The mandate of the Commission of Inquiry into Post-Election Violence (CIPEV) was to investigate the facts and circumstances surrounding the violence, the conduct of state security agencies in their handling of it, and to make recommendations concerning these and other matters.
The Report comprises 5 Parts. Part I of the Report is an Introduction which discusses the historical context of the violence; Part II is a narration of the violence province by province. Part III deals with four cross cutting issues: sexual violence, internally displaced persons, the media and the nature and impact of the violence. Part IV deals with acts and omissions of state security agencies and impunity; and Part V contains recommendations made with a view to the prevention of future reoccurrence of large scale violence; the investigation of alleged perpetrators; and how to tackle the culture of impunity that has become the hallmark of violence and other crimes in the country.
Sadly, violence has been a part of Kenya’s electoral processes since the restoration of multi party politics in 1991. However, the violence that shook Kenya after the 2007 general elections was unprecedented. It was by far the most deadly and the most destructive violence ever experienced in Kenya. Also, unlike previous cycles of election related violence, much of it followed, rather than preceded elections. The 2007-2008 post-election violence was also more widespread than in the past. It affected all but 2 provinces and was felt in both urban and rural parts of the country. Previously violence around election periods concentrated in a smaller number of districts mainly in Rift Valley, Western, and Coast Provinces.
As regards the conduct of state security agencies, they failed institutionally to anticipate, prepare for, and contain the violence. Often individual members of the state security agencies were also guilty of acts of violence and gross violations of the human rights of the citizens. In some ways the post-election violence resembled the ethnic clashes of the 1990s and was but an episode in a trend of institutionalization of violence in Kenya over the years. The fact that armed militias, most of whom developed as a result of the 1990s ethnic clashes, were never de-mobilized led to the ease with which political and business leaders reactivated them for the 2007 post-election violence.
Secondly, the increasing personalization of power around the presidency continues to be a factor in facilitating election related violence. The widespread belief that the presidency brings advantages for the President’s ethnic group makes communities willing to exert violence to attain and keep power. Inequalities and economic marginalization, often viewed in ethno-geographic terms, were also very much at play in the post-election violence in places like the slum areas of Nairobi.
One of the main findings of the Commission’s investigations is that the postelection violence was spontaneous in some geographic areas and a result of planning and organization in other areas, often with the involvement of politicians and business leaders. Some areas witnessed a combination of the two forms of violence, where what started as a spontaneous violent reaction to the perceived rigging of elections later evolved into well organized and coordinated attacks on members of ethnic groups associated with the incumbent president or the PNU party. This happened where there was an expectation that violence was inevitable whatever the results of the elections.
The report concludes that the post-election violence was more than a mere juxtaposition of citizens-to-citizens opportunistic assaults. These were systematic attacks on Kenyans based on their ethnicity and their political leanings. Attackers organized along ethnic lines, assembled considerable logistical means and traveled long distances to burn houses, maim, kill and sexually assault their occupants because these were of particular ethnic groups and political persuasion. Guilty by association was the guiding force behind deadly “revenge” attacks, with victims being identified not for what they did but for their ethnic association to other perpetrators. This free-for-all was made possible by the lawlessness stemming from an apparent collapse of state institutions and security forces.
In general, the police were overwhelmed by the massive numbers of the attackers and the relatively effective coordination of the attacks. However, in most parts of the country affected by the violence, failure on the part of the Kenya Police and the Provincial Administration to act on intelligence and other early warning signs contributed to the escalation of the violence.
The post-election violence is also the story of lack of preparedness of, and poor coordination among, different state security agencies. While the National Security Intelligence Service seemed to possess actionable intelligence on the likelihood of violence in many parts of the country, it was not clear whether and through which channel such intelligence was shared with operational security agencies. The effectiveness of the Kenya Police Service and the Administration Police was also negatively affected by the lack of clear policing operational procedures and by political expediency’s adverse impact on their policing priorities.
The report recommends concrete measures to improve performance and accountability of state security agencies and coordination within the state security mechanism, including strengthening joint operational preparedness arrangements; developing comprehensive operational review processes; merging the two police agencies; and establishing an Independent Police Complaints Authority.
