KITUO CHA SHERIA BLOG

A Note on the Cycle of Electoral Violence & Police Brutality in Kenya

Abstract

 This paper is premised on illuminating the cyclic curse of electoral violence and police brutality. These dark clouds seem to engulfed periodic elections in Kenya. While electoral violence and police brutality are not mutually exclusive, in Kenya they appear to be two sides of a coin. This paper argues that the Constitution of Kenya 2010 and the new regime of governance seem to only have cured the symptoms and not the disease. The expectation was that the Ransley J. report would transform the police force into a police service as the legal system breed a culture of credible, accurate, free and fair elections, somethings that are still a mirage. Furthermore, ethnic politics, disregard and contempt of the law and an incumbent loyal police force only but inflame the situation. This paper therefore posits that there is need to re-look, review and implement the law even as there is a deliberate attempt to change the culture and training of police. This is however premised in ensuring that the electoral management body and its enabling laws are in consonance

Introduction

In Kenya, many people understand electoral violence and police brutality within the confines of 2007 post- election violence. This is attributed to its “full blown” nature. The 2007 PEV was a culmination of the unchecked pockets of electoral violence witnessed in 1992 and 1997. It was characterized by incidences of the police-acting for the incumbent-taking on its citizens, a period of lawlessness where innocent people were being robbed, their property destroyed and ethnic cleansing.  This period also brought to the fore ethnic militias such as the Mungiki. All these characteristics inevitably leading to massive deaths, distruction of property, fear and lawlessness. The Grand Coalition Government would later be formed with the agenda to inter alia reform the electoral system, the police, carry out land reforms and Constitutional reforms with the aimed at maintain peace and tranquility in Kenya. A decade later and Kenya still witness’s electoral violence and reports indicate that about fifty citizens and counting have lost their lives, millions of properties are lost and Kenya seems to be going back to 2007. Other than police violence and Ethnic based violence, there is the other form that takes place within political parties in nomination as well as in party politics often thought of as friendly fire. It is therefore perhaps time to deal with these issues but what is the magic and why does Kenya seem to be going in a cycle? This article unpacks these issues

Reasons for Electoral Violence in Kenya

In 2007 the eruption of violence was attributed to a number of issues. While Kenya and her leaders understand them, they are always forgotten as soon as it is convenient. This therefore makes general elections in Kenya a time for anxiety and fear. Elections in Kenya have slowly transformed from a time to democratically elect leaders to a time to fear for lives and property. While it is assumed that the majority of the population always travels to vote for the leadership at “home” there are many who choose to go for safety reasons. Election days in Kenya are “dangerous”. This is beside the fact that electoral violence and police brutality are a breach of the law. Article 1 gives the people of Kenya sovereign power, article 10 speaks to the national values, article 26 on the right to life, article 28 on human dignity, article 38 on the freedom of expression, article 37 on assembly picketing and petition. There is also a breach on article 40 and specifically article 81(e) and  article 243. There are also a number of Acts of parliament such as the Public order Act that come into play. Why electoral violence & police brutality in Kenya?

Firstly is the issue of culture.  Electoral violence is a culture that has been inculcated by the people and their leaders. Think of this in the light of election within a party or a county. How many times have you witnessed or heard of violence? There are politicians and followers who believe in the politics of violence. They attribute political power to the ability to fight and intimidate their opponents and voters. This culture can be traced as early as 1966 and is still alive. The Constitution of Kenya 2010 and the electoral offences Act are clearly against this however, a law that is never implemented may not help in controlling behavior.  As much as violent confrontation are a norm in Kenya politics, the electoral management body is yet to disqualify any candidate on this ground despite having full powers to do so. The culture of violence within the voters may also be discouraged and this may still be done through strict compliance of the law i.e. arresting and charging those who cause breach of peace and voter education which results to a sophisticated voter who may not engage in violence.

Secondly there is tribal politics. It has been argued that the lack of a national identity has created tribal constituency. These tribal constituencies always form foot soldiers for the tribal politicians. The “Us against them” always breeds hate which time metamophosized to violence. Kenyan politics documents the hatred between the Kikuyu and the Luo believed to have started at independence and fifty years on it still exist. Devolution of power and resources has also opened up electoral violence between regions and clans. How do we solve this? This is a humongous problem, it has made countries burn and fall. Other than inculcating a national culture and identity, equity equality and bringing people together is key

Thirdly, there is economic ground and productivity in a country. The last five decades of independence has seen a country that keeps plunging deeper into debts, has rampant government corruption, high rate of youth unemployment, high cost of living, poor health and education structures. Kenya seems not to be moving, the challenges today are almost similar to those at independence. These have the effect of  breeding a despite people who are ready to fight, if not to change things then to  bring it all down. The puzzle of youth unemployment and productivity is one that has been given a lot of lip service. Kenya needs to strategically take care of its youths and its people. Perhaps then, elections may be fought on issues and not though violence

Institutionalization is the other reason why there is electoral violence. As much as the Constitution 2010 is based on institutions, Kenya is still stuck in the error of manipulation of systems as well as a people who do not have faith in the ability of institutions. The IEBC for example is one institution that has made it a habit of being in the middle of controvacies. It behooves Kenyans and Kenya to work on the IEBC if violence is to be averted. Free, fair credible elections may change the culture of violence. IPOA and NCIC are also expected to get to work and delve into their constitutional mandate

Lastly is police brutality. This is as a result of keeping colonial mentality. It must not be lost on Kenyans that the initial police force was crafted by the colonial masters. For them the citizens were to be brutalized and had no rights. The Africans were slaves and therefore were to be treated as harsh as possible. Today for example the police- just like in the colonial days-ask and arrest people on the basis of having a Kipande. There is need to change this attitude. The police need to serve, protect and defend citizens. They need to create a relationship with citizens and this is a two-way traffic. Justice Ransley drafted a raft of measures to be taken to change things; Kenya may want to keep to this. Government institutions need to resist the idea of being political players, the reason for  a security of tenure is for the inspector general was to give them objectivity and  accountability.

The Constitution 2010 sets a standard to the police service.  They need to be objective, professional and act for the public good. The operational Acts of parliaments have also been drafted to change the operational and work ethics of the police. As if not enough, international  law and best  practices also give sufficient guidelines on how the police should relate with citizens.

Conclusion

The Constitution 2010 is a revolutionary document set on bedrock of human rights. The right to demonstrate, picket and petition should therefore be protected and valued as it is weighted against the other rights. The law contemplates a situation where both the police and the protestors act in mutual respect and work together to ensure that protestors are allowed to protest and none protestors are also free and protected.

By:

Ouma Kizito Ajuong’

Poet (poetic fountain), Lawyer, Advocate of the High Court of Kenya, LLB (Hon.) Kenyatta University, PGD in Legal Practice, KSL