ABSTRACT
On 30th December 2007, following the announcement of the presidential election results in Kenya; violence broke out in several places across the country amidst claims that the electoral commission of Kenya (ECK) had rigged the presidential election. Sporadic eruptions continued for many weeks, bringing death and destmction to thousands of Kenyans. The general purpose of the study was to examine the contribution of the postelection violence to the growth of electoral democracy in Kenya and relate it to the rest of Africa. The objective of the study is to establish how the violence affected the growth of electoral democracy in Kenya, examine the constitutional and legal framework and identifies any weaknesses or inconsistencies in the electoral process, establish reformative areas of the electoral system to enhance democratic elections and to establish measures to eradicate impunity and promote electoral democracy in Kenya. In confonnity with scope of the study, the report examines the causes of post-election crisis in Kenya from independence to date and presents its findings and recommendations. The study establishes that violence has been a recurring feature in Kenyan elections since independence and that violence had previously been confined within tribal lines. The 2008 post-election violence in Kenya intimidated the right to vote, and be voted in any political office and the concept of free and fair elections was greatly impaired. The study also found out that majority of the electorate think that even if they participate in democratic elections, the outcome will be compromised as it was in the 2007 elections thus voter apathy is prevalent among the people especially those in the violence-stricken areas. The study recommends that since democracy is a practice, there is a need to implement the findings and recommendations addressed in the Commission of Inquiry into Post Election Violence in Kenya (CIPEV) and the Independent Review Commission (IREC). vii debated political transition in Kenya and succeeded in substituting British colonial rule with elected African leaders. In pre-colonial times, there was no centralized political system resembling states in the modem sense. Communities comprised small units' bound together by kinship and other fonns of affinity. They planned and pursued common activities guided by well established norms and customs. The clan was the central unit in most of these societies and was repository of community management and of conflict management and of conflict prevention and resolution. Leadership was based either on age and gender, with male elders forming local councils, or on hereditary, such as the Laibon system of the Maasai community. 1 From the time the ban on African political parties was lifted in 1960, Kenya has seesawed between single -patiysim and multi-patiysim until the ttiumph- so - far of de jure multi-patiysim in 1991. At the time of the elections in 2007, Kenya had undergone three other general elections since the restoration of multi party democracy in 1991. In addition to this, in 2005, Kenya saw a successful constitutional referendum that left the intemational community hailing Kenya as a country where electoral democracy had taken root and had been successfully established. The country became an African example where a president-backed draft constitution was defeated at the referendum by an opposition backed faction. As a result, the Electoral Commission of Kenya (ECK) as it then was declared the most effective electoral body in Sub-Saharan Africa. After the violence that rocked the countty on 30th December, 2007, following the atmouncement of the presidential election results an African Union-sponsored Panel of Eminent Personalities led by former United Nations Secretmy General Koffi Annan brokered a settlement which heralded a government of national unity between the main 1 Kenya Election 1997: Free and Fair? International Commission of Jurists (Kenya section), November 1997, p.6 2 Political parties and a common commitment to urgent constitutional reform. The settlement included the appointment of two commissions, one to examine the violence and the other to examine the December 2007 Kenyan elections from various perspectives. These two commissions were: The Commission of Inquiry into Post-election Violence2 (CIPEV) chaired by Justice Philip Waki and the Independent Review Commission3 (IREC) chaired by Judge Johann Kriegler, a retired South African Judge. CIPEV, famously known as the Waki Commission was mandated4 to investigate the post-election violence in Kenya and the surrounding events in the country as pati of efforts aimed at avetiing and preventing further wide scale conflicts in the country. The Commission was asked to establish the facts about how such grievous violence was conceived, planned and executed, to consider the failure to enforce existing mechanisms to prevent the violence and, recommend measures aimed at redressing the consequences of the violence and at preventing possible recurrence of such violence. The Commission was asked specifically to investigate the events after the introduction of multi party democracy in the country and the subsequent tribal clashes that preceded the 1992 and 1997 general elections and the events after the 2005 referendum. It was also directed to investigate the role, before, during and after the violence, of the Kenyan goverrnnent and its agencies, individual persons and non-goverrnnental organizations. The commission was also mandated to investigate what politicians and the govemment individually or collectively could have done to aveti the violence. The IREC, famously !mown as the Kriegler Commission, on the other hand was mandated to present, m confmmity with the terms and reference,5 its findings and recommendations, based on its analysis of the legal framework for the conduct of 2 The Kenya Gazette, Vol. CX-No. 41, Gazette Notice No. 4473, Nairobi, 23'' May, 2008 3 The Kenya Gazette, Vol. CX-No.23, Gazette Notice No.1982, Nairobi, 14"' March, 2008 "The Kenya Gazette, Vol. CX-No 41, Gazette Notice No. 4474, Nairobi, 23'' May, 2008 5 The Kenya Gazette, Vol. CX-No 23, Gazette Notice No. 1983, Nairobi, 14'" March, 2008 3 elections in Kenya, the structure, composition and management system of the Electoral commission of Kenya and 1ts organization and conduct of the 2007 electoral operations. Therefore looking at the violence that followed the 2007 presidential elections, we can arrive at a conclusion that such violence could have been averted if only measures had been taken to implement the legal framework on elections and punish previous perpetrators of this violence. It is possible to identify the key steps that led from the late pre-multiparty period to the violence a decade and a half later. There was nothing inexorable about this process. At its heart was the deliberate choice of successive elites to deepen the cleavages the country's main ethnic-backed political groups to dehumanize the others out of power, and to legitimize the use of violence to settle electoral disputes. In the process a culture of impunity gradually became entrenched. 1.2 STATEMENT OF THE PROBLEM In the recent past electoral democracy in Africa has been hit hard by problems associated with transition of political power. Following the aftennath of the 2007 presidential elections in Kenya huge concern was raised as to the viability of electoral institutions in the country. The post election crisis that followed baffled a number of researchers and humanity as a whole. Close to two thousand innocent people were barbarously butchered, over three hundred thousand others rendered homeless, countless women were raped and prope1iy worth millions was looted and destroyed. These acts were willingly and publicly perpetrated by other Kenyans shming the same country, the same .language and the same history with their victims. Faced by this reality, one may wonder how this could happen in the 2151 century, in a country combining all features of a state claiming to be governed by the rule of law and endowed with effective government. How could a country which had enjoyed a relatively smooth power transition in the past wake up to such politically instigated violence?
