On The Brink Of The Precipice: A Human Rights Account Of Kenya's Post-2007 Election Violence

Executive Summary

The Kenya National Commission on Human rights (KNCHR) is Kenya’s National Human Rights institution with statutory mandates to protect and promote the human rights of all individuals living in Kenya.

Following the post-election violence in Kenya after the 2007 General Election, we determined that it was incumbent on us, the National Commission, to undertake an investigation on the character and scope of the human rights violations which happened during the perpetration of violence particularly in the period between December 2007 and the end of February 2008. The overall aim of the investigation was to document the post-election violence to ensure that there would be a comprehensive record of the violations committed during that period as a basis for enabling redress of such violations.

The specific aims of the investigations were threefold. Our first aim was to assess treaty-founded human rights obligations of Kenya as a state as well as the obligations of various non-state actors whose actions or omissions contributed to the violations. In this respect, the investigation would Identify breached obligations and recommend appropriate remedies for victims; it would identify state failures in the immediate context of the violence and recommend measures to prevent future failures; identify the underlying causes of the violence and recommend measures to address them; and recommend accountability measures to effectively redress these violations and to deter future violations.

The second aim of the investigation was to analyse the criminal responsibility of alleged perpetrators within the frameworks of international criminal law and domestic criminal law, to enable us make appropriate recommendations to national and international authorities, including on determination ofculpability and enforcement of sanctions against perpetrators. Third, the investigation also aimed to make other general recommendations on governance issues that would, for example, enable Kenya to undertake an effective truth, justice and reconciliation process.

We framed this investigation in terms of Section 16 of our constitutive Act, the KNCHR Act. Pursuant to this Act, we may investigate, on our own motion or upon a complaint, any human rights violation -Section 16(a); we may recommend to Parliament effective measures to promote human rights, including provision of compensation to victims of violations of human rights or their families – Section 16(d); to ensure the Government complies with its human rights obligations – Section 16(f); and to cooperate with various institutions for the better promotion and protection of human rights – Section16(g).

The outputs of the investigation and documentation were:

1. Recommendations on accountability measures to effectively redress these violations and to deter future violations;
2. Analysis of the triggers of the post-election violence;
3. Comprehensive documentation of the events that took place and mapping of the patterns o fviolence wherever it occurred;
4. Names of perpetrators (state and non-state) alleged to have caused the violence;
5. Policy, legal and other recommendations.

To undertake the investigation effectively and expeditiously, we trained and then deployed teams of investigators to collect data from eight regions of Kenya, which were the principal theatres of the post-election violence. We then used this data to prepare the findings and recommendations set out in this report.

These investigations continues the work of the Commission in recent years to address impunity and promote political accountability. In 2005, the Commission monitored the referendum on a new constitution and reported on misuse of public resources in the campaigns and the use of incitement y political leaders. Similar findings emerged when the Commission monitored several by elections in 2006. The main thrust of the Commission’s involvement was based on concern towards the ethnic angle that politics in Kenya took particularly after the collapse of the NARC coalition. In a bit to expose legislators to the potential danger of negative ethnicity; the commission organised a visit to Rwanda for a number of members of parliament. Thereafter the commission together with other stakeholders developed a draft bill on hate speech. It also monitored and documented the 2007 election campaigns for incidents of hate speech and negative ethnicity. In its two reports “Behaving Badly” and “Still Behaving Badly” it documented and named individual politicians who were employing hate speech and questionable language in political campaigns. It also documented various text messages and emails circulated prior to the elections that were based on negative ethnicity. There is no doubt that failure by us as Kenyans to address the concerns raised by the National commission through these initiatives in part contributed to the post-election violence.

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