‘unhindered By The Rule Of Law’: Ethnic Terrorism And The 2007 Kenyan Presidential Election

‘Unhindered by the rule of law’: Ethnic Terrorism and the 2007 Kenyan Presidential Election Steve Snow South African Journal of International Affairs, Volume 16, Issue 1, April 2009 , pages 115 - 127

Abstract The 2007 Presidential elections in Kenya were followed by more than 1,000 deaths and the forcible displacement of perhaps 350,000. This was the result, in part, of frustrations from the miscounting that assured President Kibaki’s re-election, and the ensuing violent repression of protest and dissent. Most of these deaths and dislocations, however, were caused by ethnic terrorism, undertaken periodically by Kenyan politicians since the 1991 transition to what Paul Collier labels ‘democrazy’. Ethnic terrorism, part of the dynamic of violence that often plagues democratization in the poorest nations, seeks to advance the fortunes of one ethnic group by fostering a militant, fearful identity, and uses extreme violence to spur ethnic cleansing, to the political advantage of its patrons. This long-term dynamic in Kenya has featured widespread use of tribal militias, sexual violence, and impunity for its perpetrators, and will likely continue, unless Kenya’s political class complies with the Waki Report, which calls for the organizers and financiers of the violence to be prosecuted. Key Words: Kenya, elections, ethnic cleansing, democracy, Bottom Billion, INRODUCTION Joseph Schumpeter offers an unsentimental and productive definition of democracy: a political system in which leaders obtain the power to make decisions by ‘the competitive struggle for the people's vote’.1 Schumpeter’s analysis allows one to study the sordid side of politics in liberal democracies, such as manipulation of voters by appeals to base emotion and prejudice. Democracy among the ‘bottom billion’, to use Paul Collier’s term, is even seamier, because it is a struggle for votes unhindered by the rule of law.

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While democracy tends to decrease political violence in wealthier societies, Collier persuasively argues that what he terms ‘democrazy’ has the opposite effect for the very poorest. In countries such as Kenya, politics is a Darwinian struggle that produces shrewd gangsters instead of honest and competent political leaders.2 Winners and losers alike employ socially dysfunctional vote-winning strategies such as scapegoating minorities, bribery, intimidation, and vote rigging; the winners simply do it more efficiently. Getting out the vote is an unregulated enterprise, involving, for example, the brutal combination of gerrymandering and ethnic cleansing. Voters are organized mostly along ethnic lines, as it is the easiest way to organize political loyalty, and politicians often stoke existing ethnic animosities to maximize votes. Leaders, therefore, are not judged on performance, and so it is possible to do quite a bad job, yet stay in power. This is an attractive career option to a type of ambitious politician: ‘if being honest and competent does not give you an electoral advantage, then the honest and competent will be discouraged.

Crooks will replace the honest as

candidates.’3 As there is not much political legitimacy gained from the brutal process of electing such politicians, the losers often cry foul and resort to violence. Incumbents, in turn, find that elections weaken their techniques of repression, such as purges of potential opponents. In this sense, political violence unleashed by incumbents is analogous to terrorism: it is ‘a strategy of the politically weak’.4 This paper explores how Kenyan politicians use a form of terrorism to gain votes and power, and describes in some detail the ‘crooks’ that use such techniques. They are a shrewd and capable lot, and will likely enjoy further political success. Their practiced strategies include cultivating ethnic animosity, violent gerrymandering, repression, and miscounting votes.

The vote The first day of vote counting in the 2007 Kenyan elections did not go well for President Kibaki and his Party of National Unity (PNU). The ‘Cabinet was [politically] massacred, the Vice-President humiliated in a constituency contest, and the President

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[was] trailing by a million votes’.5 Twenty-three members of the Cabinet ended up losing their seats. The Defense Minister lost to an unknown businessman; a matatu (taxi) driver defeated another ‘untouchable’ Minister. Most of these casualties were members of the so-called ‘Mount Kenya mafia,’ Mr Kibaki’s political ‘generals,’ a collection of hardline Kikuyu leaders notorious for their corruption and arrogance.6 It seemed clear that Mr. Kibaki, facing challenger Raila Odinga of the Orange Democratic Movement (ODM), would be the first Kenyan President to lose an election. What a difference a day makes. On December 29, Mr. Samuel Kivuitu, the Chairman of the Electoral Commission of Kenya (ECK)— appointed by the President— implausibly announced Kibaki had moved to within 100,000 votes of his challenger, and made a joke about the electoral numbers being ‘cooked’. The ODM supporters in the crowd did not find it funny. Rather suspiciously, many results were missing, and Mr. Kivuitu was not offering convincing explanations. He admitted, for example, that many electoral agents—and the vote tallies they carried—had simply disappeared. Some of these clerks are reported to have disappeared, some have not been found, others were in the bar, yet others at their houses sleeping, and [so] they have not released the results.7 This seemed very much as though the Government was holding back certain returns until it knew how many votes it needed to win, and there was outrage and near rioting at the ECK Media Centre in Nairobi. William Ruto of the Orange Democratic Movement, alleged warlord of the Rift Valley, was on his feet constantly, challenging Mr. Kivuitu. Paramilitary General Service Unit (GSU) troops entered the hall twice to intimidate the crowd, and eventually bullied the Orange supporters out, and hustled Mr. Kivuitu off to the privacy of a VIP lounge at the Kenyatta Conference Centre. They sealed the building, and threw out all media except a few reporters from the tame, statecontrolled Kenya Broadcasting Corporation. Chairman Kivuitu, on television and visibly surrounded by heavily armed paramilitaries, declared Kibaki the President of Kenya. When the state-employed reporters ventured a few questions, the broadcast was cut off.8 A few days later, after Mr. Kibaki had been sworn in, Chairman Kivuitu admitted he did not know who had won the Presidential election, and abdicated responsibility for