To break the cycle of impunity which is at the heart of the post-election violence, the report recommends the creation of a special tribunal with the mandate to prosecute crimes committed as a result of post-election violence. The tribunal will have an international component in the form of the presence of non-Kenyans on the senior investigations and prosecution staff.
This chapter contains the Commission’s recommendations that relate to the State Security Agencies and to issues of impunity. The discussion, findings and conclusions that the recommendations are based upon are fully laid out in the preceding chapters.
In accordance with the established Terms of Reference regarding recommendations for measures to eradicate impunity, legal and administrative measures and following an investigation into the actions and omissions of the State Security Agencies, the Commission makes the recommends appearing below. These recommendations should be implemented under the auspices of the Panel of Eminent African Personalities acting in consultation with the President and the Prime Minister of Kenya, with the full co-operation of Parliament, the Judiciary and the office of the Attorney General as more specifically described below.
1. A special tribunal, to be known as the Special Tribunal for Kenya be set up as a court that will sit within the territorial boundaries of the Republic of Kenya and seek accountability against persons bearing the greatest responsibility for crimes, particularly crimes against humanity, relating to the 2007 General Elections in Kenya. The Special Tribunal shall achieve this through the investigation, prosecution and adjudication of such crimes.
2. The Special Tribunal shall apply Kenyan law and also the International Crimes Bill, once this is enacted, and shall have Kenyan and international judges, as well as Kenyan and international staff to be appointed as provided hereunder.
3. In order to fully give effect to the establishment of the Special Tribunal, an agreement for its establishment shall be signed by representatives of the parties to the Agreement on National Accord and Reconciliation within 60 days of the presentation of the Report of the Commission of Inquiry into the Post-Election Violence to the Panel of Eminent African Personalities, or the Panel’s representative. A statute (to be known as “the Statute for the Special Tribunal”) shall be enacted into law and come into force within a further 45 days after the signing of the agreement.
4. The date of commencement of the functioning of the Special Tribunal shall be determined by the President, in consultation with the Prime Minister, the Chief Justice, the Minister for Justice, National Cohesion and Constitutional Affairs and the Attorney-General, within 30 days after the giving of Presidential Assent to the Bill enacting the Statute.
5. If either an agreement for the establishment of the Special Tribunal is not signed, or the Statute for the Special Tribunal fails to be enacted, or the Special Tribunal fails to commence functioning as contemplated above, or having commenced operating its purposes are subverted, a list containing names of and relevant information on those suspected to bear the greatest responsibility for crimes falling within the jurisdiction of the proposed Special Tribunal shall be forwarded to the Special Prosecutor of the International Criminal Court. The Special Prosecutor shall be requested to analyze the seriousness of the information received with a view to proceeding with an investigation and prosecuting such suspected persons.
6. The Bill establishing the Special Tribunal shall ensure that the Special Tribunal is insulated against objections on constitutionality and to that end, it shall be anchored in the Constitution of Kenya.
7. The Bill establishing the Special Tribunal shall provide that the Special Tribunal shall consist of four organs: the Chambers (including an Appeals Chamber) and the Prosecutor, which shall be independent of each other, the Registry, and the Defence Office.
8. The Bill establishing the Tribunal shall provide that Chambers shall be composed of 6 independent judges, three in the Trial Chamber, and three in the Appeals Chamber. The Presiding Judge of each Chamber shall be a Kenyan while the other two judges in each chamber shall be non-Kenyan and drawn from member states of the Commonwealth.
9. The Bill establishing the Special Tribunal shall provide for the following procedure for the appointment of the judges for each chamber and the Prosecutor of the Special Tribunal:
i. The President shall appoint the Chair of the Trial Chamber in consultation with the Prime Minister, both acting on the advice of the Chief Justice, from among persons qualified to be appointed judge of the High Court of Kenya.
ii. The Panel of Eminent African Personalities shall identify the other two members who will be appointed by the President, in consultation with the Prime Minister, from among persons qualified to serve as judge of a superior court of record in any part of the Commonwealth.
iii. The same procedure shall be applied for the appointment of the Chair and members of the Appeals Chamber.
iv. The Prosecutor of the Tribunal shall be appointed by the President in consultation with the Prime Minister from among persons qualified to serve as judge in a superior court of record in any part of the Commonwealth, from a list provided by the Panel of Eminent African Personalities.
