deaths, withthe exception of Nyanza, North Eastern and Coast. Some of those injured werehospitalized and, where ultimately fatal, this could have meant more deaths.Beyond statistics, the subsequent paragraphs detail what transpired fromNovember to December 2007.

Cases

• On November, 3 2007 at Kerugoya town, Kirinyaga Central constituency, there wasdestruction of property. The then parliamentarian, Daniel Karaba, after the launch of hiscampaign at Kerugoya Stadium, made several stop-overs in various markets. At Kagumomarket, a group of young men shouted and threw stones at the convoy to Karaba’scampaign, thereby disrupting the rally. Five vehicles were damaged. Some of the peopleescaped with minor injuries. Similarly, in Mukindori village, he was accosted by a group of people throwing stones and shouting. He escaped unhurt while five other vehicles weredamaged.

• On October 27, 2007 at Imenti South constituency, there was violent disruption of a rallyorganized by the ODM’s Pentagon. Crude weapons such as pangas were recovered but no

suspect was arrested in connection.

• On November 15, 2007, Katulani market, Kituyi district in Kitui Central constituency,supporters of Mwendwa Munyasya mobilized a group to confront PNU supporters andforced the latter to retract the message alleging that Munyasya had decided to step downfor the PNU candidate, Paul Mutisya.

• Police officers display crude weapons recovered from supporters of assistant minister for water, Raphael Wanjala. The weapons were recovered after Wanjala’s PNU supportersclashed with those of his rival, ODM’s Ababu Namwamba at Mukhobola area. One person



was seriously injured while several others sustained light injuries. The weapons wereconfiscated by Namwamba's supporters, who handed them over to the police. The assistantminister denied any knowledge of the incident.

• On December 16, 2007, Belgut parliamentarian, Charles Keter, escaped death when eightarmed gangsters accosted him as he was leaving Unilever International Training CentreHotel in the outskirts of Kericho town. Two men view Keter’s car.

• On November 3, 2007, in a hotel in Mtito Andei in Kibwezi constituency, John KimanthiMaingi and his two brothers reportedly beat Councillor Kyuma because he was notsupporting Maingi although they are of the same clan.



• On November 23, 2007, in Banana Hill in Kiambaa constituency, violence broke out aftera confrontation between aspirants, SM Githunguri and incumbent Njenga Karume.

• On November 16, 2007 during the nominations in Westland constituency, scheduled tobe at Saint Marks Catholic Church Hall, but later changed, allegedly by incumbent FredGumo to his offices at Brookside, off Waiyaki Way. This was done without informing theother candidates. By 8:30 am, the stations were not yet open and the exercise had not

started. Gumo thus allegedly declared himself the unopposed ODM candidate at around11:20 am. Then Amin Walji Junior, also an aspirant, allegedly came in with three vehicles,two Range Rovers and a Nissan matatu full of hired youth. The youth destroyed windowpanes and chased away everyone. At the Kangemi City Council Social Hall, youth attemptedto act in the same way but were repulsed by the public. One of Waljis’ bodyguards allegedlydrew a gun and threatened to shoot as they were being hit by stones. One vehicle wasdamaged. The weapons used were pangas and stones. A number of people were injured.

Violence in Westlands

• On November 7, 2007, during a political rally in Marani division, Kitutu Chacheconstituency, attended by Musalia Mudavadi (ODM), PNU supporters reportedly threw

wooden sticks and stones at Mudavadi’s convoy, injuring about 15 people. The alleged

perpetrator and organiser, Nicholas Bengo Mango, appeared in court on November 8, 2007.

• On October 27, 2007, in Embakasi constituency, the late Dr Mugabe Were allegedly hired youth who violently disrupted a PNU rally at Soweto.

• On November 19, 2007 in Kandara constituency, Alice Wahome was beaten by MainaKamau’s alleged supporters at PNU headquarters. She was taken to hospital with seriousinjuries.



• On December 24, 2007, the feet of a man who was roughed up in Chebigen in Ainamoiconstituency, Kericho district.

• On November 16, 2007, both the PNU and the ODM nominations in Isiolo Northconstituency were marred by violent protests owing to irregularities in the nominationprocess such as the lack of electoral materials and rigging. In the ODM nomination, there

was omission of some candidates’ names from the ballot papers (for example, in WaberaWard, the names of civic aspirants, Osman Happi and Hussein G Shano were missing, thusforcing them out of the race). In one case, ten people were injured when supporters of twocivic aspirants fought over allegations of rigging. This generated into a violent clashbetween the Turkana and Ajuran (Somali speakers). Weapons such as stones, rungus wereused. Seven of the ten injured sustained serious head injuries and were taken to IsioloDistrict Hospital.

• On October 16, 2007, during the nominations at Kibera Primary School in Langata

constituency, a fight reportedly broke out between two aspiring councillors, ChristopherOdhiambo and Mohammed Gore. The weapons used were umbrellas. Two people wereinjured. Opete Opete, Said Salimini, Mohammed Gore, Asman Ambar and Said Rasta wereallegedly present.

(Source: EMRC Data)



3.0 Violence against Women

Violence and other forms of discrimination against women are acts perpetratedby men against women aimed at devaluing, demeaning and de-humanizing themand their specific identity as women so as to promote men’s dominance inelectoral politics, thereby influencing electoral choices and outcomes.15 Via

SMS, texts directed at women were circulated. The content was dehumanizingand demeaning of women. Other forms of gender-based violence targeting women included rape, stripping and other forms of indecent assault, sexualharassment and various unfair restrictions aimed at alienating women frompolitics. These violations were carried out to intimidate women into withdrawingfrom political contests. Although an unprecedented number of women werenominated by political parties, the electoral outcomes have thus neitherreflected women’s proportions within the population nor the role of women inleadership.

Many cases of gender-based violence and other forms of gender-based

discrimination, were reported to the EMRC. Two cases of sexual harassment were reported in Nairobi and also Western; two cases of stripping in Nairobi andNyanza; and 14 cases of gender-based attacks across the country. The Boxbelow illustrates cases of physical violence and other forms of discriminationagainst women such as harassment, intimidation and verbal abuse.

Cases

• On October 6, 2007, Asha Hussein was violently attacked, as she returned to her home inDandora after a political rally in Nakuru. At about 9 pm, she alighted from a public servicevehicle in Dandora. Since it was late, she hired a guard to walk her home. A few metres to

her home, she was surrounded by a group of young men wielding machetes and other weapons including an AK-47. The guard ran away, leaving her alone. The gang proceededto assault her while one member pointed a gun at her, warning her against vying for theseat. The gang also insulted her, questioning her morality. They continued until she agreedto denounce her political ambitions

• On October 28, 2007, at Kianyaga Town, Gichugu constituency, the DP aspirant forKabare ward, Jeremiah Geteri allegedly warned people against electing women to power asthey would do nothing apart from look for men. Referring to Martha Karua, the aspirantasked: “We elected her when she was a Mrs, now she is a Miss. How many people agreethat she should now go and marry?”

• On October 16, 2007, at Kibera Primary School in Langata constituency, Shaban, an

aspirant, said: “Wanawake endeni mkapike” (women go and cook) and “tokeni amatutawarape” (go away or else we shall rape you). All the women present ran away. Thealleged reason for the comments was the women’s support for aspirant Opete-Opete. Theaspirants allegedly present were: Opete Opete, Said Salimini, Mohammed Gore, AsmanAmbar and Said Rasta.

15 See The Status of Human Rights Protection in the Electoral Process: October to November 2007, First Bulletin of theEMRC, Nairobi: KHRC, 2007.



• On November 16, 2007 at Dandora Secondary School in Embakasi constituency, Asha Ali was assaulted when a conflict arose between her supporters and those of Waititu. Theaspirants allegedly present were: Waititu, Asha Ali and Muchiri.

• On November 26, 2007 at Dandora Secondary School in Embakasi constituency aspirant Jecinta Mwangi was told: “People of Dandora cannot vote a woman.” Some asked her:“umepikia bwana malaya wewe ODM si ya Wakikuyu” (have you coked for your husband

you harlot, ODM does not belong to the Kikuyu). She was abused, intimidated andthreatened.

• On November 16, 2007 in Narok North constituency, Faizah Mohammed was harassed bya police officer and barred from entering a stadium to campaign. Her identity was alsoquestioned by those guarding the entrance to the stadium as she is a Muslim.

• On November 16, 2007 in Uasin-Gishu in Eldoret South constituency, campaigners forJulius Sang reportedly said that other aspirants “are thieves and are very immoral.”Further, supporters of David Koros said to Peris Jepchumba that “they cannot be led byuncircumcised women.”