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the votes that the ECK had certified.

He only declared Kibaki President, he said,

because PNU supporters ‘put pressure on me.’ He had seen evidence of faked returns, but lamentably was denied admittance to the tallying center to investigate. He considered resigning, but did not want to be called a coward.9 Eight months later, however, in the wake of the humiliating ‘Kriegler’ report on the elections, Kivuitu was more willing to consider resignation—on the condition that he was paid, in advance, his salary through 2012.10 The ‘Mount Kenya mafia’ and PNU had kept control of the Presidency despite a tidal wave of anti-incumbent voting. Sixty percent of sitting MPs were defeated, and the opposition ODM won 99 seats in the new Parliament, to the PNU’s 43. Kibaki’s team eased him back into office, however, by ignoring certified provincial ballot counts, and adjusting the vote totals as necessary.

Votes for the President from Nairobi kept

increasing, for example, even after the final returns for that city were announced, and ballot papers materialized without marks for the parliamentary candidates, voting only for Kibaki.11 International observers were not favorably impressed. Teams from the European Union, the Commonwealth Observer Group, and the East African Community all subsequently reported major flaws in the counting of the Presidential votes.12 The report of the South-African based Independent Review Commission, chaired by Johann Kriegler, concluded that the elections ‘were a resounding failure,’ and noted it was impossible to be sure who won, since ‘the recorded and reported results are so inaccurate as to render any reasonably accurate, reliable and convincing conclusion impossible’.13 Kenyan law provides for a 24 hour period after closing of the polls to lodge any electoral disputes—such as requests for recounts or checks of ballot papers—to be submitted to the ECK, which is required to respond within 48 hours. It is only after this 72-hour period that the ECK is authorised to announce the outcome. The leaders of the PNU, however, were in a hurry. Within 30 minutes of Mr. Kiviutu’s certification of the fudged numbers, in a procedure ‘irregular, unlawful and void in law,’ Mr. Kibaki was sworn in at his private residence, without the national anthem or the presence of the diplomatic corps. What the ceremony lacked in pageantry, however, it more than made

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up for in heavy security.14 The Violence Before President Kibaki had finished reading the oath of office, the violence had begun, mostly against Kikuyu peoples.15 The same night that Kibaki was declared President, the Kenyan government, without legal grounds, banned public rallies and live news broadcasts.16 Most of the broadcast media were intimidated into suspending their broadcasts, and there were official shoot-to-kill orders for ‘looters,’ selectively enforced against political opponents and their communities. Police killed 405 people, in part by shooting randomly into crowds and at bystanders.17 In Kisumu, a predominantly Luo area and ODM centre of power, the police were shooting into crowds on 29 December, before the elections results were even announced.18 In Nairobi, police shot demonstrators ‘on every day that significant opposition protests attempted to convene’.19 The ‘Report of the Commission of Inquiry into Post-Election Violence’ (the so-called Waki Report’) later termed these ‘grossly unjustified … senseless death[s].20 Concurrent to the government repression, unprecedented ethnic cleansing of thousands of Kenyans effected dramatic ethnic segregation. This was in response both to the Orange election platform that stopped just shy of calling for forcible ethnic segregation, and the popular sentiment that Kibaki had stolen the election. An atrocity at a small church in the Rift Valley became a symbol of the postelectoral violence. By New Year’s Day, the Kenya Assembly of God Church in Eldoret was already a refuge for many Kikuyu refugees, chased from their homes and land, fleeing retribution for the stolen election. There were many such people on the run in the Rift Valley and elsewhere, who feared marauding bands of infuriated youths from other tribes. After religious services that day in Eldoret, there appeared outside the church 300 or so young men, armed with machetes and bow and arrows. They hacked down all they could catch outside, sealed the rest in the church, and set it alight, burning it to the ground. Thirty-five women and children were killed. Human Rights Watch later interviewed some of the young men responsible for the atrocity at the Kenya Assembly of God church in Eldoret. They insisted that they had not meant to kill all their victims, but