10. The Bill establishing the Special Tribunal shall further provide for:
i. The jurisdiction of the Tribunal which shall include the jurisdiction to adjudicate over the criminal cases brought against persons bearing greatest responsibility for serious crimes, particularly crimes against humanity, related to the 2007 post election violence.
ii. The right of appeal from the decisions of the Trial Chamber to the Appeals Chamber of the Special Tribunal.
iii. The ouster of the Jurisdiction of ordinary courts from the in relation to the proceedings of the Special Tribunal.
12. The Bill establishing the Tribunal shall provide for sufficient authority and independence to the Special Tribunal to conduct investigations and shall in particular provide that:
• The Special Tribunal shall have authority to recruit and control its own staff, including such staff, working under the Prosecutor, as will be necessary to conduct prosecutions;
• The head of investigations and not less than three other members of the investigation team shall be non-Kenyan so as to provide an independent approach to the investigation function of the Tribunal.
• The investigations team shall report to and work under the general direction of the Prosecutor.
13. The Special Tribunal shall take custody of all investigative material and witness statements and testimony collected and recorded by this Commission.
The Commission makes the following further recommendations:
1. The International Crimes Bill 2008 be fast-tracked for enactment by Parliament to facilitate investigation and prosecution of crimes against humanity.
2. The Witness Protection Act 2008 be fully utilized in the protection of all witnesses who will need such protection in the course of investigation, prosecution and adjudication of PEV cases.
3. The Freedom of Information Bill be enacted forthwith to enable state and non-state actors to have full access to information which may lead to arrest, detention and prosecution of persons responsible for gross violations.
4. All persons holding public office and public servants charged with criminal offences related to post-election violence be suspended from duty until the matter is fully adjudicated upon.
5. Upon conviction of any person charged with post-election violence offences of any nature, such persons shall be barred from holding any public office or contesting any electoral position.
In relation to overall operational and service delivery issues emanating from the 2007 elections period in Kenya
The development and application of the National Security Policy, as articulated in the Kenya National Dialogue and Reconciliation Agenda Item 4 and the First Medium Term Plan (2008-2012), be finalised as a matter of urgency, and The Conflict and Disaster Early Warning and Response systems, articulated in the First Medium Term Plan (2008-2012), are developed and implemented as a matter of priority, and
The State Security Agencies develop, under the oversight of the NSAC, joint operational preparedness arrangements (to be conducted at least once every two years) including desk top scenarios and full operational exercises to assist in their readiness for dealing with high level security and emergency situations, and
The joint security operational preparedness arrangements comprise all key participants including, in the case of elections, the ECK, the Ministry of Health, and the Ministry of State for Special Programmes (Disaster Management), and The NSAC take a greater leadership role in determining security priorities, focusing on preventive strategies and actions, and providing clear direction to State Security Agencies, and
The NSAC develop and implement security review arrangements to ensure that agencies’ performance in security events such as the PEV are assessed, lessons learned and appropriate improvements and modifications to standard operating procedures are completed, and
The NSAC immediately conduct a full review of the functionality of the committees that make up the KSIM to determine their relative performance during the Post Election Violence, and
Where improvements are identified they are implemented immediately, and
The results of the review are made public within 14 days of completion, and Immediate steps are taken to put in place independent oversight arrangements of the operation of the NSIS, and
The NSIS shall be required to report annually to parliament and the annual report to be made public.