• On November 16, 2007, hate speech directed at women was circulated via SMS. For

example: “Why you should be in ODM! ODM women scream YAWA, yawa, YAWA, in praiseof NYUNDO while men in PNU are busy telling their wives to PANUA ile kazi iendelee.Women in ODM-K are so wet that their men keep asking WAPI WHIPPER!”

(Source: EMRC Data and other sources)



4.0 Hate Speech CampaignHate speech was defined as categories of speech outlawed in international lawand that have the potential to lead to xenophobia, intolerance anddiscrimination on the grounds of ethnicity or regional background amongothers. Two key features of hate speech were identified: first, utterances and/orpublications of words, epithets, and idioms intended to cause emotional harm

to, offend or marginalize certain groups. Second, being intended to inciteviolence against or hatred of particular groups. Hate speech was circulatedthrough email, SMS, photos and publications.

119 incidences of hate speech were reported to the EMRC, ranging from ethnichatred (28 per cent), discrimination (21 per cent), incitement to violence (15 percent), attacks on gender identity (12 per cent) and use of stereotypes (24 percent). Figure 5.1 shows the categories of hate speech and where used.

Figure 5.1: Incidences and Types of Hate Campaign

0

2

4

6

8

10

12

14

C e n t r a l

C o a s t

E a s t e r n

N a i r o b i

N o r t h

E a s t e r n

N y a n z a

R i f t V a l l e y

W e s t e r n

Attacks on Gender Identity Discrimination

Ethnic Hatred Streotypes

Incitement to Violence

(Source: EMRC Data)

First, all types of hate speech were prevalent all over the country, the worstbeing ethnic hatred against other communities, followed by stereotypicalexpressions against other ethnic communities and also groups such as women.Second, in the Rift Valley, hate speech aimed at promoting ethnic hatredaccounted for 36 per cent of the hate speech in that category nationally (it isnot, therefore, surprising, that in the post-elections violence in the Rift Valley,ethnic groups that are not Kalenjin have been attacked and displaced fromtheir homes). Third, the Coast province is the only province that did not



witness cases of incitement to violence—although violence occurred, it was on alower scale than in other provinces. Fourth, Central province has the highestnumber of cases of gender-based hate speech, accounting for 43 per cent of cases reported to the EMRC.

The Box below show the selected texts of what was printed, emailed, SMSd,

blogged or photographed and graphically altered to misrepresent certaincandidates or disseminate hate speech. Although this Report does not cover therole of the media in spreading hate speech, the EMRC received reports thatmedia houses, especially local language radio stations, were also spreadinghate speech.



Hate Speech Campaign against ODM and its Presidential Candidate

(Source: Various Sources)



2) Hate Speech Campaign against PNU and its Presidential Candidate

KIBAKI’S NEW ALBUM

“Rattlesnake Me-Chuki: his eyes... Cunning and snaky!”

GOLDENBERG RECORDS1.INTRO -TULITOKA HAPO HAPO 00.31

2. PUMBAVU 03.43

3.KAE MWATHIE (FEATURING K-RAY2 & CY-TOTTY) 05.434.TUJI - ENJOY ( WITH THE CABINET PHILHARMONIC ORCHESTRA ) 03.20 “Martha Karua: the most arrogant and ugly minister in Kenya

5. MY NUMBER TWO ( WAMBUI REMIX ) 04.01 ever…she dates a Catholic priest".

6.DON GEMA NI NIE ( GUTIRE UGE ) 03.53

7.INTERLUDE - TUTAKAA HAPA HAPA 00.29

8.LEX, COOPS, BIMMAZ AND BENZ KENYA STYLE ( FEATURING CMB PREZZO ) 04.01

9.PUMBAVU ( DRIVER REMIX ) 04.01

10. NAIROBERRY II (FEATRING K SOUTH ) 04.15

11.INTERLUDE - TUTAENDELEA VILEVILE 00.21

12.MUGWIKA ATIA NDAREGA KUUMA ? 04.11

13. GITHONGO GUTHUKIA - DIS TRACK ( FEATURING K-SHORT ) 06.01

14. RAILA WAS MY FRIEND 02.55




3) SMS Messages and Leaflets

a) “We, as the Gikuyu, Embu and Meru communities, possess six million votes. You want us tobe ruled by an uncircumcised people [Luo people] and go back to the jobless corner? Come out inlarge numbers to re-elect President Mwai Kibaki so that the country is not ruled by anuncircumcised man who will make the Kikuyus wear shorts. Circulate this message to five ormore members of the Gikuyu, Embu and Meru communities. Your vote is the one that willprevent us from going back to Egypt.”

(Received as an SMS, and written in Kikuyu)

b) “Under Kalonzo’s government, sex will be legalized and free.”(Received as an SMS, and written in Kikuyu)

c) “Why you should be in ODM! ODM women scream YAWA, YAWA, YAWA, in praise of NYUNDO while men in PNU are busy telling their wives to PANUA ile kazi iendelee (spread your legs so that work may continue). Women in ODM-K are so wet that their men keep asking WAPI WHIPPER!(where is the Whipper)”(Received through SMS, written as it is, minus translations, targeted both at women as a groupand also at PNU and ODM-K political parties)

d) “May God protect you from all the harms of the devil, including diseases, thieves, fleas, ticks,

weevils, lice, bedbugs, and especially, ODM.”(Received as an SMS, written in Kikuyu, and sent through cell-phones)

e) “We as Kalenjin Community would like to inform the Kikuyu who live here at Solai (in RiftValley) to immediately leave the farms you occupy or else we warn you that we shall attack youforcefully anytime.”(Received at EMRC as a leaflet, written in Kiswahili, and signed as “Jamii ya WaKalenjin”(Kalenjin Community)


4) Cases: where and when

Cases

• On October 18, 2007, the former Kinangop parliamentarian, Mwangi Waithaka, allegedlyannounced publicly that: “Raila hates Kikuyu people and when elected, he will revenge by forcing the Kikuyu to wear kaptulas (colonial-era shorts) and eat omena (a Luo delicacy).” Speaking at the same function, Matheri, chair of the Kinangop County Council allegedlyclaimed: “The majimbo system propounded by Raila will result in the eviction of Kikuyu people from Nyanza and Rift Valley by the Luo and Kalenjin communities, respectively.”

• On November 3, 2007 at Ithare-ini market, Kirinyaga district, Gichugu constituency during a rally attended by aspirants and the provincial administration (Martha Karua,Njera Gachoki, Kiaura Marua and the Gichugu DO and OCS, the Narc-Kenya chair,Gichugu branch, alleged that if Luos took over the government, they would force everybody

in the country to learn Dholuo and make it the national language.

• On November 2, 2007 at Thika Municipal Stadium in Thika Town in Juja constituency,Kiruma of Muchene Comedians Troupe allegedly referred to PNU as “Pea Njuguna Ugali,”saying they were baboons. The rally was allegedly attended by ODM-K’s Kalonzo Musyoka,Dr Julia Ojiambo, Mutula Kilonzo, Samuel Phoghisio and three UNEP officials.

• On November 3, 2007 at Mtito Andei in Kibwezi constituency, Julius Mutua allegedlysaid that Kimanthi is not married to a Kamba and so people should not vote for him. ODM-K aspirants (both parliamentarians and Councillors) were present.



• On November 16, 2007, during a rally in Isiolo North constituency organized by the ODMparliamentary aspirant, Godana Jarsa allegedly castigated his ODM opponent with the

words: “Nina ujumbe ya watu wa Oldonyiro na Kipsing (eneo la Wasamburu), na wamewaambia nyinyi watu wa Isiolo town kwamba iwapo mtachagua Mokku basimjitayarishe kutoa majembe na vijiko chini ya vitanda vyenu kwa matumuizi ya kuzika

watu’ (if the people of Oldonyiro elect the ODM, they should be prepared to bury people).

• On November 10, 2007 at Khadija Primary School in Kisauni constituency, Hassan AliJoha, an aspirant, allegedly said that people had elected “bunge muozo na mwizi” (a rotand a thief, referring to former parliamentarian, Mwaboza.

• On November 11, 2007 at Frere Primary School in Kisauni constituency, Nyonga waMakemba, referring to Raila Odinga, reportedly said: “Kwanza apashwe tohara” (Raila mustbe circumcised). At the same venue, the incumbent, Anania Mwaboza, referring to Johosaid: “Dumbwasha, si mume kamili, hana elimu kiroboto na chihako cho” (he is an object

without shape, is not man enough, an illiterate tick, likening him to the lower part of thebody).

• On November 10, 2007 at Khadija Primary School, Kisauni constituency, aspirant

Maimuna Waziri allegedly said “mwaboza ameoza” (Mwaboza is rotten).

• On November 5, 2007 at Tiwi playground in Kwale district, Matuga constituency, SheikhJuma Ngao, SUPKEM chair and the co-ordinator for Shirikisho party of Kenya allegedlysaid that “people should not vote for uncircumcised persons,” referring to Raila Odinga.