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warned they ‘would murder any of their former Kikuyu neighbours who dared return home’.21 Waves of ethnic cleansing and reprisal campaigns followed, rife with murder, pillage, arson, and sexual violence. ‘Luos have gone back to Luo land, Kikuyus to Kikuyu land, Kambas to Kamba land and Kisiis to Kisii land. Even some of the packed slums in…Nairobi have split along ethnic lines’22 Entire communities were uprooted: ‘In many communities around Eldoret every last Kikuyu resident has been chased away and their homes destroyed behind them. . .’23. Thousands of Kisiis were expelled from at least twenty towns in the North Rift, accused of voting against Mr Odinga.24 Businesses and homes has been looted and burned.25. Ethnic cleansing is not a novelty in Kenyan politics, but the speed and intensity of the massive population displacement (estimated at 350,00026) was unparalleled. These internally displaced persons received an acronym (IDP) and were suddenly the responsibility of international relief agencies. The violence in Kenya in from January to March 2008 proceeded in several stages, to devastating effect. First, the announcement of the Presidential election results led to spontaneous violence by those convinced the Kikuyu would never relinquish power voluntarily. Intermixed and sometimes indistinguishable from these protests were also ethnic cleansing campaigns, often directed against Kikuyu communities in the Rift Valley and elsewhere. Because of the reprisal attacks, the violence became self-perpetuating. Politicians employed militias—such as the Chinkochoro for the Kisii and the Mungiki for the Kikuyu—made up of opportunistic, sectarian thugs, to terrorise and maim. The Presidency was also guilty of severe repression, involving hundreds of arbitrary killings by police and paramilitary units which only reinforced the violence springing from within Kenyan communities Currently, Kenya’s politicians counsel forgetfulness, having divided the spoils of power to their satisfaction and consolidated their grasp on power. They seek to repeat the whitewash of 1991 and 1997, when similar though less wide-spread

episodes of vote-

maximizing ethnic cleansing had occurred. It is a lethal combination: impunity for the organizers of violence, and political benefits gained through mobilised ethnic fear and hatred. It is a political pattern common among the ‘bottom billion’.

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Democracy, ‘Crooks’ and Ethnic Terrorism Ethnic terrorism, according to Daniel Byman, is violence by a sub-national ethnic group to advance its political goals, foremost among which is often creation of a separate homeland. Instigators of ethnic cleansing seek to create a militant communal identity that will grow stronger with each retaliatory act against it. Strikes against opposing ethnic groups create a cycle of retaliation and increasing sectarianism that promotes the fortunes of those who can kill the most. The key goal is a level of fear and ethnic persecution that will lead to communal action.

Ethnic cleansing also affords the victor a more

homogenous and often larger territory, organized around one set of leaders.27 Ethnic terrorists usually oppose the state, and thereby provoke repression that enhances group identity, and renews the cycle of violence. They are not interested in a secular or religious utopia, as are their brethren among the Baader-Meinhof or Al Queda. Rather, they more realistically seek to shape political events to their advantage, by electrifying and manipulating communal identity and heightening inter-group hostility. It is not difficult for ethnic terrorists to stoke fears, as rival groups often are, in fact, scheming to subordinate or attack them; one often finds there is a concrete history of discrimination and persecution that informs this type of terrorism. A dysfunctional, incompetent or partisan state exacerbates the situation.

As in the former Yugoslavia, Sri Lanka and

Kenya, fear increases in the absence of trustworthy and impartial agents of the state. Under such circumstances, citizens rely on ethnic militias to protect them, thereby adopting their assigned ethnic identities as a means of survival. In the absence of impartial state authority, all groups will arm themselves to prepare for the worst, which makes the worst more likely to occur. Not surprisingly, ethnic terrorism is especially damaging to new democracies among the ‘bottom billion’ , as elections become sectarian exercises that undermine confidence that the winner will respect the rights of the losers, which in turn make it more likely that the losers will reject the results. Moderate voices are drowned out, as compromise and accommodation become vote-losing strategies in the face of continuing violence along between ethnic groups.

Those seeking compromise are likely to be

branded traitors and replaced by hard-liners. Politics becomes a game of pretending

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moderation in ethnic issues, while organizing whatever violence is necessary to win.

Politics and Terrorism in Kenya Since the start of multi-party democracy in 1991, Kenyan politicians have violently manipulated ethnicity for political ends, passing off the resulting death and destruction as ‘ethnic clashes’.28 This cycle of attacks, retaliation, and generalized communal violence have involved periodic ethnic cleansing, instigated by votemaximizing Kenyan politicians who employ ethnic warlords and militias to intimidate voters.

President Moi, forced into democratic reforms, cynically used land hunger and

old tribal grievances to strengthen the sense of political solidarity among his own people, the Kalenjin living in the Rift Valley. Through this violent strategy he created a large enclave of ‘safe seats’ that he could use to maximize votes for his ruling party in the Kenyan Parliament.29 Kenyan politicians have often used what the human rights group Article 19 refers to as ‘informal repression.’ It is an effective strategy to hide human rights violations as ‘tribal clashes,’ and thereby conceal their real nature and provenance, in order to imply that society itself somehow bears responsibility, rather than the instigators of violence. In South Africa, for example, during the transition to democracy the police and intelligence agencies provided training and funding for the sectarian warriors of the Zulu-based Inkatha Freedom Party. This allowed opponents of democracy to claim that South African tribes were not ready for democracy.30 This technique is effective, in large part because the international media often file the news of death and displacement under ‘More Tribal Savagery in Africa’, instead of recognising them as examples of gross human rights violations or political repression. President Moi resisted democratic reforms by warning of the tribal violence that would inevitably result, and then provoked that violence to win the elections he was forced to hold. To do so, he fostered the notion that true multi-party democracy meant the reduction in power for the Kalenjin, and a grab for power by other tribes. In September 1991, a series of pro-Moi rallies in the Rift Valley preached ‘majimbo,’ a