Specific Recommendations for the Police
1. A comprehensive reform of the Kenya Police Service and Administration Police be undertaken. This reform shall be initiated immediately and shall:
a. Involve a complete audit of the current police management, structures, policies, practices and procedures.
b. Include extensive consultation with a wide variety of national and international stakeholders.
c. Undertake extensive and comprehensive public consultations d. Include an examination and consideration of applicable international law and best practices
e. Include a thorough examination, review and revision of all tactics, weapons and ‘Use of Force’ employed by the Kenyan Police.
f. Explore international capacity building possibilities for policing in general with a specific focus on criminal investigations, community based policing and information collection analysis and dissemination.
g. Include the creation of a modern Code of Conduct
h. Include a complete revision of the Police Act
i. Incorporate a review of issues relating to the ethnic and tribal balance and deployment within the Kenya Police Service.
j. Include an examination of the structures of the police including the Senior Executive
k. Include the establishment of a Police Services Commission for the Kenya Police.
l. Investigate and make recommendations relating to any other areas of policing and law enforcement that are, in the opinion of the Police Reform Group (PRG), relevant to the improvement of policing services in Kenya.
2. An ‘Independent Police Conduct Authority’ is established with the legislative powers and authority to investigate police conduct and provide civilian oversight. Establishment will be undertaken in the following way:
a. Enactment of an Independent Police Conduct Authority Act
b. Involve a complete review of the current police complaints and disciplinary processes within the Kenya Police Service.
c. Include an examination and consideration of applicable international law and best practices
d. Report directly to parliament through the Minister responsible
e. Work under the authority of its own Act and have sufficient powers to properly investigate all police conduct issues.
f. The ‘Authority’ is to be a person qualified to be a judge of the High Court Kenya
g. The ‘Authority’ is to have the power to investigate public complaints against police and ‘own motion’ conduct issues.
h. Legislation will require that some, more serious policing actions ‘must’ be reported to the Authority i.e. allegations of corruption, deaths in custody, serious injury and police related shootings.
i. Have the legislative power to make recommendations for change to policing policy, practices and procedures.
j. The ‘Authority’ is to have retrospective powers to deal with historical serious misconduct.
3. The Administration Police is integrated into the Kenya Police Service creating a single police entity. The integration shall:
a. Commence with the command, responsibility and accountability for every aspect of the Administration Police transferring to the Commissioner of Police with immediate effect.
b. Effectively uncouple policing from the Provincial Administration structure.
c. Enable a combined police organ to function in an unencumbered fashion exercising constabulary independence in performing its functions.
d. Ensure that all police services adopt an operational role independent of executive influence.
e. Ensure that a new and contemporary police entity is led by professional police officers.
4. All of the reforms articulated in the recommendations immediately above relating to the Police be initiated immediately and shall:
a. Be undertaken and completed by a panel of policing experts (Policing Reform Group - PRG) who will work completely independent of but alongside the Kenya Police Service and Administration Police.
b. Be comprised of a team of four experts including Kenyan and international specialists in transformational change, strategic auditing and policing.
c. Source the international experts from likeminded common law countries.
d. Have the PRG established and begin their work immediately with a mandated duration of 6 months.
e. Have the PRG report directly to the Minister of Justice
f. Furnish progress reports to the Government of Kenya and the African Union, regarding the conduct and findings of the PRG and to provide a final report within two (2) months of the end of the mandated period, unless otherwise agreed.
g. Ensure that the PRG identify, early in the process, appropriate ‘milestones’ or ‘check points’, at which time meaningful interim reports may also be generated.
h. Provide that the PRG be able to make interim and immediate recommendations for reform and change at any stage during the six months process.
Case Study #1450
Commission Witness 100 heard by the Commission “in camera” 12 August 2008
The witness is a 49 year old farmer and mother of 12 children of whom seven remain alive. She lives in Kisumu. This study demonstrates the desperate personal situation that some victims have found themselves in as a result of the PEV. There also seems little follow-up or contact with the victim on the part of authorities. Identifying material has been removed from the original statement. She told the Commission that,
“I have lived there throughout my married life. My neighbours were Luos and Kisiis, the majority of them being the Luos. Before the violence, we used to live well with our Kisii neighbours. We were good friends. Things changed during the voting. The Luos would say that all Kisiis will leave our Kisumu. On 29 December 2007, Luos were screaming and heading to town.
On 10 January, 2008, at around 8 am in the morning, my husband and I went to our shamba, in Nyamthoi. I wanted to get some vegetables for the family, and my husband had accompanied me there. At around 1 pm, my son came running to where we were. I asked her what he wanted. He told me that our house was on fire. My husband boarded his bicycle and left to check. My son and I walked home on foot. On arriving at my house, I found that everything had been burnt, but the house was still on fire. The fire began at the bedroom area. I found people trying to put the fire out using water. The fire was then at the roof and had started burning the iron sheet. I do not know who burnt my house and why.
