KENYA: State failed to protect citizens during unrest - UN report

Kenyan authorities failed in their responsibility to protect citizens when violence erupted after disputed presidential elections in December 2007, according to the Office of the UN High Commissioner for Human Rights (OHCHR).

"The scale of the violence and destruction indicates the failure of the Kenyan State to protect its citizens’ right to life, security and property during these events," a report by an OHCHR fact-finding mission stated.

Released on 19 March, the report said the state should have taken measures to prevent unrest given that outbreaks of violence had already been witnessed in some areas in the run-up to the elections, inflammatory messages and threats had been circulated, and militia groups apparently organised before the polls.

However, government officials told the OHCHR team that outbreaks of violence of that magnitude had not been foreseen and the state was thus caught unprepared.

Parts of Rift Valley Province, which bore the brunt of the violence and forced displacement, also had a history of election-related violence, according to the report, prepared after a visit by the mission to Kenya between 6 and 28 February.

It is estimated that 1,200 persons died, many more were injured and over 300,000 were displaced during the violence. Some 42,000 houses and many more businesses were either destroyed or looted.

The report is highly critical of the police for using excessive, sometimes unjustified, force against demonstrators.

"Credible evidence suggests that there was a consistent pattern of police using firearms and live ammunition to respond to demonstrations and related violence in Kibera [Nairobi], Eldoret and Kisumu and that the police failed to abide by the principle of proportionality and of necessity," the OHCHR team said in the report.

While politics was the main trigger for the unrest, other underlying issues that exacerbated the violence existed.

"According to most of those interviewed, 'historical injustices', mostly linked to land but also to real or perceived discrimination in access to job and other financial opportunities, were behind most of the expressions of inter-ethnic violence, especially in the Rift Valley.

"Those 'injustices' must be more thoroughly clarified and addressed to avoid that they be turned into divisive populist messages," the report stated.

Factors fuelling the violence included poverty and disenfranchisement, according to the report.

Most of the violence followed the declaration by the electoral commission on 30 December that incumbent President Mwai Kibaki had won the poll against opposition challenger Raila Odinga. Odinga's party immediately protested that the election had been rigged in favour of Kibaki.

Initial victims of the violence were mainly members of communities perceived to have supported Kibaki in the opposition strongholds of western Kenya. Reprisal attacks occurred against members of ethnic groups seen as opposition sympathisers in the central region where Kibaki drew most votes.

"Many individuals and organisations that met with the OHCHR Mission stressed the direct relationship between long-term violations of economic and social rights and the violent reactions to the flawed electoral process," OHCHR noted.
The legacy of a culture of impunity for organisers and perpetrators of past abuses was also identified in the report as having contributed to fostering the resurgence and persistence of violence and conflict in the country.
 
Calm has returned to most areas since a political agreement providing for a coalition government was signed between Kibaki's Party of National Unity and Odinga's Orange Democratic Movement.

The hundreds of thousands of people uprooted from their homes, however, remain in displaced persons camps around the country.

Political settlement

The political settlement, mediated by a team headed by former UN Secretary-General Kofi Annan, envisages the establishment of a Truth, Justice and Reconciliation Commission (TJRC) through an act of parliament.

OHCHR said there should not be any recommendation under the TJRC process for the granting of amnesty to anyone suspected to have committed gross violations of human rights.

"The United Nations rejects such amnesties and is therefore unable to provide support to institutions and mechanisms recommending or granting amnesties for gross human rights violations," the OHCHR report said.

Kenya's Internal Security Minister George Saitoti, has, however, said there would be no amnesty for anyone suspected of taking part in acts of violence.

"Anyone who killed a Kenyan, looted or burnt property has to face trial. To think of amnesty is to go against the constitution, which guarantees security and protection to all Kenyans," Saitoti told reporters on 18 March.

The fact-finding mission identified three patterns of the violence - spontaneous, organised and retaliatory.

Full report: www.ohchr.org