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Swahili term which can be taken to mean a devolution of central government power or a type of federalism. However, in Kenya it is most often used politically to refer to a form of territorial sectarianism, most often directed at Kikuyu in the Rift Valley, seen as interlopers by tribes with longer residence in the area.

Moi supporters wanted an

arrangement in which …each community would be required to return to its ancestral district or province and if for any reason they would be reluctant or unwilling to do so, they would by all means be forced so to do.31 Moi’s goal, shared today by his political progeny such as William Ruto, was to create a giant, vote-rich, ethnically homogenous series of ‘safe seats’ for Kalenjin politicians.32

One motive for this, as the Akiwumi report noted, is to be found in the

Kenyan Constitution, which requires a presidential candidate garner 25% of the votes cast in at least five of the eight provinces of the country in order to be successful. The candidate must also have a plurality of the votes cast nationwide. The bloody redistricting in 1991-92 of large chunks of the Rift valley ‘as KANU [Kenyan African National Union] zones was clearly a move in that direction’. The government called it ‘demonic influences’, but it was in fact a brutally violent form of gerrymandering.33 President Moi used much the same tactics in the 1997 elections. KANU again cultivated ethnic tensions ‘to intimidate and disperse ethnic groups perceived to support the opposition.’ The violence was more widespread, however.34 A similarly suspicious type of ‘ethnic clashes’ began after the referendum on a new constitution in 2005, and the reverberating violence never really stopped. By the 2007 Presidential elections, there were still an estimated 380,000 internally displaced persons from the ethnic cleansing of the 1990s.35 Kenyan politicians trading in ethnic violence have learned by experience. They have explored logistical issues, established and funded organizations, used new media to advance their political message, and, most importantly, enjoyed complete judicial and political impunity. By the time of the high-stakes 2007 elections, there was considerable campaign experience and an ‘infrastructure of violence’ that could be easily mobilized.

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Violence had been politically institutionalized, and the state security agencies were not able or willing to stop it.36 The 2007 Kenyan Elections: An Ethnic Security Dilemma The new enmity, politics, wakes up the old enmity, ethnic competition over land. The worst thing the politicians have done is to awaken this thing, and when people move as a tribe you can’t control it. --Bishop Cornelius Korir 37 There was great hope when Mwai Kibaki, a consensus candidate, decisively defeated Moi’s political protégé in the presidential elections of 2002. Kibaki and his supporters, however, exacerbated political and ethnic tensions by reinforcing the reputation of the Kikuyu as canny and economically dominant, as well as the perceived exclusion of the Luo, who have never had a leader win the Presidency. Kibaki retracted his campaign promise to serve only one term, broke pledges to fight corruption, and ruled almost by decree.

Perhaps most importantly, he ignored a ‘memorandum of

understanding’ that promised to create a post of executive Prime Minister for Raila Odinga of the ODM.

President Kibaki concentrated on keeping political power,

therefore, and Mr. Odinga focused on capturing it. They and those around them were willing to use any means necessary. Perhaps most ominously, Kibaki’s sectarian and aloof rule allowed the central tribal rivalry to grow and fester. For nearly four decades, Kenyan politics had often broken down into a competition between the Bantu-speaking Kikuyu peoples, the largest ethnic group in Kenya, and the Luo, a group related to the Dinka of southern Sudan. Smaller Bantu tribes tend to stick politically with the Kikuyu, while some Nilotic and Nilo-Hamitic tribes—such as the Nandi, Kalenjin and Masai—tend to support Luo speakers.38 Key policy choices over poverty, corruption, inequality, devolution of power, and economic growth were in 2007 transformed into tribal competition. The debate over majimboism never ended, and the subject roared back into prominence in 2007. In fact, one can see the elections of that year as a referendum on the subject. President Kibaki and the PNU symbolized the status quo of a centralized, if corrupt, government.