I do not think is had anything to do with politics because none of my children were vying for the civic seats. I did not report to the police then because people were demonstrating in town and the police were shooting regardless whether or not you were on the wrong. The roads toward town were impassable. I however was able to report 7 June 2008. They police officers gave me an OB number. I also registered the number of things burnt in my house. The police have done nothing from the date when I reported till now.
On 15 January, 2008, I went to the same shamba, but this time I was alone. I went there to get vegetables for the family. It was about 11 am in the morning. As soon as I started plucking the vegetables, on turning I saw 5 men coming towards me. They were young men, dressed in trousers and vests. The conspicuous thing about them is that they had ‘rastas dreadlocks.’ They said to me ‘Ooh wewe ndio unasikia mzuri, unachuna mboga na sisi tunasikia mbaya…sasa tumepata- oh you are the person feeling good…you are still plucking vegetables when we are feeling bad.. now we have found you. They were speaking in Kiswahili. I was not able to tell their tribes because they were all speaking in Kiswahili, and they all had dreadlocks.
One of the men held me on the waist, lifted me and threw me on the ground. Another man tore my panties, and they started raping. One held my mouth so that I do not scream. I was trying to keep my legs together, but one man held one of my legs while another held my other leg and kept my legs apart. There were no houses nearby. They raped me in turns. All the men raped me. Once they were done with me, they headed to a bush that on the way to Nyalenda. The bushes are near a river, Nyamasaria.
I was not even able to pluck the vegetables that I had gone to cut. I just picked my basket and headed home. I was walking slowly. I was under a lot of pain; my hips were paining very much. I got to my house at around 4 pm. I told my husband, who was at home by then, of what had happened to me. I did not go to the hospital then because as I had started, the roads were impassable. I still haven’t gone to the hospital to seek medical advice. I fear that since I have taken long before going to the hospital, the people at the hospital may never understand my predicament. I also did not report this to the police. I still live in my burnt house and I fear that should it be very windy, the wind is going to blow off the roof. I have not been able to repair my house and when it rain, water get into my house.
My husband passed on 23 February 2008 at his place of work where he had been employed as a watchman. He was employed at the Wandiege Primary School. On the night of 23 February, 2008, my husband was attacked by unknown people, killed and placed in a classroom. His body was picked by the police officers from Kondele Police station on 24 February 2008. They still have not done any investigation to ascertain who killed my husband. I have been affected by post election violence. My life has changed since I was raped, my house was burnt and the death of my husband. I do not have a livelihood. My husband is dead and there is no income. I do not even know who will rebuild my house. I rely on people to help me. The clothes that my children wear, those that I wear, beddings have all come from people. Food has been a problem. I have to sell some vegetables to get some flour.”
Case Study #2
Commission Witness 86 heard by the Commission “in camera” 7 August 2008
This male witness is a 70 year old who gave evidence of multiple murderers killing seven members of his family, being evicted from his home, being currently an IDP and that at least one of the original perpetrators is now occupying his land.451 He reported a full account to the Police but there has only been partial follow-up. It appears that in spite of compelling evidence only one perpetrator has been charged with murder. Identifying material has been removed from the original statement. The witnesses recounted that,
“During the referendum campaigns of 2005, I was asked by my Kalenjin neighbours, where I would go if the Orange/No vote carried the day, because Majimbo would be implemented and I am not of their jimbo. I also asked them where they would go, because they are Keiyo and we were in Uasin Gishu. A councillor, while campaigning for the No vote, used to state that whether Banana/yes vote or Orange/No vote won, all Kikuyus must vacate the area. Having lived in the area since 1970, the local community used to invite me to their get-togethers. Previously, I was a senior headman. From 1982, I was a village elder of a sub-location, where a majority of the residents are Kalenjins followed by Kikuyus and Kisiis.