• On November 8, 2007, in Ruth Guest House, Taveta constituency, Dr Naomi Shaaban, ata KANU delegates’ meeting, allegedly told those present they should avoid Basil Criticos ashe is a white man and a colonialist, adding that Criticos and Raila Odinga were enemies of Islam.

• On November 26, 2007, a monitor brought in a photocopy of a cheque and a cover letterallegedly made at the PNU headquarters and being circulated in Kangemi to the effect that

KES25,000,000 had been disbursed in Kisumu Rural constituency to ensure that Prof Anyang Nyong’o did not regain the seat.

• On November 16, at Dandora Secondary School in Embakasi constituency, the chief campaigner of aspirant Muchiri and another aspirant allegedly insulted each other. Otheraspirants present were: Waititu, Asha Ali, Muchiri.

(Source: EMRC Data)



5.0 Bribery and Abuse of State Resources

Bribery216 incidences of bribery were reported, among the highest of the incidencesthat were being monitored. Figure 6.1 illustrates the level of voter bribery.

Figure 6.1: Bribery Incidences by Province

Province Incidences

Central 50

Coast 26

Eastern 19

Nairobi 28

North Eastern 8

Nyanza 26

Rift Valley 36

Western 23Total 216

(Source: EMRC Data)

(Source: EMRC Data)

These incidences of bribery can be categorized as: monetary handouts (81 percent); vote buying (four per cent); gifts (11 per cent); and the expedientprovision of public services (four per cent). The following are cases.

Cases Bribery

• On October 28, 2007 in Kianyaga town, Kirinyaga district, Gichugu constituency, the areacouncillors and aspirants (Harry Mugo and Jeremiah Gateri) allegedly gave youth and

women’s groups hand outs ranging from KES50-200/person.

• On October 31, 2007, at Kamigua Youth Polytechnic in Kirinyaga District, Gichuguconstituency, parliamentary aspirant Jackan Gutu allegedly gave several women’s groupsfrom all wards and youth up to about KES100 each.

• On November 3, 2007 in Ithare-ini market, Kirinyaga district, Gichugu constituency,aspirants Martha Karua, Njera Gachoki and Kiaura Marua allegedly gave women, men,

youth groups and party delegates from KES100-200 each.

Central Coast Eastern Nairobi

North Eastern Nyanza Ri ft Valley Western

23.1%

12.0%

8.8%13.0%3.7%

12.0%

16.7%

10.6%



• On November 16, 2007 in Tinganga Town School in Kambaa constituency, aspirantWanyanga allegedly transported voters from one polling station to another (from Tingangato Mboi-Kamiti).

• On November 7, 2007 at Mukindori town, Kirinyaga Central constituency, incumbentparliamentarian Daniel Karaba allegedly gave residents of Somo village KES100 each.

• On November 19, 2007 at Murang’a town, Kiharu constituency, agents for Kembi Geturaand Ngenye Kariuki allegedly gave out from KES50-200 each.

• On November 15, 2007 Kitui district, Katulani market, Kitui Central constituency,supporters of PNU aspirant Paul Mutisya allegedly bribed voters.

• On November 16, 2007 in Wajir South constituency, Ibrahim Rashid allegedly bribedODM officials.

• On November 6, 2007 at the home of the chair, WCC, Wajir district in Wajir East, AliMsh’d Yalahow allegedly bribed voters and gave them gifts such as vests and umbrellas.

• On November 15, 2007 at Gathanji market place in Kiaria/Kanjai ward, voters including

Njeri Nderitu were allegedly each given KES5,000.

• On October 16, 2007 at Kibera Primary School in Langata constituency, Said Salimini allegedly bribed youth with KES300 each.

• On November 16, at Dandora Secondary School in Embakasi constituency, aparliamentary aspirant, Waititu allegedly gave voters from KES200-500.

• On November 16, 2007 at Maringo, Mbotela and Jericho wards, Makadara constituency Dick Wathika and Dan Shikanda allegedly gave voters KES100 each.

• On November 6, 2007, Kasarani constituency aspirant, Orie Rogo Manduli, allegedlybribed voters with KES100 each.

• On November 7, 2007 at Marafa in Magarini constituency in Malindi district, at a marketplace, Francis Baya allegedly gave a total of KES21,000 to seven different women’s groups.

• On October 31, 2007 in Likoni constituency, Suleiman Shakombo allegedly gave 67 of hissupporters KES500 each at the ACK hall in Likoni, Mombasa.

• On November 16, 2007 at Consolata Primary School in Likoni constituency, MamaRebecca, a PNU aspirant, allegedly bought voters’ cards from voters during thenominations.

• On November 5, 2007 in Kwale, Tiwi ward, Likoni constituency, Chirau Mwakwere

allegedly ferried supporters and gave them KES1000 each during a PNU campaign. On thesame day, Suleiman Shakombo allegedly ferried supporters to Mtongwe market and gavethem KES1,000 each.

• On November 16, 2007 at Umoja Primary School in Kipevu ward, Changamweconstituency, Peterson Mitau, an ODM aspirant, allegedly gave his supporters KES200each.

• On November 16, 2007, Kajembe Ramadhani allegedly gave his supporters in Kaloleni,Kilifi and Kwale, KES200 each.



On November 16, 2007 in Mvita constituency, Somali workers were allegedly given from• KES200-250 each at Tononoka Social Hall in Mvita. Da, a parliamentary aspirant, allegedlygave his campaigner KES2,500 to share with other women in the village.

• parliamentarian,On October 21, 2007 in Voi constituency, Naomi Shaaban, a formergave Muslim women KES10,000 through Farida at Kariakoo Mosque in Voi.

• cy, aspirants On November 16, 2007 in Uasin-Gishu, Eldoret South constituenJepchumba Peris, Korus and Kibet Biwott allegedly gave voters KES50 each.

• JosephatOn November 3, 2007 at Masyungwa Primary School in Mwingi district,Musyimi allegedly gave Peter Syengo KES4,300 to distribute to his supporters.

• U aspirantOn November 3, 2007 in Ruai, Embakasi constituency, John Kamangu a PNallegedly gave KES100 each to about 200 women and bought some youth and women suitsand shoes.

• r 27, 2007 in Soweto, Embakasi constituency, the late Dr Mugabe Were, anOn NovembeODM aspirant, allegedly bought voters’ cards from women and youth.

• uguna (KANU), in aOn November 1, 2007 at Kabazi, Subukia constituency, Wachira Njmeeting at the National Cereal Produce Board premises, allegedly gave out KES12,400 tothe 50 or so participants. The meeting was co-ordinated by Kiarie Ndungu (KANU), anaspiring councillor.

• 007 at Kabazi, Subukia constituency in the Canners’ Grounds,On November 6, 2Waiganjo Mwangi, Hilda Kimatta and Mwangi Waithaka allegedly gave Hannah WanjiraGichuki KES5,000 on behalf of the group (casual workers). Waiganjo allegedly gaveKES3,000, Kimatta allegedly gave KES1,000 and Waithaka allegedly gave KES1,000.

• ormerOn November 16, 2007 at in Kieni polling station, Kieni constituency, f parliamentarian, Chris Murungaru, and outgoing councillors, Mwangi Kibuu and Wanyaga Gathaka, allegedly gave voters money during the nominations. In Kangaita villagein Tetu constituency, an aspirant, F T Nyammo allegedly gave voters between KES100-1000.

• ember 11, 2007 at Makutano Kilimambogo township, Juja constituency, formerOn Novparliamentarian, W Kabogo, accompanied by the Juja Constituency DevelopmentCommittee chair, Sammy Onyango, allegedly brought in water drilling equipment for theKilimambogo water project.

• igu Primary School in Dagoretti constituency, John MwauraOn November 16, 2007 at KirMuiruri, an aspiring councillor allegedly gave young men KRD100 each so as to interfere

with the nominations. The young men who were paid disrupted the meeting, destroyingproperty and stealing. Older women were also allegedly given from KES50-100.

buse of State Resourcesriation of publicly-owned resources and the

AReports indicated the misappropalso presence of public officers at campaign events. There were 30 incidences of public officials being present at campaign rallies, with ten incidences inEastern province. In addition, government-plated vehicles were present (64cases), 29 of which were in Eastern province and 18 in Western; and



government helicopters were used (six incidences), half of which were inEastern province.

From Figure 6.2 below, it is evident that, in all provinces, public resources wereutilized for campaigns. In all provinces, save for North Eastern, government-plated vehicles were used, either by politicians or public officers, including

parastatal heads and the Provincial Administration. Publicly-owned helicopters were used in three provinces, Eastern, North Eastern and the Rift Valley. In allprovinces, except Central and Nyanza, public officers attended campaignevents, contrary to the Public Officer and Ethics Act and the National Assemblyand Presidential Elections Act. The cases are documented below.