The ODM stood for regionalism, which formally meant an

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impartial devolution of excessive central government power, but also had a more sinister meaning. PNU supporters (including those interviewed by the author in December 2007 and January 2008) interpreted majimbo to be a euphemism for a forced ethnic segregation of Kenya. ‘In the Rift Valley, [it] meant giving Ruto's own Kalenjins the right to make all local decisions, and expel ethnic minorities back to their own ‘jimbos’ or homelands’.39 In the 1990s Moi had targeted Kikuyu as ‘alien settlers’ in the Rift Valley, and stirred up Kalenjin resentment to do so. The same dynamic was in play in 2007, led by William Ruto. Jackson Kibor of the ODM was quoted at this time as saying that ‘the Kikuyu community voted for Kibaki. …We want to drive Kikuyus out of Rift Valley…We will divide Kenya.’40

The current Minister of Wildlife and Tourism

suggested a more specific ‘final solution’ for the Kikuyu. ‘[R]educe them to an Island like Lesotho [because] that is the language they understand’.41 Kikuyu leaders also sometimes argued that their people should create such a mini-state based in Central Province and maintained by force. The difference was that it would be the Kikuyu conducting the expulsions, instead of being expelled.42 In short, the opposition ODM, led by Raila Odinga, a Luo from Western Kenya, correctly suspected Kibaki’s government of planning to grab the presidency through a rigged elections, and to use force to make it stick. Kibaki’s Kikuyu loyalists, in turn, also with considerable accuracy, accused the ODM of organizing violence and ethnic cleansing regardless of the election’s outcome, to settle old land scores and deepen their control of certain electoral districts. When the Kikuyu saw the Luo and Kalenjin extremists prepare themselves for battle, they did the same. Kikuyu voters were told the Luo wanted to ‘destroy the country and us along with it. …[I]n a fight to the last ... the winner would take all and damn the loser.43 The PNU all but accused the opposition of being aspiring génocidaires, and exaggeration that contained a grain of truth. One member of President Kibaki’s government, echoing Daniel Goldhagen’s analysis of the Holocaust, is reported to have characterized ODM ideology as ‘eliminationist anti-Kikuyu tribalism.’44 According to Kwamchetsi Makokha, the hate speech directed towards Kikuyu was intense—and the reaction to it equally so.

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If you set the stage where a single community has isolated itself, what follows is a feeling of resentment by others, of ‘what’s so special about you?’ It became a self-fulfilling prophecy.45 Those who foster ethnic violence in order to boost their own electoral fortunes begin a process that is difficult to stop. Other sub-national communities become unsure of their own their safety and arm themselves. ‘This very mobilization, however, is seen as preparation for conflict,’ which in turn increases the possibility of pre-emptive attacks by well-armed and organized ethnic groups. It is an ethnic security dilemma.46 For months before the Presidential election, the Kenyan press described in detail the defamatory, hateful, and ethnically-based campaigning. The tools of incitement were SMS, internet spam, pamphlets, vernacular radio stations, and politicians on the stump. More than 70 people were killed, for example, in election-related violence and ‘ethnic clashes’ from July to December 2007.47 In a sign of their increasing political sophistication, local militias began forcing voters to support their chosen candidates. In the Mount Elgon area, for example, where the Sabaot Defence Force has been waging a sectarian guerrilla war over land rights, the militia ‘circulated a [largely ODM] list of its preferred civic and parliamentary candidates and warned the residents against supporting any other.’ As a result of terrorism by the SDF, perhaps 20,000 voters were disenfranchised after being forced to flee their homes in the area.48 As did other militias, the SDF used arson, sexual assault and murder to instil fear and drive people from their homes. Retaliators used these same tools. It was common knowledge that the Kikuyu Mungiki militia, directed by elements close to the President, had previously undertaken campaigns to ‘circumcise’ women forcibly. In 2002, for example, the Mungiki demanded that all women aged between 13 and 65 submit to the traditional Kikuyu female genital mutilation.49 After the elections, Mungiki members launched reprisals for abuse of Kikuyu citizens by militias from other ethnic groups. In Naivasha, in attacks beginning on 27 January 2008—and apparently organized by the top leaders of the PNU—Mungiki members undressed and sexually assaulted women and girls wearing skirts and trousers.50 One incident became notorious, and is illustrative of several trends. Former

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minister of Roads Simeon Nyachae, an old lion of Kisii politics and a PNU member, called a rally in South Mugirango, the constituency of the only ODM supporter in the area. Nyachae was seated on a dais, with a fellow cabinet member, an assistant minister and several MPs. Nyachae introduced to the crowd members of the Chinkochoro militia, who had painted their faces red and were armed for the event. ‘These are the youths who will protect us during the political campaigns’, he said.51 He then ‘led [the] group of youths in chanting Gusii songs of war’.52 Reporters for the East African Standard, as well as several bloggers, wrote that the youths also sang ‘circumcision songs’.53 When ODM’s rising star William Ruto arrived (there is some dispute about whether he was invited to the gathering), he and a fellow ODM member were assaulted as they alighted from their helicopter. Bleeding, Ruto was dragged to safety with only minor injuries; his companion was hospitalized. Nyachae later denied any untoward behaviour. After all, the opposition MPs had invaded his gathering. ‘Apologise to who? For what? People cannot pee on me’, the minster explained.54 Predictably, there were reprisals by ODM supporters.55 Ruto’s experience at the hands of Nyachae’s Chinkochoro illustrates several important issues. First, it provided evidence that Kibaki’s cabinet included men who could be reasonably termed thugs and warlords.56 It also demonstrated the impunity with which these perpetrators of violence and ethnic cleansing operated—no action was taken, for example, against Hon Nyachae.57 In addition, the attack on Mr. Ruto illustrates the sexual violence that permeated Kenya in the first months of 2008. The Chinkochoro by all accounts intended to forcibly circumcise Ruto if they could have caught him. While women were victimized far more often, Kenyan men were also targeted for sexual violence in the post-electoral mayhem, including such forced ‘circumcisions,’ in order to terrorize them into leaving home and community.58 As part of what the Kenya National Commission on Human Rights (KNCHR) refers to as the ‘politics of the foreskin’, mutilation was used as a ‘weapon of war’.59 More generally, sexual violence as a tool of ethnic cleansing was ubiquitous during the election. In January and February, there were repeated and widespread reports of sexual violence against women and girls, often gang rapes, nearly always of ‘enemy communities’.60 Finally, this incident led to reprisals, as

