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‘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.
2

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
3

[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, state-
controlled 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
4

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
5

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 post-
electoral 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
6

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’.
7

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
8

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 vote-
maximizing 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
9

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 re-
districting 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.
10

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
11

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.
12

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


13

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
14

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
15

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 wrong-
doing, 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
16

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

62
‘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).
17

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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1
Schumpeter, 1946, p. 269.
2
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.
24

36
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.

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