Figure 6.2: Incidences of Abuse of State Resources

0%

20%

40%

60%

80%

100%

C e n t r a l

C o a s t

E a s t e r n

N a i r o b i

N o r t h E a

s t e r n

N y a n z a

R i f t V a l l e y

W e s t e r n

Govt. Helicopters

Govt. Vehicles

Public Officers

(Source: EMRC Data)

Real Cases

Abuse of State Resources

• On November 4, 2007 at a place of worship in Kirinyaga district, Gichugu constituency,aspirant Martha Karua allegedly used vehicle number GKA 435 H (Landcruiser) during hercampaign.

• On November 4, 2007 at a place of worship in Kirinyaga district, Gichugu constituency, aspirant Martha Karua allegedly used the local language radio station, Inooro FM, toconduct roadshows all over Gichugu’s major towns and market places in support of PNU’selection.



• On November 3, 2007 at Ithare-ini market, Kirinyaga district, Gichugu constituency,aspirants and the provincial administration (Martha Karua, Njera Gachoki, KiauraMarua and the Gichugu DO and OCS) allegedly used government vehicle number GKA 435H (Landcruiser) to campaign for PNU. After the rally, several unidentified men, wearingNARC-K caps hung on to the vehicle as it escorted Karua.

• On October 27, 2007 at Raimu Primary School, Kianyaga town, with respect to accessing afree medical camp organized by aspirant Martha Karua, those perceived to be anti-NARC-K

were allegedly discriminated against. Pro-NARC-K persons were allegedly favoured andallowed to pass over the queues.

• On December 14, 2007 there was misuse of government vehicles at Kamungei PrimarySchool in Sotik district where former president Daniel arap Moi was campaigning for the re-election of the incumbent president, Mwai Kibaki.

• On November 6, 2007, in Wajir East constituency, public officials such as Mohammed

Galore and Ibrahim Hussein participated in PNU campaigns.

• On October 27, 2007 at Raimu Primary School, Kianyaga town in Gichugu constituency,Martha Karua allegedly held a luncheon near Kianyaga High School Hall although theKenya National Examinations council had warned against organizing any political eventsnear or in the school facilities.

• On November 16, 2007 at Ndumberi town, Ndumberi Polytechnic, Kiambaa constituency,aspirant Njenga Karume allegedly appointed all civic leaders in Kiambaa and thus deniedothers a chance to vote for candidates of their choice.

• On November 2, 2007 at Thika Municipal Stadium in Thika town, Juja constituency, three UNEP officials allegedly attended a campaign rally organized by ODM-K in a UN

motor vehicle, Mercedes Benz Saloon, registration number UNEP 83K. Kalonzo Musyoka,Dr Julia Ojiambo, Mutula Kilonzo and Samuel Phoghisio were allegedly present.

• During a rally in Kasarani constituency, aspirants led by Maina Kamanda, KamauRuhangi, Beth Mugo, Joseph Gachina and Waihenya Ndirangu allegedly used agovernment vehicle, GK 710G.

• On November 3, 2007, during a public rally in Tana River district, Garsen constituency,allegedly attended by Chief Abdallah Bakelo and DO Wanyoike, the following vehicles

were used: GK A378L Land Rover and GK 1085B Landcruiser.



• On October 19 and 20, Koigi wa Wamwere allegedly used GK A600H at Maili Kumi inubukia constituency, where he was receiving councillors defecting to CCM and meetingthe people.

(Source: EMRC Data)



6.0 Laws breached with Impunity

The legal and administrative framework governing elections in Kenya hasregistered gains within the period of the four multiparty General Elections,especially following the parliamentary negotiations of 1997 under the ad hoc IPP). Key laws that governing or relating to elections include: the Constitutionof Kenya; The National Assembly and Presidential Elections Act; the Election

Offences Act; Public Officer Ethics Act; the Local Government Act; the SocietiesAct; the Penal Code; the Anti-Corruption and Economic Crimes Act; the PublicOrder Act; and, the Preservation of Public Security Act, as amended.

Other relevant Acts include: the KNCHR Act, which establishes the KNCHR andgives its powers to conduct independent investigations into human rightsviolations; and the KBC, which provides that the national public broadcastermust give balanced coverage to all aspirants and political parties.

While these laws exist, most were breached with impunity. Kenya illustratesnon-constitutionalism. The definition of constitutionalism is controversial but

for the purposes of this Report, constitutionalism revolves around humanrights and limitations on the powers of government. These two, further, rely onthe rule of law, separation of powers, periodic elections and judicialindependence among others.16 Rule of law is critical with regard to impunity,since behind it is the notion that all people are equal before the law and, if theybreach it, the law shall takes its course fairly and justly.

In the 2007 General Elections, many broke many laws, including theConstitution, and have been allowed to go scot free with impunity. Forexample, the electoral violence documented in Chapter 3, could and shouldhave been dealt with since the criminal acts perpetrated are prohibited.Violence against women, including sexual violence, and all forms of discrimination are prohibited. Section 82 the Constitution outlawsdiscrimination of any nature, including on the basis of sex. And sexual violenceis outlawed in the Sexual Offences Act. With regard to abuse of office, Chapter6 illustrated that public servants engaged in campaigning for the incumbentpolitical party and abused public resources, contrary to the Public OfficersEthics Act as well as the National Assembly and Presidential Elections Act. Interms of hate speech, there are clear laws to address the same although Kenyadoes not have a law specific to hate speech. Yet impunity thrived—a recurrentproblem during election periods, when Kenya seems to suspend laws or provide

‘collective impunity’ for breaches of the same.

Connected with impunity is passing the buck. The ECK passed the buck to theKenya Police Force, the Kenya Police Force gave a counter-argument to theECK. The Attorney General, as head of public prosecution, passed the buck tothe Kenya Police Force to furnish evidence to enable prosecution. The KACC was also caught napping and yet many Kenyans criticize the KNCHR for beingpartisan when it speaks on gross human rights violations and the buck is

16 See Julius Ihonvbere, Towards a New Constitutionalism for Africa, Centre for Democracy and Development, 2000



passed to Ministry of Justice and Constitutional Affairs. In this, impunityreigned as no one public institution took responsibility for prosecuting those who were liable. The following section highlights some of the laws orregulations governing elections to illustrate how they were breach withimpunity.

1) The Constitution of KenyaPart V of the Constitution, Kenya’s supreme law, provides for the protection of fundamental freedoms and individual rights, including those discussed inChapter 2. Before, during and after the elections, these rights have beenviolated with impunity. The right to security, life, livelihoods, housing, water,food and others were sacrificed at the altar of political expediency with agovernment and a populace that failed to respect, protect and promote thoserights. The Constitution also establishes the ECK, with a mandate to ensureelections are free and fair, among other key responsibilities.

2) The Penal Code

Acts that are of a criminal nature, such as instigating violence or participatingin violent acts are prohibited under the Penal Code. Section 66(1) commits oneto two years imprisonment when an untrue statement which causes alarm anddespondency among the public is made. Section 94 and 95, on conduct likelyto cause a breach of the peace, commits one to six months imprisonment if theutterances, expressions or conduct are disparaging to the president. Section 96outlaws verbal utterances or the printing of materials that could cause acts of violence to erupt. It reads:

“a) Any person who, without lawful excuse, utters, prints or publishesany words or does any act or thing indicating or implying that it is not, or

might be desirable to do or omit to do, any act, the doing or omitting which is calculated, to bring death or physical injury to any person or toany class, community or body of persons; b) to lead to the damage ordestruction of any property; c) to prevent or defeat by violence or by otherunlawful means the execution or enforcement of any written law or tolead to defiance or disobedience of any such law or to any lawfulauthority, is guilty of an offence and is liable to imprisonment for a termnot exceeding three years.”

The Penal Code also prohibits bribery and other corrupt activities,complemented by the creation of the KACC through the Anti-Corruption and

Economic Crimes Act.

3) The Election Offences Act To complement the Penal Code, this law provides for the orderly running of elections by prohibiting offences which compromise the people’s will.Candidates are prohibited from bribing and/or influencing voters withhandouts, or any other means, to obtain votes from the electorate. UnderSection 10, prohibited offences include: to sell, offer for sale, or buy, or offer tobuy a ballot paper or voter’s card, to bribe a voter with money or anything else



of value in order to influence his or her decision to vote. The object of thisprovision is to ensure the right to vote is not compromised. As illustrated inChapter 6, all these offences took place with impunity.

