The chairman of the Kenya National Commission on Human Rights, Maina Kiai, has been one of the country's leading independent voices since the beginning of the crisis sparked by Kenya's disputed presidential election of December 27.
Last week, Kiai was in Washington, DC, where he appeared before the Africa subcommittee of the United States House of Representatives. In a wide-ranging interview with Katy Gabel, Brian Kennedy and intern Katie Wyly of AllAfrica's Washington office, he discussed the human rights situation, the connection between violence and negotiations, and the need for a long-term solution. Excerpts:
The international media has largely described the current crisis as an ethnic conflict. Is this accurate?
What's going on in Kenya is a political crisis with ethnic expression. It's not an ethnic crisis. It's triggered by political issues. It's important in analyzing and reporting this that we get it right, because there is a sense oftentimes in Africa that our conflicts are ethnic, that they are raw, atavistic, primal things that happen. That people wake up and say, "I don't like that community – let me go and kill them."
The reasons for them [conflicts] are political. The reasons for them are that peaceful means for resolving our differences have been closed down, so people become violent and express that violence in an ethnic way because our politics is ethnic. That's very important to emphasize.
How important is it to find a solution quickly?
This issue will not go away quickly. It's a serious issue. It's a big crisis for Kenya. I need to emphasize that calm is not peace. To the international community especially: do not be fooled if there is calm. If we don't deal with this now, we will have it far worse when it blows up again, because it will blow up.
This crisis was not unforeseeable. In a meeting three years ago, we discussed this. There was a project in Kenya in 2000 by leading NGO thinkers and civil society that came up with a group of scenarios [for the elections] and this scenario was part of it – exactly what happened. If you don't deal with political crises, economic issues – we will come back to it.
We need to appreciate that the longer we delay, the worse it gets. In the one month of this crisis, we've had 1,000 people dead. Between 1992 and 1998, during the politically-instigated clashes, we had 3,000 dead. In that six-year period, we had 250,000 people internally displaced. That's the number we have now after one month.
If we keep things calm and we think it's gone without dealing with them, this thing will come back to haunt us in a real, serious way, and it will be worse than what we have seen now.
Recent reports indicate that that negotiations are making progress. What is your evaluation so far and what do you think is needed for them to succeed?
Now it seems like some progress was made - to get people to sit down was a good sign - but I think the denial of, or rejection if you wish of Cyril Ramaphosa [a South African constitutional negotiator], was not a good sign… [The] analysis so far is that the government wants to delay and delay the process as much as they can. The more time it takes, the worse it will be for us at the end of it all.
What is the relationship between the violence and the negotiations for a political settlement?
Well the violence seems to have cooled off generally speaking and that is my view a reaction to… giving the negotiations a chance to succeed. What we have seen through the process of the last month is the violence very much seems to be linked up to the negotiations. If there is progress or [people] think there's progress, [if there are] perceptions that maybe it is moving somewhere, you see a dying-down of violence.
Describe the violence, especially in the Rift Valley, since the election.
We have documented in a sense four different types of violence. One was the spontaneous violence following the result, which was anarchical - lots of deaths, lots of looting, rapes, and burning. That's gone, in a sense. But the second form is the militia activity, on both sides. First of all in the Rift Valley in Eldoret, and clearly linked to political reasons, and you are seeing that cooling off because there is a sense, let's give a chance to the mediation and the talks. And then there is the violence that came from the pro-government side, which had militias, and that is linked again to the government so we'll wait and see whether that is going to blow over. And the last one is self-defense units. So I think the violence seems [to have cooled], but we shouldn't assume that it has petered out or calmed down, [or] that calm is the same as peace. I think a lot will depend on the negotiations.
The images coming out of the Rift Valley in recent days remind a lot people of the 1990s, when the area experienced some terrible violence. How important are the clashes of the 1990s to the situation today?
The 1990s are important because that is when we first got violence in a coordinated manner that seemed to be ethnic but really was political. It was in fact instigated by the state, and it was instigated not on ethnic grounds but on political grounds. What we had in the 1990s was Daniel [arap] Moi as the head of state organizing, training and mobilizing his supporters – who are Kalenjin – against communities that were perceived to be in the opposition.
This violence is again political, where… communities in the Rift Valley feel that their vote did not count, that their vote was useless. [The say] 'We should not have gone to vote if we thought they were going to steal it.' …
One of the most upsetting parts of the crisis is the rise of sexual violence. Could you speak about that?