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was quite common in the first months of 2008.61

The Aftermath and the Future Ethnic terrorism is distinctive from other forms of terrorism in part because of its likelihood of success. Religious or class-based groups, for example, do not achieve their utopian aims. Ethnic terrorists, however, launch attacks in order to strengthen ethnic identity and win advantages for their own group—and often succeed in doing so. The ethnic cleansing in Kenya has progressively, year by year, achieved its objectives: a segregated and volatile society peopled by fearful and militant local populations primed to follow their ethnic leaders, homogenous voting areas, and impunity for the actions of the perpetrators. The National Accord, brokered by Kofi Annan in early 2008, offered Kenyans an opportunity to break this violent cycle of ethnic cleansing with a ceasefire and other benefits. But it had a tricky caveat. The African Union’s Panel of Eminent Africans, led by Annan, proposed the creation of a new position of Prime Minister, to be given to Raila Odinga of the ODM in view of his evidently strong election result, and two deputy prime ministers. Mr. Kibaki would be recognized as the President of Kenya. The agreement also increased the number of Cabinet seats (further bloating the top-heavy nature of the Kenyan executive branch). So both sides gained: the President and the PNU retained the presidency, and ODM was rewarded with the post of Prime Minister, thereby increasing its political power and access to patronage. A potentially more significant element of the accord was the proposal from Annan to establish a Commission on Inquiry on Post-Election Violence (CIPEV), however. That commission a few months later released the Waki Report (based on the name of the commissioner recommending prosecution, investigating the financiers and organizers of the post-election violence. Perhaps the Waki Report will become the latest in a long series of official reports and exposés on violence in Kenya, likely full of incriminating evidence but dismissed by

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politicians as ‘biased’ or ‘hearsay.’

As such, commissioned reports can become a

delaying tactic to avoid the wrath of those violated in the immediate aftermath of periods of ethnic cleansing. 62 In a novel twist, however, the Waki report gives the Government 60 days to form a special tribunal to try the suspects it names in a ‘secret list.’ After that time, if the Government has not acted, these names will be forwarded to the International Court of Justice (ICC). It appears, however, that once again Kenya’s politicians will ignore the publication of the details of their crimes, and refuse to cooperate with any domestic or international prosecution of the criminals. It seems likely that the Waki Report will become the latest in a long series of official reports and exposés on political violence in Kenya, full of incriminating evidence yet dismissed and ignored by politicians as ‘biased’ or ‘hearsay’. According to Pinto Cabral, such commissioned reports often serve ulterior political motives: to defuse political tensions, forestall regime change, suppress popular revolt, cover up monumental crimes, evil and wrongdoing, protect the perpetrators of murder, rape, ethnic cleansing and corruption, divert the nation’s attention from important issues… and promote impunity and the ruling class’s arrogance. In a novel twist, however, the Waki report gives the government 60 days to form a special tribunal to try the suspects it names in a ‘secret list’. After that time, if the government has not acted, these names will be forwarded to the International Court of Justice (ICC). It appears, however, that once again Kenya’s politicians will seek to sweep under the rug the published details of their crimes. President Kibaki and Prime Minister Odinga are in a difficult political spot, it must be admitted. Both originally promised full cooperation with the Waki report, yet calling Kenyan politicians to account for their crimes is a tricky business. As always, the major players have their own to protect, and counsel forgetfulness. In William Ruto’s words, which are often repeated in one form or another by most of the Kenyan political establishment, “We should not be held hostage of [sic] the past neither should we drive

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this country using the rear mirror.”62 Prime Minister Odinga’s task is complicated by the fact that his erstwhile campaign lieutenant is now a rival in the next presidential elections, with an ethnic power base as de facto leader of the Kalenjins. Ruto, for his part, is suspicious that the Odinga may try to use the Waki Report to marginalize him politically. Indeed, Ruto led demands from within the Orange Democratic Movement that the government repudiate the Report in its entirety. After a ‘stormy’ four-hour ODM meeting in October 2008, Raila was forced to reverse course and declare that the ODM would refuse to allow its members to be extradited or surrendered to a tribunal outside its territory.63

In any case, the

legislation required to comply with the Waki Report failed to pass Parliament in February 2009, because of deep if largely hidden opposition from both sides of the Coalition.64 The Prime Minister, who did not sound too disappointed in the vote, responded by saying, “Some things you win, some things you lose.”65

Notes on Contributor

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‘Ruto: How I won the toughest battle,’ The Nation [Kenya], 8 June 2009,

http://www.nation.co.ke/News/-/1056/533354/-/view/printVersion/-/hla4v2z/-/index.html (date accessed: 8 June 2009) 63

Mugonyi, 2008b; Mathenge, 2008.