With regard to violence, Section 9 provides that every person shall be guilty of the offence of undue influence who directly or indirectly, by himself or by any

other person on his behalf, makes use of or threatens any force, violence orrestraint, or any temporal or spiritual injury, damage or loss, or any fraudulentdevice, trick or deception, for the purpose of or on account of:

“(a) inducing or compelling a person to give or refrain from giving hisvote, whether to a particular candidate or not, at an election; (b)otherwise impeding or preventing the free exercise of the franchise of anelector or voter; (c) inducing or compelling a person to refrain frombecoming a candidate or to withdraw if he has become a candidate; (d)impeding or preventing a person from being nominated as a candidate foran election or from being registered as a voter.”

With regard to hate speech, Section 11 is perhaps the best legal ammunition. Itoutlaws the printing, publication, distribution of materials such as handbills,placards or posters, including advertisements, which refer to any election and which do not bear the names and addresses of its printer and publisher. It alsoprohibits the publication or distribution of materials or any false statement inrelation to any candidate’s personal character or conduct. Chapter 5 of thisReport shows this law was breached.

Further, the ECC forms part of the law governing elections to ensure that theyare free and fair, promote a climate of tolerance where political activities are

carried out, including campaigns, without fear of intimidation, coercion orreprisals. The ECC binds political parties and candidates duly nominated bypolitical parties participating in the elections. With regard to violence,Paragraph 5(c) calls upon all political parties and candidates to “condemn,avoid and take steps to prevent violence and intimidation”. Section 6 of thesame prohibits the use of public office to influence political and electoraloutcomes. Again, none of these prohibitions was brought to bear.

4) The Public Order Act and the Preservation of Public Security Act To complement the Penal Code are two other laws: the Public Order Act andthe Public Security Act. The Public Order Act was amended in 1997 to facilitate

the holding of campaigns by political parties and candidates by outlawing theneed for licenses and other permits to hold public meetings. Prior to thatamendment, political parties and candidates were required to obtain permitsfrom the Kenya Police Force, approved by the DC, as head of the districtsecurity committee.17 Following the amendment, those campaigning need only

17 Under KANU, the opposition was unable to obtain these permits. They held their rallies nonetheless, leaving theKenya Police Force with the option of stopping them using violent means such as beatings, tear-gassing, arrestingopposition members and their supporters and arraigning them in court for holding illegal meetings. As it existedbefore, the Public Order Act breached the freedom of assembly provided for in the Constitution of Kenya.



notify the OCPS with jurisdiction where the public meeting will be held. Thenotification must be given not less than three days and not more than fourteendays before the holding of the public meeting. The OCPS can refuse to grantpermission for or disperse the meeting if a breach of the law results from themeeting. While there was general observance of this law in the 2007 GeneralElections, breaches also occurred, especially post-elections.

The Preservation of Public Security Act provides that no person shall berestricted on account of his political beliefs or activities, complementing thePublic Order Act and reiterating the fundamental freedoms and rights providedfor in the Constitution of Kenya.

5) The Public Officer Ethics Act This law governs the conduct of public officers and prohibits them fromshowing bias during the electoral process. Section 15 calls upon all publicofficers who have been given custody of public resources to ensure they do notmisuse or misappropriate the same resources. But Chapter 6 illustrates that

the Provincial Administration and public institutions, including parastatals,misused public resources in PNU campaigns. Section 16 prohibits publicservants from political activities, such as campaigns, which compromise theneutrality of their offices. However, senior public servants were directlyengaged in campaigns for the incumbent PNU. The banning of public servantsfrom participating directly in politics is further provided for within the NationalAssembly and Presidential Elections Act. Section 17 of this Act bars them frompublicly supporting or opposing any of the political parties participating in anelection and, if they do so, they are liable to pay a fine of not more thanKES50,000 and/or imprisonment for six months.

Enforcement FrameworkFrom the above, that lack of enforcement appears as a major cause of impunity. This section highlights the role of three public institutions, which aremeant to ensure that when the above laws are broken, there is prosecution of those who breach them.

1) The Role of the ECK: failing to fully exercise its mandate The ECK is not felt in terms of prosecution. However, it is supposed to beguided by the ECC when addressing offences, including those related toviolence, committed by political parties and candidates. To ensure compliance,the ECK should apply to the High Court, but the former is primarily

responsible. The ECK is empowered to issue a formal warning, impose a fine,ban political parties or candidates temporarily or permanently fromparticipating in elections, including printing and distributing campaignmaterials. Those who face these penalties have the right to go to court and seekredress. This applies where the aggrieved party maintains that the proceedingsof the ECK ad hoc tribunal were unfairly held or oppressive. The ECK needs toapply to court to ensure these penalties are imposed. In the pre-election period,the ECK summoned several candidates and political parties and imposed fineson them for engaging or instigating violent acts. But it did not pursue fully



offences relating to hate speech provided for in Section 11 of the ElectionOffences Act.

2) The Kenya Police Force: maintaining law and order? The Kenyan Police Force is established through the Police Act. The raison d’ être for its existence is to enforce laws, maintain peace and ensure the

fundamental freedoms and individual rights are protected. It should act without fear of favour and Section 14 of the Police Act prohibits any policeofficer from acting in a manner likely to show political affiliation. However, theKenya Police Force is a ‘regime police’ which tends to favour the incumbent. Inthe Kenya Police Force’s Strategic Plan, there is an admission that the force“has in the past practiced regime policing focusing substantial institutionalenergy on sustaining the power of the ruling party.”18 The KHRC similarlycontends, given the Kenya Police Force’s origins and purposes under colonialrule: “at its birth therefore, Kenya’s police force carried the marks of a punitiveand citizen-containment squad, rather than a service-oriented force.”19 Further, over the years, the Kenya Police Force has had the reputation of being

the most corrupt public institution as well as the worst public violator of human rights. As recently as last year, the media reported incidents where theKenya Police Force violated Kenyans’ human rights. Both public institutionsand NGOs continue to receive complaints of police harassment.20

It has been argued that it is difficult for the Kenya Police Force to maintain lawand order using rule of just law, rather than corrupt, ‘regime policing’ corruption for three reasons. First, there are administrative problems. TheKenya Police Force is understaffed, poorly equipped and subject to poor workconditions. The labour and other human rights of police officers are known butrecommendations for reform, including through establishment of a Police

Service Commission, have fallen on deaf ears. Second, most police officers thatcommit offences or violate human rights go largely unpunished by the KenyaPolice Force as well as by the judicial system—because the Kenya Police Forceitself has to arrest the person who has committing the crime or human rightsviolation, carry out investigations, and prosecute.21 There are no internal orexternal checks and balances or controls. Third, several Kenyan laws are inplace which grant the police broad powers.22 For example, powers given to theAdministration Police include the ability to enter premises and stop vehicles without warrant, stop and detain any person for production of licenses, takecustody of unclaimed property, arrest persons without warrant and use of firearms. Such powers, unfettered, obviously lead to human rights violations,

including the rights to life and personal liberty. Oversight mechanisms arerequired to ensure the Kenya Police Force adheres to the law and are seen to be

18 The Kenya Police Strategic Plan (2004-2008), Nairobi: GOK.19 Mission to Repress: torture, illegal detentions and extrajudicial killings by the Kenyan Police, Nairobi: KHRC, 1998.20 Organizations such as the KNCHR, the IMLU and RPP have been brought these complaints. See Biannual Human

Rights Report: January–June 2006, Nairobi: KHRC, 2006.21 The power to prosecute is delegated from the Attorney General/State Law Office, where any police officer at or abovethe rank of inspector may prosecute for and on behalf of the Office.22 For instance, the Suppression of Terrorism Bill of 2003 lowers the standard of burden of proof in criminal cases,grants power to the police to detain cash and forfeit the property of suspects and sanctions torture and police brutality.



fair and non-partisan in the execution of their mandate of maintaining law andorder.

In several pre-election reports authored by several organizations,23 the role of the Kenya Police Force has been scrutinised. Most recommended that it providesecurity and carry out prompt, independent and impartial investigations into

each and every case of electoral violence. However, such recommendations failto take into account the above limitations.

3) The Attorney GeneralPowers of this public office are provided for in Section 26 of the Constitution of Kenya. The Attorney General is appointed vide Section 109 and Section 26gives the office powers exercised without the direction of any authorityincluding: being the principal legal adviser to the Government; to institute andundertake criminal proceedings against any person before any court (otherthan a court-martial) in respect of any alleged offence; to take over andcontinue any such criminal proceedings that have been instituted or

undertaken by another person or authority; and to discontinue at any stagebefore judgment is delivered on any such criminal proceedings instituted bythe office or any other authority (referred to as nolle prosequi).24 The Sectionalso provides that the Attorney-General can order the Commissioner of Policeto investigate any matter which relates to any offence, who shall report to theAttorney-General upon concluding the investigation. Thus, the AttorneyGeneral is able to not only prosecute what the Kenya Police Force brings forth,but also order investigations to given offences. With regard to violence, pre-election reports indicate complicity on the part of the Attorney General, forfailure to use powers bequeathed, passing the buck to the Kenya Police Force.Hate speech, abuse of public resources and violence against women were also

undertaken with impunity, with silence on the part of the Attorney General.

