HRW – Human Rights Watch (Autor)
Human Rights Developments
The promised constitutional reform process, which could have brought greater democratization in Kenya, remained stalled as the government of President Daniel arap Moi continued to block progress. This left in place a deeply flawed political system with power concentrated in the presidency, insufficient checks on the executive branch, a lack of accountability for government officials, and the barring of independent parliamentary candidates in a political party environment fraught with infighting and divisions. The political crisis was paralleled by a marked deterioration in the economic situation, caused in large part by state mismanagement and corruption. The standard of living for the average Kenyan continued to drop, and the year was characterized by electricity rationing and water shortages in the capital Nairobi and other cities.
The modalities of the constitutional reform process remained unresolved. In the face of an opposition boycott, the ruling party controlled parliament pushed through President Moi's plan to control the outcome. A parliamentary committee of twenty-seven was created, composed of fourteen ruling party parliamentarians with the remaining thirteen from the combined opposition, to draft the constitutional reforms. In opposition to this, a civil society initiative, the Ufungamano group, led by the religious sector including the Catholic Church, the ProtestantNational Council of Churches of Kenya (NCCK), the Muslim Supreme Council of Kenya, and the Hindu Council of Kenya, appointed a set of commissioners to carry out a more broad-based consultative process. As of October 2000, neither set of commissioners had embarked on the task of gathering citizens' views on the substance of a new constitution.
Although the Ufungamano initiative slowed down President Moi's attempts to push through a new constitution of his own choice, there was no resolution by year's end. All sides were aware that the stakes were high. The outcome of this issue, which promised to grow in urgency with the national election's approach by 2002, would serve as a critical juncture in Kenya's history. The existing constitutional provisions did not permit President Moi to seek another term in office and if unchanged would bring to an end his tenure of over two decades.
High-ranking government and ruling party officials continued to use the state machinery to obstruct freedom of association and assembly for the opposition. Though many more political opposition gatherings were able to take place, police officers continued to interfere with and violently disperse participants in violation of the laws relating to public meetings. The use of state-sponsored and protected gangs to break up meetings and rallies of government critics continued. In October, President Moi banned countrywide rallies called by Muungano wa Mageuzi (Peoples Movement for Change), a coalition group of opposition and civil society organizations.
Complaints of police harassment, use of excessive force, torture, and deaths in custody were frequent. In October, a 127-page internal police report titled, "Report of the Committee on the State of Crime in Kenya 1997 to 1998," was leaked to the press. The report, the result of a two-year study conducted by a five-person police team to study problems in the police force, concluded that the police force was unable to address crime due to poor management, corruption, a break down in discipline and a disregard for rules.
The situation was no better in the prisons. The impunity of state agents was highlighted in August with the brutal clubbing to death by prison warders of six prisoners who were apprehended as they attempted to escape. The public outcry forced the government to announce that it would carry out an investigation into "dereliction of duty" by the prison authorities. The legal community continued to complain of corruption and political control in the judiciary, which has always been used by the government for political ends.
A wide array of independent and outspoken newspapers were able to publish relatively freely. But the biggest gains for freedom of expression in Kenya were made by the coming on line of several newly licensed independent television and FM radio stations (some of which had pending applications dating as far back as 1992). The growth of the independent broadcast sector resulted in a notable expansion in the airing of differing opinions, particularly on radio. These licences were, however, restricted principally to broadcasting in urban areas and rural broadcasting remained as restricted as before. Nor was this free expression without danger. The minister of home affairs threatened retaliation against the hard-hitting political satire group Reddykulus which appeared on the Nation TV station.
Hundreds of thousands of internally displaced persons remained unable to return after being driven from their homes in state-sponsored attacks since 1991 directed against members of ethnic groups perceived to support the political opposition. The authorities continued during the year to fail to provide adequate security to those who sought to return to their homes under assurances of safety, nor were land titles restored to those who were wrongfully deprived. Nor had the government held those responsible for the violence accountable. In 1999, a presidential Commission on the Ethnic Clashes wound up after eleven months of hearing evidence, including from Human Rights Watch, about the violence between 1991 and 1998. As of October 2000, the commission's findings had still not been released, though the completed report had been submitted to the president over a year before.
