Guest article by Kamau Ngugi and Yvonne Owino-Wamari, National Coalition of Human Rights Defenders - Kenya
The history of Kenyan democracy
In a democracy, the authority of the government derives solely from the consent of the governed and is realised by holding free and fair elections. But from 1969, Kenya was a de facto one-party state and in June 1982, the National Assembly of Kenya passed Article 2A of the Constitution of Kenya, officially declaring Kenya a de jure one-party state. This saw the consolidation of power within the ruling party, and opposition leaders and citizens at large were unable to speak freely, assemble, or move around the country to offer alternative voices, speak their criticisms of the government openly and bring alternative policies and candidates to voters. State-sponsored repression that included arbitrary arrests, detention without trial, prolonged trials arising from trumped-up charges, torture and other human rights violations were meted out on citizens, the academic community, journalists and politicians who expressed dissenting opinions or were perceived to be doing so by state agents.
Between 1982 and 1992, political leaders and human rights defenders (HRDs) in Kenya came together, amid serious repression, to champion multi-partyism, demanding democratic elections that would meet the threshold of being competitive, periodic, inclusive and definitive, and would thus give power back to citizens who would enjoy broad freedom to criticise the government, publish their criticisms and present alternative views. These efforts were met with resistance and those at the forefront experienced arbitrary arrest, incommunicado detention, enforced disappearance, threats and harassment.
The efforts of the reformers, as they were popularly known, won the support of foreign missions, primarily from western states, and bilateral and multilateral donors, which demanded that the Kenyan government should embrace democracy with all its tenets of good governance, accountability and transparency as well as respect for human rights as a condition for aid. Faced with protests, boycotts and international pressure, the government caved in, albeit reluctantly, to the demands for political pluralism, which was restored in 1992 with the repeal of Article 2A.
It should be recalled that the repeal of Article 2A to allow for multiparty politics was not complemented by other legal and institutional reforms to enable a thriving democracy. This was compounded by state efforts to scuttle the conduct of free and fair elections by persistent state-orchestrated inter-ethnic hatred that translated into political and ethnic clashes that took place in 1992 and in every election period since the introduction of multiparty democracy in Kenya.
Violations during elections and civil society responses
The climax of simmering ethnic tensions was the eruption of violence following the 2007 general elections that plunged Kenya into political, economic and humanitarian crisis. The conflict saw serious human rights violations committed in a context where over 600,000 Kenyans were internally displaced and close to 2,000 people were killed. The stalemate between rival presidential candidates Raila Odinga and Mwai Kibaki was resolved in February 2008 following the negotiation and signing of the National Peace Accord and the subsequent enactment of the National Peace Accord and Reconciliation Act. Among the agenda items this laid out was the need for a new constitution, which was drafted and promulgated after a referendum in 2010.
Civil society organisations (CSOs) and HRDs in Kenya once again played a critical role in the documentation of human rights violations, championing justice for the victims and accountability for perpetrators. The documentation of human rights violations by HRDs was particularly critical in laying the foundation for the investigation of the 2007 election violations by the International Criminal Court (ICC) and subsequent prosecution of six individuals believed to have been most responsible. The role of CSOs and HRDs in documenting violations has ever since put them in the crosshairs of the political elite, who have targeted individual HRDs with threats, harassment and intimidation, and have aimed negative rhetoric at CSOs with the aim of denting their credibility in society. There is also an attack on the media and journalists, despite the constitutional protection of media freedom and media independence.
Faced with a state increasingly intolerant of the demands made by critical media and CSOs for accountability, integrity and good governance, CSOs have developed survival measures that have included collaboration and joint actions. Kenyans for Peace with Truth and Justice, for example, was created after the events of 2007 as a collective of CSOs committed to accountability and justice for victims of post-electoral violence. The National Coalition of Human Rights Defenders - Kenya (NCHRD-K) was also established as a platform for HRDs to respond to the risks they and their organisations face and work towards expanded space for civic engagement.
During the election period, NCHRD-K was preoccupied with the safety of HRDs and election monitors, as their work has increasingly been criminalised. The instigation of early warning systems and training for networks of HRDs and CSOs were among measures put in place to mitigate personal risks against HRDs and CSO personnel.
Ongoing repression and the 2017 elections
The reality of state repression against CSOs and HRDs in Kenya is well documented. Attempts by CSOs to challenge the validity of the candidatures of Uhuru Kenyatta and William Ruto to stand as president and running mate in 2013, while they were under investigation and indeed indicted by the ICC for crimes against humanity, as prohibited by chapter 6 of the constitution on leadership and integrity, were unsuccessful. The High Court ruled against the petitioners - the Kenya Human Rights Commission and the Kenyan Section of the International Commission of Jurists - and ordered that they bear the costs of the suit, amounting to over 100 million Kenyan shillings (approx. US$1 million), despite the case being a matter of public interest. Further, organisations deemed critical of the government, including the Africa Centre for Open Governance, were negatively profiled, branded as supporters of the opposition and accused of advancing the agenda of their western masters. This negative rhetoric has been propagated for years and has created a volatile environment for HRDs and CSOs to operate in.
The relationship between the state and CSOs has soured and the state has implemented measures that have steadily shrunk civic space. Numerous attempts were made to amend the 2013 Public Benefits Organizations (PBO) Act before its operationalisation to include provisions that were repressive to the work of CSOs. These were coupled with ongoing targeting of individuals and organisations, malicious prosecutions, deregistration of CSOs and eventual transfer of government responsibility for civil society from the Ministry of Devolution and Planning to the Ministry of Interior and Coordination of National Government.
This repressive environment set the stage for the 2017 elections, which again saw CSOs and HRDs take up their role as election and human rights monitors. Election monitors were deployed across Kenya by CSOs and CSO networks, including the Election Observation Group, Kura Yangu Sauti Yangu and NCHRD-K. Strategies that had been perfected over the years were put in place to document and report on human rights violations and electoral malpractices effectively.
Previous elections had set a precedent for the reprisals to be faced by HRDs and CSOs. It was therefore necessary to enhance the capacity of election monitors for effective monitoring and documentation as well as able management of their physical and digital security to ensure individual response to risks. In an effort to localise protection measures NCHRD-K created linkages between election monitors from various institutions, connecting them with each other and with service providers - doctors, lawyers and counsellors - at the county level. NCHRD-K also focused on establishing strong working relationships between HRDs and relevant state institutions concerned with election management to facilitate an efficient flow of information for timely reporting, remedy and urgent response.
In addition, NCHRD-K developed a secure mobile app, Mtetezi (Defender), to allow for effective and efficient communication. The app also has a panic button to trigger urgent response by NCHRD-K and its partners. Despite all these measures, monitors, observers, journalists and HRDs still faced threats and intimidation, arrests, negative profiling, physical attacks and the limitation of the freedom of association during the election period.
Despite these challenges and security concerns CSOs and HRDs do not relent in their struggle for democracy, accountability and good governance. CSOs and HRDs need to have a multifaceted approach to ensuring their safety and security. This should involve network formation and collaboration at county, national, regional and international levels to act as a deterrent as well as to mitigate against and respond to risks to HRDs. This will require buy-in from HRDs, CSOs and even selected state institutions - locally and from across the globe - which should come together to stand in solidarity with Kenyan HRDs and CSOs, in order to profile their situation and amplify their voices in the global arena.