23 These include: Elections and Human Rights Bulletin No. 1, November 2007, Nairobi: KHRC; State of Kenya Elections

2007 Report December 2007, Nairobi: CRECO; and Still Behaving Badly: second periodic report of the Elections Monitoring Project December 2007, Nairobi: KNCHR.24 Many NGOs have criticized these powers, which have seen the office terminating cases for reasons other than thepublic interest. Cases involving Kenya’s economic and political elite, for example, have been terminated.



7.0 Election Day and the Aftermath

Once the President, through his constitutional powers, dissolved parliamentand the ECK announced the date of the elections as Thursday December 27,2007, the electoral process peaked. It included: the validation of voterregistration by the electorate; chaotic political party nominations; nominationsof new Commissioners to the ECK; and the ‘official campaigning period’ that

ended on Monday December 24, 2007. Kenyans geared up for the mostcontested elections in Kenya’s history. As seen in previous Chapters, there were incidences that violated democratic and human rights: intimidation andviolence; the use of hate speech; discrimination against female candidates andgender-based violence; and the abuse of public resources.

Many NGOs released statements, cautioning that human rights violations hadoccurred prior the elections that could jeopardize the right to vote andcompromise electoral outcomes. The first Bulletin25 released by the KHRC’sEMRC, in November 2007, noted these human rights violations and pre-electoral malpractices could jeopardise the freeness and fairness of the 2007

General Elections if there were not addressed. As Kenyans prepared for pollingday, little was done to do so by relevant public institutions. Chapter 7demonstrated that several laws were broken with impunity. Other NGOs, underthe CRECO, pointed out similar issues, calling for adherence to the law, beforepolling day.26 And the KNCHR released two reports in December 2007, statingthat politicians and public servants were “still behaving badly,”27 noting withconcern the violence, hate speech, discrimination against women and abuse of public resources.

Relative to the abuse and misuse of public resources, the CAPF, a coalition of 36 NGOs, pointed out that the cost of abusing and misusing public resourcesby the PNU was KES139 million by December 17, 2007. CAPF also questionedthe sources of the sums ODM (KES501 million) and PNU (KES642 million) wereusing for their presidential campaigns. CAPF concluded that only 40 per centof such funds had been raised legally through fundraising, while the remaining60 per cent had been raised through institutional corruption, from armdealers, pyramid schemes, oil companies and other such companies, not alllegal and, in all cases, corrupting would be Presidents.28

A day before polling day, on December 26, 2007, the KHRC noted sevenconcerns which could jeopardize the freeness and fairness of the 2007 General

Elections. First, the right to the security of the voter had not been guaranteed,especially in conflict areas, which could lead to lower voter turnout andinfluence the outcomes of the elections both in those areas and nationally.Second, the right to campaign, particularly for women, had been compromised,violating the candidates’ right to be elected, which could have an impact of the

25 See The Status of Human Rights Protection in the Electoral Process: October to November 2007 , Elections and Human

Rights Bulletin No. 1, November 2007, Nairobi: KHRC.26 See State of the Nation, Issue 1 and 2, released in December 2007, Nairobi: CRECO.27 See Still Behaving Badly: Second Periodic Report, December 2007, Nairobi: KNCHR.28 CAPF, Interim Report on Presidential Campaign Expenditure, released on 17th December 2007.



ratio between men and women in political office at all levels. Third, the right tofreedom of expression had been abused, with hate speech compromising thechoices Kenyans would make. Fourth, the right to freedom of assembly hadbeen violated, which could affect voting patterns. Fifth, the misuse of publicresources and the expedient allocation of districts and other public goods hadcompromised the right to vote. Sixth, voter bribery through financial

inducements continued unabated, compromising peoples’ choices. Finally, theKHRC singled out persistent allegations of rigging the elections in favour of theincumbent political party, which could comprise electoral outcomes andtherefore, the inalienable right of Kenyans to decide their own destiny.

Therefore, although Kenyans turned out in unprecedented numbers to pollingcentres to cast their votes on polling day, issues had already been raised ashuman rights violations and violations of the electoral framework, legal and/oradministrative. The KHRC urged Kenyans to “be vigilant to ensure that theelections are free and fair and not compromised by electoral malpractices at thepolling stations, particularly late in the day” and to “vote in candidates

committed to human rights and good governance.” Finally, the KHRC urged allcontestants to “respect the verdict of the people” and stated that “anycontestation of the elections’ results should be done through legally-establishedprocedures.” The KHRC stated that any “attempt to resort to violence should beroundly condemned by the electorate.”29

Election Day: the KHRC’s initial verdictOn polling day, the KHRC had 156 election observers who visited pollingcentres countrywide. Reports returned to the EMRC indicate thatadministrative procedures with respect to the opening and closing of pollingcentres, voter turnout and their conduct, the management of the process by

the ECK, the provision of security by the Kenya Police Force were generallyrespected and upheld.

However, there were administrative and logistical problems in some pollingcentres in some constituencies. At the EMRC, reports were received from theKHRC’s staff who observed in Nairobi province and from monitors outside of Nairobi province. Many polling centres opened late, while in Makadaraconstituency, the ballot papers were missing the names of some candidates. Insome constituencies, such as Naivasha, voting materials intended for EldoretNorth had been mistakenly supplied.

There was unprecedented voter turnout, with long queues forming as early as 6am, resulted in frustration due to delays and the lack of professionalism andspeed of polling clerks. There was no uniformity among ECK staff—in somepolling centres, voters were given all three ballots at once, but in others, theyreceived them one ballot at a time. In most polling centres, there was confusionabout where to queue since the queues were not well marked or notdemarcated (according to surname) in the most efficient way to ensure the

29 KHRC, Press Release, 26th December 2007.



queues were more or less equal. This happened in Kikuyu constituency, wherenames beginning with ‘M’, ‘N’ and ‘W’ had long queues, since Kikuyuconstituency is predominantly Gikuyu. Similarly, in Kibera and Lang’ataconstituencies, the same was noted for the ‘O’ and ‘A’ queues, given that theyare predominantly Luo. In addition, ECK staff were not conspicuous, andpeople had difficulties identifying them.

The EMRC also received reports about intimidation of voters in the strongholdsof various political parties and in conflict areas such as in Kuresoi and MountElgon. In Nairobi, the KHRC visited Olympic Primary School, a polling centre inLang’ata constituency where voters perceived to be anti-ODM were threatenedagainst voting. While polling day was relatively peaceful, there were pockets of violence in some polling centres. And, as anxiety for the announcement of polling centre results built, acts of intimidation and violence were reported inalmost all polling centres in Nairobi as well as some polling centres outside theprovince. The KHRC thus made a preliminary assessment30 of the 2007General Elections are follows:

1. The Electorate: the KHRC congratulated Kenyans for turning out inunprecedented numbers to cast their votes. Most Kenyans were determinedand patient in braving delays in the opening of the polling centres as well asthe counting, tallying and announcement of results. Over 65 per cent of Kenyans voted—in some areas, up to 80 per cent. Most Kenyans were alsovigilant, attentive to detail yet cooperative with all actors in the electoralprocess to ensure that polling day was peaceful, free and fair. However, theKHRC expressed concern about allegations of electoral malpractices andillegalities aimed at subverting the will of the electorate. The KHRCdemanded that the ECK investigate the strongholds of the two major

political parties, ODM and PNU, where over 90 per cent turnout wasregistered, before any official announcement of results was made. Thisdemand fell on deaf ears as the ECK chair proceeded to announce resultsanyway.

2. Violence: the KHRC observed that in constituencies such as Garsen,Kamukunji,31 Starehe, Rongo and Kajiado North among others, someKenyans, candidates or their agents, prevented ECK staff from fulfillingtheir constitutional and legal mandates. Incidents of death and injuriesarising from violence, intimidation and use of hate speech were reported inthese constituencies. In other constituencies, such as Kitutu Chache,

Lang’ata, Webuye and Westlands, the EMRC received reports of intimidation, where voters, party agents and supporters of candidatesintimidated other voters and ECK staff. The KHRC also noted with concernthe intimidation of ECK Commissioners at the KICC–the national tallyingcentre. The KHRC recommended that the ECK be allowed to work, withoutfear or favour, to discharge its mandate. As violence began across the

30 General Elections 2007: a preliminary assessment , released on December 30, 2007, Nairobi: KHRC.31 The results from Kamkunji Constituency were cancelled and a by-election is expected by mid-June 2008.



country, the KHRC condemned the violence and recommended thatinvestigations be instituted with a view to arraigning those involved incourts of law.

3. Voter Bribery: acts of bribery of voters by candidates were reported tothe EMRC in Gatanga, Ikolomani, Kibwezi and Westlands constituencies.