Defending Human Rights
A wide array of local human rights organizations were engaged in monitoring human rights in Kenya. Although these organizations were able to function, they periodically came under attack from the government for their work. The risk that human rights defenders faced was highlighted on August 24 when Father John Kaiser, a well-known human rights activist, was found dead by the side of the road shot in the head. The brutal murder was carried out at night by unidentified persons on the Naivasha Road, some fifty miles outside Nairobi. A Catholic parish priest in the Rift Valley area and a U.S. citizen, Kaiser had worked in Kenya for thirty-six years and had been an outspoken critic of state-sponsored "ethnic" violence and other rights violations. Most recently, he had brought attention to a case in which two girls had allegedly been raped by a local politician, and had helped furnish the evidence that the Federation of Women Lawyers in Kenya (FIDA) used to institute a private prosecution against Julius Sunkuli, minister of state in the office of the president. Following the murder of Kaiser, FIDA officials reported anonymous death threats over the telephone. In November 1999, the immigration department had refused to renew Kaiser's work permit, normally routine for foreign priests working in Kenya, until pressure was brought by the church and human rights groups which accused the government of trying to silence the priest. In 1999, the Law Society of Kenya had honored Kaiser with its annual human rights award. Kaiser was the fifth priest to have been killed since 1994 either by police or by unidentified gunmen. In none of these cases have the perpetrators been held accountable.
There were some hopeful efforts in 2000 to strengthen the weak mandate and capacity of the government's Human Rights Standing Committee. The Standing Committee, a marginal and largely ineffective body, was founded by the president in 1996 in response to donor pressure. By law, its members were appointed by the president, it reported only to him, action was decided by him, and only the president could remove its members. In 2000, after two years, the attorney general finalized a proposed bill to provide greater powers to the committee, including subpoena powers, financial autonomy through the parliament instead of the attorney-general's office, and security of tenure. In March 2000, a consultative workshop, funded by the United Nations Development Programme (UNDP), was held to discuss the draft National Commission on Human Rights Draft Bill with relevant representatives from government and civil society groups as well as the Office of the U.N. High Commissioner for Human Rights. The proposed law had not been passed by parliament as of October 2000.
The Role of the International Community
The international donor community remained almost exclusively concerned with corruption and economic reform issues at the expense of human rights concerns. As a result, the government continued to make great efforts to give the appearance of economic reform, but did little toward improving human rights. The year was dominated by the government's wooing of the international financial institutions for the resumption of lending which had been suspended in 1997.
Increased concern on the part of donors and the international financial institutions about Kenya's precarious and worsening economic situation prompted the World Bank and International Monetary Fund (IMF) to restore funding that had remained suspended for three years dueto concerns about corruption and "key governance criteria." In a momentous decision in July, the IMF pledged a U.S.$198 million three-year loan and the World Bank pledged a U.S.$150 million loan for budget support. The renewal of this assistance was strictly conditioned on stated reforms including audited public accounts, civil service retrenchment, strengthening of accountability institutions (namely the Kenya Anti-Corruption Authority and the Office of the Controller and Auditor-General), and the enactment of an Economic Crimes Bill and Code of Ethics for public servants. Notably absent were any conditions that would have required the government to address governance criteria such as respect for the rule of law and judicial independence. The government's lack of commitment to genuinely addressing rule of law issues was underscored in October when the draft Economic Crimes Bill (a requirement of the renewed funding) it issued contained provisions that allowed the government to selectively apply the law, allowing high-ranking government officials to evade prosecution on corruption charges.
As expected, the international financial institutions' decision cleared the way for aid from other countries and institutions that had been similarly withheld. One of the first to respond was the United Kingdom (U.K.), a traditional ally of President Moi, whose minister for international development Clare Short announced the immediate release of some U.S. $42 million (U.K. £30 million) in budget support for civil service reform. The European Union (E.U.) followed suit with U.S. $30 million for the power sector, and the African Development Bank pledged U.S. $50 million for infrastructure maintenance. It was also expected that the renewed IMF aid would allow Kenya to reschedule her debt payments and to push for a Consultative Group meeting for bilateral donors to make new pledges for project aid.
The approach of the international community-in considering corruption and economic reform measures as wholly distinct from good governance issues such as political accountability and other rights-fell short of addressing the key issue, absolute executive control, which was at the heart of Kenya's political crisis. The Dutch Government was the only government that remained firm about the link, reiterating that all bilateral development assistance to Kenya would end by 2002 due to "bad governance, human rights abuses, and impeded democratization."
Although human rights concerns remained on the U.S. agenda, trade and economic concerns as well as international terrorism tended to take precedence over human rights. As did other donors, the U.S. focused its attention on criticizing corruption. In 2000, U.S. development aid to Kenya totaled U.S.$34.95 million, including $5.85 million for political reform and democratization, $10.7 million for environmental issues, and $18.4 million for women's reproductive health and HIV/AIDS programs. Approximately two-thirds of this aid was allocated to program assistance directed almost entirely to nongovernmental organizations. Following the murder of Father John Kaiser, Federal Bureau of Investigations agents were sent to help the Kenyan police to investigate the case and Secretary of State Madeleine Albright pledged that the U.S. would follow the case closely.