During the 2007 campaigns, the Kalenjin politicians used to make utterances that, “….you ‘kimirio’ or ‘bunyot’ (both meaning enemy) must leave the area whether Kibaki wins or loses in the General elections.” On the 27th of December, 2007, I and my family members woke up very early to go and vote. The Kalenjin PNU agents had been denied entry into the polling station and were not even allowed to vote, though the ODM agents were allowed into the polling stations. At about 6 am, the Kalenjins started voting and this was on until about 9 p.m. The Kalenjins were allowed to vote up to six times. Vote counting then continued throughout the evening, until the morning of 28th December, 2007. Tension started building up from the 28th and the 29th, and when a certain Councillor won, it exacerbated.
On the 30th of December, after a church service within my compound, I noticed that whereas ordinarily after the service the Kalenjins would join us in my home, on this day, they declined. We felt that all was not well. On the 31st of December, I was in my home with my wife, four sons, daughter and two grandchildren. At about 5 p.m., while we were discussing family matters in the compound, my neighbour visited us and told me that some youth wanted to cause violence, but that the elders were against it. He assured me that the elders would not allow the violence to take place and I was consoled.
I went and got charcoal from a neighbour and then and headed toward my house. When I got there, my wife informed me that there could be trouble, and further, that two people had visited us and told her that is the youth intending to cause violence came to our compound, she should scream and they would come to our rescue. At the time, my sons were in the men’s house. When I went outside, I saw about 40 armed youths at the end of my farm. The said armed youth were talking with two neighbours so I alerted my wife that there was trouble. The said armed youths ran into my compound screaming and my sons got out of their houses. I asked one of the attacking youth, why they were attacking us. I told him that is it was land they wanted, they should just let my family leave. All this time, they were shooting arrows at us and throwing stones, while they made sounds like dogs. He then replied that they wanted five heads from my compound.
My sons asked me to get back into the house, and my wife and I retreated to the bedroom where I continued pleading with the attackers through the window. The attackers had torched all the houses. While I was still at the window, I saw one of my sons being hit with a club on the chest, and he screamed. I called to him to get into the house. I got under a bed with my grandson. My wife also got under another the bed, but on the side facing the door. The attackers gained entry into the house by forcing the door open. They got hold of my grandsons whom they threw out of the door where they were murdered. My wife screamed, and the attackers pulled her out from under the bed and hit her on the head with a club before they slit her throat with a knife. Before they killed her, she was screaming, “brother, why are you attacking us?’ He replied telling her that the time for brotherhood was over and she had better pray.
While I was at the window pleading with them to allow us safe passage out of the village, I recognized 14 people who I knew to be amongst the attackers. Four of them killed members of my family including my wife, three sons, my daughter and two grandchildren. One carried petrol, one was and elder, one was the leader and carried a gun, one was a teacher and there were others. Only one has been arrested. One son escaped through the window and was pursued by the attackers for over two kilometres. My daughter-in-law who was also hiding under the bed with her daughter and another granddaughter, escaped after the attackers pursued my son and hid under some bushes near the fence. I also ran out of the burning house and hid under some bushes.
At about 10 p.m., I heard wailing as of a child, and on going to investigate, I found a grandson of mine ( 2 years), injured but still alive. I took him, and we went to hide in the bush. We stayed in the bush until the morning of 1st January, 2008, when I went to the Administration Police Post. There were a lot of people camping there already. Upon arrival at the camp, I fainted. I came to three hours thereafter. An Administration Police Officer took my grandson and cleaned and bandaged his wounds.
My neighbour led other neighbours in burying my family in a shallow grave, 3 days after the attack, with the assistance of the AP officer giving guard services. The AP officer advised that our security was not good and that we should move to St. Muge Secondary School in Subukia, where we moved to, on or about the 4th of January, 2008.
I know the details of the motor vehicles that were used to transport the armed youth from to my village. They are owned by a village resident. On the 7th of January, my son-in-law came and picked me up from the camp and took me home to Njambini. On the 28th of April, 2008, the bodies of my family were exhumed and we gave them a decent burial. It is my prayer that the perpetrators of these heinous crimes are brought to book. I have been informed that one of the perpetrators has started building a house on my parcel of land.
That is all I wish to say.”
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