The KHRC condemned these acts, urged the ECK, the KACC and the KenyaPolice Force to investigate and urged the same public institutions toproactively investigate this malpractice in other constituencies.

4. The Kenya Police Force: the KHRC appreciated the role of the KenyaPolice Force, which was reported to have acted professionally in its duty toprotect the right to security of voters, candidates, party agents and ECKstaff. The KHRC empathized with the families of members of the KenyaPolice Force and the Administration Police who lost police officers inconstituencies such as Rongo. However, reports filed to the EMRC indicatedthat in some constituencies, such as Kamkunji, the Kenya Police Force used

excessive force in dealing with people suspected of breaking the law. TheKHRC was also concerned that, in other constituencies, the Force did notsafeguard the integrity of the process. While appreciating the difficulties of dealing with crowds and those hired to disrupt the electoral process, theKHRC urged the Kenya Police Force to respect human rights of all persons who are to be assumed innocent until proven guilty in a court of law. TheKHRC thus recommended the Police Commissioner investigates violent actscommitted against police officers as well as those committed by policeofficers against Kenyans. The KHRC reiterated its longstanding appeal forthe establishment of a Civilian Oversight Body32 to hold police operationsaccountable to the public.

5. The ECK: the KHRC appreciated the role played by the ECK in ensuringa peaceful polling day December 27, 2007. For reports reaching the EMRCindicated that general appreciation of the ECK’s professionalism on pollingday. However, the KHRC took issue with reports of irregularities,malpractices and illegalities prevalent that day and following. Theseincluded: a) delays in opening some of the polling centres; b) unusual delaysin vote counting, tallying and announcing results; c) the late arrival of materials in some polling centres; d) sending incorrect ballot papers to someconstituencies, such as Naivasha; and e) elements of unprofessionalism

among ECK staff.

6. Electoral Malpractices and Results: the KHRC was concerned thatsome ECK staff were allegedly complicit in electoral irregularities,malpractices and illegalities. The KHRC condemned this lack of integrityand urged that all such ECK staff be held to account. The KHRC also tookissue with the unusual delays in announcing results, particularly at the

32 See Sessional Paper on the Creation of a Civilian Oversight Body, July 2007, Nairobi: KHRC.



presidential level. The KHRC was concerned that these delays triggered theacts of violence in some cities and towns countrywide. Further, the KHRCdemanded that the alleged anomalies between results announced at theconstituency level and those announced by the ECK Commissioners beexplained. Finally, the KHRC was concerned about allegations of resultsbeing submitted to ECK without the requisite documents, duly signed off,

and thus recommended that the ECK follow the law, including legalprocedures by nullifying all such results.33

7. Political Parties and Politicians: the KHRC urged political parties, theiragents and supporters to respect the electoral process. The KHRCcondemned the violence that had begun and urged Kenyans to defeat anyresort to violence that candidates, party supporters and some members of the public were inciting. The KHRC appealed to the parliamentarians MwaiKibaki and Raila Odinga, in their capacities as leaders of the PNU and theODM respectively, to assure the public that each would accept the results of the election if deemed free and fair.34 The KHRC urged any dispute arising

be settled within the courts and urged the Chief Justice to expeditiouslyaddress any such the petition.

The above was the verdict of the KHRC relative to polling day and its immediateaftermath. But what transpired around the announcement of the supposedpresidential elections was worrisome not just for the KHRC’s EMRC, but for the whole country. The unprecedented delays in the announcement of thesupposed presidential results had led to an anxious nation, already witnessingviolence by December 29, 2007. The KICC was filled with tense presidentialagents, political parties and media, as well as and puzzled NGOs. At one point,all present were forced to leave by teargas, leaving the ECK Chair to announce

the supposed presidential results under tight security, followed by animmediate and unceremonious swearing-in ceremony for the PNU presidentialcandidate, Mwai Kibaki, at State House.

“The hasty inauguration, the blanket banning on the broadcast media, thedispersal of security forces to deal with expected protests…What was notexpected was the speed with which the whole thing would unravel.”35 TheSenate of the United State of America, summarized what transpired thus:“whereas election observers reported serious irregularities and a lack of transparency that, combined with the plausibility of the margin of victory, andthe swearing in of the Party of National Unity presidential candidate Mwai

Kibaki with undue haste, all serve to undermine the credibility of the

33 Proverbially, this is what broke the camel’s back in the presidential balloting. In 2008, those arguments vindicate theKHRC since, from the violence witnessed in the post-elections period, most of it was triggered by those results. The

quote from KPTJ, which opens this Chapter, illustrates the depth of the problem.34 As the KHRC released this Preliminary Statement, Raila Odinga was on live television stating the same. KHRC hadrecommended that any dispute be settled in a court of law, and requested the expeditious settlement of the same.35 See Manji, Firoze, It is Kenyan People who lost the Election, Pambazuka News, Issue 334, Oxford: Fahamu.



presidential elections results.” It also noted that no less than the ECK chairproceeded to state that “he did not know who won the elections.”36

These views were reiterated by other international observer groups, includingthe EUOM and the COG. The EUOM noted there were “serious inconsistenciesand anomalies”37 in the announcement of the presidential results at KICC. The

COG noted “the delay in declaring results resulted in Kenyans experiencingsignificant concerns about the validity of the results.”38

Locally, an ad hoc coalition of citizens as well as Kenya’s governance, humanrights and legal organisations called Kenyans for Peace with Truth and Justice(KPTJ) formed to address both the elections and the violence.39 Based on theelection results released by the ECK, the KPTJ did analysis that noted four keyconcerns: inordinately large variances between parliamentary and presidentialballots compared to those which pertained in the 2002 General Elections;additional, suspicious votes within the ODM and PNU strongholds sufficient toalter the supposed outcomes; a pattern of irregularities consistent with

allegations of rigging in favour of PNU’s presidential candidate; and abnormallyhigh voter turnouts in Nyanza province, where five constituencies registeredturnouts in excess of 90 per cent.40 In their Report,41 KPTJ concluded that: “wehave previously raised concerns about the manner in which the ECK concludedthe presidential elections and declared a winner. We are clear that given whattranspired at KICC, it is impossible to know who won the elections.”

36 See Resolution of the Senate, 110th Congress, 2nd Session, Calling for a Resolution of the Current Electoral Crisis in

Kenya, O\ARM\ARM08114.xml. 37 See Report, European Observation Mission for Kenya, 2008.38 See Kenya General Elections: the report of the Commonwealth Observer Group, January 2008, London:Commonwealth Secretariat.39 The KHRC is a member of the coalition, together with other governance, human rights and legal organisations,

including the public and statutory KNCHR and academia.40 See Preliminary Findings from the 2007 Presidential Elections Results Released by the Electoral Commission of Kenya,released on January 18, 2008: Nairobi: KPTJ.41 Countdown to Deception: 30 hours that destroyed Kenya , released on January 18, 2008, Nairobi: KPTJ.



8.0 Conclusions and Recommendations

As Kenyans embarked on the journey towards democracy, they initiallybelieved that former President Daniel arap Moi was the problem. In 2002, thatdiagnosis was illustrated by the NARC’s ascension to power under the slogan:Yote Yawezekana Bila Moi (Everything is Possible without Moi ). Local andinternational observer groups of the 2002 General Elections considered them

transitional and that Kenya had embarked on a new dawn as the people had spoken .42 From the Chapters above, however, it is clear that the transitionaloptimism was illusionary.

That does not, however, discount the substantial gains registered with respectto human rights. A recently released Report stated: “although the protectionand promotion of human rights of Kenyans progressed in a positive directionduring the review period, inadequate political will and commitment was shownby the government to ensure the effective protection and promotion of thoserights.”43 Thus, some milestones have been passed, with respect to all kinds of rights, but some setbacks remain, cited in the preceding Chapters, indicating

that Kenya still is striving for democratic transformation.

In this regard, from the above findings, the KHRC would like to conclude withrecommendations on the following human rights:

1) The Right to Vote: the chief custodian of this right is the ECK. Theindependence and integrity of the ECK was compromised by itscomplicity before, during and after polling day, especially with regard tothe national tallying exercise at the KICC. In addition, the electoralsystem of first-past-post is not suited for multi-ethnic Kenya.

Recommendations:

a) the hard option: the ECK is disbanded and reconstituted at alllevels, using the IPPG formula, by the end of 2008. The IPPGagreements should be legally secured and based on merit to ensurepolitical parties appoint competent professionals with integrity.

b) the soft option: Commissioners and staff (including contract andcasual workers) in the irregularities, malpractices and illegalities,resulting in electoral fraud be identified, investigated andprosecuted by the end of 2008.

c) Constitutional, legal, policy and administrative changes be made toreplace the current electoral system with mixed memberproportional representation by 2010.