64

Namunane, B and G Macharia, “Puzzling alliances in fight against Tribunal Bill,” The Nation

[Kenya], 12 February 2009, http://www.nation.co.ke/News/politics/-/1064/529716/-/item/1/-

/11x7aq1z/-/index.html (date accessed: 8 June 2009) 65

Namunane, B, ‘Road to Justice Starts’, The Nation [Kenya], 13 February 2009,

http://www.nation.co.ke/News/-/1056/530142/-/view/printVersion/-/ueuijcz/-/index.html (date accessed: 8 June 2009).

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Steve Snow teaches Politics and Government at Wagner College in New York City, and writes on issues of economic and political development in such journals as Social Science Quarterly, Military and Political Sociology, Cultural Survival Quarterly, and Research in Political Economy.

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Kipkorir, D, ‘The Young Politician and the Cabinet - Who Will Cast the First Stone?’ The Nation [Kenya], 5 April 2008. Klopp, J, ‘Ethnic Clashes’ and Winning Elections: The Case of Kenya’s Electoral Despotism’, Canadian Journal of African Studies, 35.3, pp. 473-517, 2001. ——— ‘Can Moral Ethnicity Trump Political Tribalism? The Struggle for Land and Nation in Kenya’, African Studies, 61.2, 2002. ________ and P. Kamungi, ‘Violence and Elections: Will Kenya Collapse?’, World Policy Journal, 24.4, pp. 11-18, 2007. Mathenge, O, ‘Raila Gives Mixed Signals On Waki Report,’ The Nation [Kenya], 22 October 2008. Mbugua Kimani, M, ‘Ethnic strife: How Kenya’s politics was tribalised’, The East African, 1 July 2008. Mochama, T, ‘Tony Mochama scans Nyachae’s Chieftainship’, East African cStandard, 4 October 2007. Mugonyi, D, ‘Yes, Vote Tallying Had Problems, Admits Kivuitu’, The Nation [Kenya], 3 January 2008. ———, ‘ODM Rejects Waki Report’, The Nation [Kenya], 10 January 2008. Mulli, L, ‘Understanding election clashes in Kenya, 1992 and 1997’, African Security Review, 8. 4, 1999. Mwelu, J, ‘Police under fire over live rounds’, IRIN, 17 January 2008, http://www.irinnews.org/PrintReport.aspx?ReportId=76297 (date accessed: 11 April 2009). ‘ODM Condemns Poll Violence’, The Nation [Kenya], 25 September 2007.

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‘On the Brink of the Precipice: A Human Rights Account of Kenya’s Post-2007 Election Violence,’ Kenya National Human Rights Commission, August 2008. Ochami, D, ‘Election violence planned but not genocide, says US official’, The Standard [Kenya], 30 October 2008, http://www.eastandard.net/InsidePage.php?id=1143998193&cid=418 (date accessed: 11 April 2009). Omanga, B, R. Nyasato & A. Savula, ‘Return of Poll Chaos’, East African Standard, 22 September 2007. Okungu, J, ‘Simeon Nyachae is a liability to Mwai Kibaki’s government’, The New Vision [Kampala], 26 September 2007. Ongiri, I, ‘I acted under pressure, says Kivuitu’, The East African Standard, 1 February 2008. Opanga, K, ‘There is No Escape for Those in Waki’s Sealed Envelope’, The Nation [Kenya], 25 October 2008. Opio, A, ‘Kenya: Is Another Genocide Worth It?’ The Post [Buea], 24 January 2008) Otieno, D & C Wafula, ‘Orange Team Ejected from Nyachae Rally’, The Nation [Kenya], 22 September 2007. Pinto, C, ‘Why probe commissions are serving no useful purpose’, The Nation [Kenya], 24 October 2008. Querengesser, T, ‘Cellphones spread Kenyans’ messages of hate’, Globe and Mail, 29 February 2008. Ryu, A, ‘Western Kenya Residents Accuse Police of Targeting Opposition Supporters’, Voice of America, 18 January 2008. Schumpeter, J Capitalism, Socialism and Democracy, New York: Harper Perennial, 1962.