42 See When Kenyans Spoke: a report of the 2002 General Elections, Nairobi: K-DOP. By its title, the K-DOP (the largestlocal observer group in Kenya’s history) expressed the optimism of the nation and further wrote: “Voters had becomediscontented with the ruling elite, and needed the power of the ballot to remove the unjust system that had become

oppressive. The result of the 2002 General Elections was a rejection of a political system that had become insensitive tothe problems afflicting millions of Kenyans.”43 See Human Rights House Network– Kenya, Human Rights in Kenya: The Post Moi Era (2003-2007), Nairobi: Claripress: 2007.



2) The Right to Integrity and Security of the Person: the Kenya PoliceForce guarantees this right. The Kenya Police Force worked in difficultcircumstances. However, it also, as a ‘regime force,’ used excessive forceagainst Kenyans.

Recommendations:

a) the Kenya Police Force should investigate and prosecute those whocommitted violence against police officers and those police officers who committed violence against Kenyans by the end of 2008.

b) the Commissioner of Police be relieved of his duties and replacedby the end of 2008.

c) those among the Kenya Police Force who gave orders to shoot tokill be relieved of their duties and prosecuted by the end of 2008.

d) the Ministry of Justice and Constitutional Affairs to enhance theindependence and capacity of the Ombudsperson’s Office by theend of 2008.

e) a Police Service Commission be established, within the frameworkof the Bomas Draft Constitution, by the end of 2010.

f) a Civilian Oversight Body, based on international frameworks thatexist for checking excesses of the police, be established by 2010.

3) The Right to Freedom of Expression: Chapter 5 addressed hatespeech. A balance should be sought between hate speech and thefreedom of expression.

Recommendations:

a) the Kenya Police Force and the KNCHR investigate sources of theleaflets, emails, blogs and SMS propounding hate speech andprosecute those responsible by the end of 2008.

b) the Kenya Police Force investigates audio and video footage of politicians in campaign rallies to prosecute those responsible forinciting violence by the end of 2008.

c) the KNCHR, together with NGOs, organises national and regionalfora to discuss hate speech by the end of 2008.

d) Parliament enacts hate speech legislation by the end of 2010.

4) The Right to Access Information: this right has been violated under

the Official Secrets Act. But the KBC has an obligation to broadcast in abalanced manner. The same should be applied to all media, includinglocal language radio stations, according to the Guidelines for ElectionsReporting of the Media Council of Kenya.

Recommendations:

a) the Freedom of Information Bill be enacted and related policyformulated and implemented.



b) the KNCHR and NGOs continue lobbying for the repeal of OfficialSecrets Act and the enactment of the Freedom of Information Act,by end of 2008.

c) the management of the KBC be de-linked from the state and it betransformed into a genuine national public broadcaster throughappropriate legislation and internal policies by the end of 2008.

d) the KNCHR and NGOs lobby parliament for amendments of theCommunications Commission of Kenya Act, to clearly delineateand limit the powers of the Minister of Information with respect tolive broadcasting by the end of 2008.

e) The Communications Commission of Kenya investigate audiorecords of local language radio stations between August 2007 andFebruary 2008 by the end of 2008 and withdraw licenses for thosefound guilty of hate speech by the end of 2009.

5) The Right to Freedom of Assembly: As seen in Chapter 1, manypolitical meetings, rallies and so on were held, enabling people toexercise their right to freedom of assembly. In conflict areas, however,

this right was compromised because of curfews and fear among thepopulace. Following the presidential swearing in, the right to assemble was violated.

Recommendations:

a) the KNCHR and NGOs continue lobbying for the promotion andprotection of all rights for all people.

b) the state Government to restore calm and address underlyingissues preventing peace in conflict areas by the end of 2008.

6) The Right to Freedom of Association: although political parties haveproliferated, democracy has not. The KHRC has supported the PoliticalParties Bill and therefore recommends the following.

Recommendation:

a) the state, through the relevant Minister, gazette and operationalisethe Political Parties Act by the end of 2008.

7) The Right to Equality and Non-Discrimination: this Report hasdepicted the manner in which women and other marginalised groups

were subjected to discrimination through hate speech and violence.Although women form the bulk of the population, only a handful made itthrough to civic seats and parliament.

Recommendations:

a) the KNCHR and NGOs, including the women’s movement, continuelobbying for the promotion and protection of all rights for all women and also ‘special interest’ groups.



b) Parliament amends the Constitution of Kenya to provide for districtseats where women contest parliamentary seats, relative to theBomas Draft Constitution, by the end of 2009.

c) Local Authorities specify wards where only women contest by2009.

d) the principle of ensuring women’s representation in appointive and

elective offices be enshrined in all public staffing policies at at leastthe Beijing target of 30 per cent (if not the AU target of 50 per cent)by the end of 2008.

e) Parliament and the reconstituted ECK work out a formula, throughMMPR to providing space for women and other marginalisedgroups by the end of 2010.

8) The Right to Campaign: most candidates enjoyed this right, but it wasviolated in three ways: through violence, candidates were unable tocampaign especially in conflict areas; female candidates were verballyand physically assaulted and threatened; and some political parties

hired youth to disrupt rallies of opposing parties in their strongholds.

Recommendations:

a) the Kenya Police Force establish a unit to provide security forcandidates, especially females, during campaigns by 2010.

b) to deal with stronghold intimidation, the state, through therelevant Minister, gazette and operationalise the Political PartiesAct by the end of 2008

c) the Kenya Police Force investigate and prosecute all cases of violence against female and other candidates by the end of 2008.

9) The Right to Freedom of Movement: this right was violated in areasunder curfew, in strongholds, for female candidates and those ordered tovacate their homes through hate speech.

Recommendations:

a) the Kenya Police Force establishes a unit to provide security forcandidates, especially females, during campaigns by 2010.

b) the state, through the relevant Minister, gazette and operationalisethe Political Parties Act by the end of 2008.

c) the KNCHR and NGOs continue lobbying for the promotion andprotection of all rights for all people and ‘special interest’ groups.

d) the KNCHR and NGOs continue lobbying for justice, includingcompensation, resettlement and restitution, for the IDPs.

10) The Right to Judicial Petition: the KHRC had urged all those who lostelections and felt aggrieved to do to courts of law. This Report, however,notes that the speed with which petitions are ruled upon denies would-be petitioners the rights to access justice and due process. In addition,



the presidential swearing in, following irregularities, malpractices andillegalities, was essentially ‘fruit of the poisoned tree.’

Recommendations:

a) all candidates, especially women, who believe they lost unfairly filepetitions, by end of the legally required time frame.

b) the Chief Justice to instate mechanisms, such as a special court,to hear all petitions before the end of 2009.

c) the LSK censures its lawyers who do not appear in court, thusslowing down the petition process.

d) the complicity of the Chief Justice and the judiciary in the electoralfailures be examined and addressed.

11) Regulation of Political Financing: where there is no ceiling oncampaign financing, those who have less money have their rights tocampaign compromised. Legal as well as illegitimate businesses bribecandidates for future favours, resulting in corruption.

Recommendations:

a) the Kenya Police Force, the Attorney General and the KACCinvestigate all campaign financing between September andDecember 2007 and prosecute all those guilty of corruption by theend of 2008.

b) the CAPF equips the above public offices above with informationthat could lead to the arrest and prosecution of the above by theend of 2008.

c) the Chief Justice institutes mechanisms, in the Anti-Corruption

Court to hear all cases before end of 2009.d) the state, through the relevant Minister, gazettes and

operationalises the Political Parties Act by the end of 2008.

12) Executive Discretion over the Timing of Elections: the presidencycontrols many institutions in charge of the electoral process, fromappointments to the ECK, to the judiciary, which presides over electionpetitions. This Report has also noted that the Provincial Administrationis also under the control of the Office of the Presidency.

Recommendations:

a) Parliament alters the Constitution to reduce the powers of thepresidency by the end of 2009.

b) NGOs and all Kenyans pressurize for the drafting and enactment of a new, democratic constitution by the end of 2010.

c) the state undertakes comprehensive judicial and electoral reformsby the end of 2009.

d) the Provincial Administration be abolished.



13) Impunity and Prosecution: Chapter 7 illustrated the impunity thatexists. Powers of prosecution rest with the Attorney General, with somedelegation to the Kenya Police Force.

Recommendations:

a) the current Attorney General be relieved of his duties by the end of 2008.

b) the state establishes Transitional Justice mechanisms by the endof 2008.

c) the state terminates prosecution by the Kenya Police Force andhires advocates by the end of 2009.

d) Parliament alters the Constitution by reducing powers of thepresidency by the end of 2009.

e) the KNCHR and NGOs continue the Campaign Against Impunity.f) the state undertakes comprehensive judicial and electoral reforms

by the end of 2009.

violating the vote

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