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Siddique, H, ‘Kenyan police kill 10 protesters’’, The Guardian, 17 January 2008. Some, K, ‘Pastor Relives Eldoret Church Massacre’, The Nation [Kenya], 3 January 2008. Some, K, ‘Raila-Ruto Rivalry Threatens to Slice Orange Party in Two’, The Nation [Kenya], 31 October 2008. Swain, J, ‘Kenya violence: ‘We waited, now we’ll chop them to bits’, Sunday Times [London], 2 March 2008. ‘Report of the Commission of Inquiry into Post-Election Violence -- The Waki Report,’ 2008. http://allafrica.com/peaceafrica/resources/view/00011636.pdf (date accessed: 14 April 2009). ‘Report of the Judicial Commission Appointed to inquire into the tribal clashes in Kenya’, Judicial Commission Appointed to Inquire into Tribal Clashes in Kenya, 1999. ‘The price of empowerment’, Al Jazeera, 21 December 2007, http://english.aljazeera.net/NR/exeres/5EF69EB0-0057-4EEF-935249D425107F7E.htm (date accessed: 11 April 2009). ‘Top officials planned Naivasha chaos’, The Nation [Kenya] 15 October 2008. ‘Rights activists decry Mungiki circumcision threat’, IRIN Humanitarian News and Analysis, 25 April 2002, http://www.irinnews.org/report.aspx?reportid=31538 (date accessed 19 May 2009). ‘Twilight Robbery’, Economist, 2 January 2008. ‘Top Officials Planned Naivasha Chaos’, The Nation [Kenya], 2008, http://www.nation.co.ke/News/politics/-/1064/480744/-/view/printVersion//7b5e54/-/index.html (date accessed: April 14, 2009).

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Wachira, P, & O Obonyo, ‘It is tragic but how far will Kivuitu and cast go?’ The Standard [Kenya], 28 September 2008. Wafula, C, ‘ODM threatens renewed protests’, The Nation [Kenya], 20 February 2008. Weru, G, ‘Why Kibaki Allies Were Punished At Home’, The Nation [Kenya], 30 December 2007 Wrong, M, ‘Who are the Kikuyu?’ Slate, 8 February 2008, http://www.slate.com/id/2184031/pagenum/all/#page_start (date accessed: 11 April 2009).

1

Schumpeter, 1946, p. 269. Collier, 2009. 3 Collier, 2009, p. 27. 4 Collier, 2009, p. 39. 5 ‘Raila Takes an Early Lead’, 2007. 6 Weru, 2007 7 Ibid. 8 ‘Electoral Commission of Kenya Sorts Out Poll Fiasco’, 2007. 9 Mugonyi, 2008; Ongiri, 2008. 10 Wachira, 2008. 11 Butagira & Otieno, 2008; ‘A New Dawn Among the Golf Carts’, 2008; ‘A Twilight Robbery,’ 2008. 12 Kenya National Human Rights Commission, 2008. 13 Independent Review Commission, 2008. 14 Kipkorir, 2008. 15 ‘Kenya: Fresh Term for Kibaki As ODM Rejects Results’, 2007. 16 Mwelu, 2008. 17 ‘Report of the Commission of Inquiry into Post-Election Violence, 2008, p. 417. 18 Ryu, 2008. 19 Hearing, 2008. 20 ‘Report of the Commission of Inquiry into Post-Election Violence’, 2008, p. 417. 21 Some, 2008; Hearing, 2008. 22 Gettleman, 2008. 23 Albin-Lackey, 2008. 24 ‘Caught Between a Rock and a Hard Place,’ 2008. 25 ‘Ethnic Cleansing in Luoland,’ 2008. 26 ‘Don't return, refugees warned’, 2008. 27 Byman, 1998. 28 Klopp, 2001. 29 Mulli, 1999. 30 Article 19, 1997. 31 ‘Report of the Judicial Commission’, 1999, p. 10. 32 ‘Report of the Judicial Commission’, 1999, p. 19. 33 ‘Report of the Judicial Commission’, 1999, p pp. 12, 21. 34 Klopp, 2002, p. 15. 35 Mwiandi, 2008. 2

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Kenya National Human Rights Commission, 2008, p. 50; ‘Report of the Commission of Inquiry into Post-Election Violence’, 2008, p. 22. 37 Maier, 2008. 38 ‘Kenya in Crisis,’ 2008. 39 Gettleman, 2008; Baldauf, 2008. 40 Anyango & Macharia, 2008. 41 Wafula, 2008. 42 Wrong, 2008. 43 Kimani, 2008. 44 Opio, 2008. 45 Wrong, 2008. 46 Byman, 1998. 47 Kenya National Human Rights Commission, 2007. 48 Bii, 2007. 49 ‘Rights activists decry Mungiki circumcision threat’, 2002. 50 ‘Top Officials Planned Naivasha Chaos’, 2008. 51 Otieno D & C Wafula, 2007. 52 Omanga, 2007. 53 Mochama, 2007. 54 Mochama, 2007. 55 ‘Kenya, Caught Between a Rock and a Hard Place’, 2008. 56 Okungu, 2007. 57 Kenya National Human Rights Commission, 2007. 58 Dixon, 2008. 59 ‘Kenyan Gangs Use Genital Mutilation as Weapon in Post-Election Violence’, 2008. 60 ‘The Price of Empowerment’, 2007. 61 In mid-January 2008, one Kikuyu victim of ethnic cleansing said, ‘When they came to my house, they asked me why we attacked ODM Pentagon member William Ruto in South Mugirango, before they ordered me to disappear. They took away all my property and torched my house,’ See ‘Kenya, Caught Between a Rock and a Hard Place’, 2008. 62 Pinto, 2008.