One of the saddest parts of any crisis – and this almost seems to be across the world without exception – is when there's anarchy, where there's a sense of confusion women suffer from sexual violence. Even now, there are also cases of gang rapes of men and boys. Sexual violence is used as a tool in conflicts. It has been like that, in a big way, across the board.
I do believe that rape is an issue of power rather than sex. This is something that is very disturbing, and because it's hidden, people are nervous. You don't see much of that being talked about. For a country like Kenya… where over the past three or four years the HIV rate has been going down… with victims unable to access the necessary medications in cases of rape within 72 hours, the chances of spreading HIV are increased.
We'll probably know the impact of this in a few months. But I think it's going to take us backwards in the fight against HIV/Aids.
The police have been accused of human rights violations since the election.
The police have always been a problem in Kenya…. because they're colonial police. They were structured by the colonial regime not to be a police force to fight crime, but to repress the population against standing up against the colonial government.
Within this context, we have seen parts of the police being used as militia. We have seen uneven implementation of police work. In some places they have acted as militia and shot people to death [and have] shot into crowds to kill in so-called crowd control, shooting live bullets. In some places they have stood by and watched people burning houses; in other places we have seen them negotiating with militia.
What has the government done about opening up space for public gatherings or demonstrations?
We argued, and we continue to argue, that once you close down peaceful, lawful means of expression, it is not surprising that illegal violent means open up. One way for the state and for the country to be able to address our issues peacefully is to allow those peaceful, non-violent spaces for us to express ourselves. That's the kind of pressure we want. We don't want violence as a pressure point. We want demonstrations as a pressure point. It's legal, it's part of our constitution, it's part of our laws, [and it's] part of human rights. There's nothing wrong with that. So we keep urging for that to happen.
The government has repeatedly called on the opposition to use the courts to protest the election. Is that a viable strategy for the opposition?
No. What this crisis has shown us is that the [current] constitution has outlived its purposes, [it] cannot handle our differences. Our constitution is not sufficient for dealing with the grievances and the issues. This is not a new thing; this is not a strange occurrence because this has been in the works for 20 years. People have been talking about a new constitutional order. But our current constitution is useless. It was made for the 19th century... In a place where the president appoints all judges alone, what stops him from getting his judges there?
So for us the court was never an option because the constitution has collapsed. We have to find a political solution to the political problems that can lead us to a better Kenya. This is our "Civil War moment" in a sense, like America had in 1861, and we would like to avoid the war part but get a new state that makes sense.
We are being confronted with the very survival of Kenya as we know it, and if we do the wrong thing, we will get into war. If we do the right thing, then maybe we'll become a much better Kenya, a much more democratic, a much more equitable society. This is a big moment for us - a constitutional moment. These things come once in a generation.
Many analysts and observers have described the government's position as an attempt to "run out the clock," that the government is hoping that this all will blow over. Can this strategy work?
I think that strategy assumes a number of things. It assumes that people are going to get tired, it does not understand the depth of grievances that exist, doesn't understand how deeply angry people are and how fed up they are with the current political arrangements that exists. So it won't work.
You can force calm, as Zimbabwe has got. Mugabe has forced calm, but there is no peace there. The Burmese generals have [calm] in Burma, but there is no peace in Burma. So you can force a calm, but you can't have peace unless you address some of the deep issues that are there. So I think the government is making a huge mistake in thinking that this will happen.
When you look back into history, one gets a sense that the government is operating on the 1969 template of Kenya, where there was the assassination of a popular leader, Tom Mboya, and people went on the streets and there was upheaval and instability for a month and then life went back to normal. Then in October 1969, a similar occurrence happened. There was a massacre in Kisumu - again instability for weeks and then back to normal.
But you have to understand that Kenya is no longer 1969. Kenyans are much better educated, they are much more aware. The globalization of media has helped us, there has been a lot of civic education. The freedom we have enjoyed since 2002 has made its mark on us and people now believe in freedoms. Its hard to put back into the can people who have been free. You can because we have seen it in Burma but at a very deep cost. So that's where I think the government is making a huge mistake.
What type of role should the international community play?
To help the government realize it is making a mistake, this is where the international community has to play a tremendous role. First, it must keep the issue alive. So we have been asking for the Security Council of the United Nations to take this up as a matter of urgency – for once to move away from discussing crises once they are fully blown to [adopting a] prevention approach. Prevention costs so much less than resolving a crisis that is fully blown.
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So the United Nations should take this up because it has regional peace and security elements. Kenya is the gateway to Somalia, to south Sudan, to Uganda, to the eastern DR Congo, to Rwanda. These are all societies with a strong history of violence and conflict. If they have economic collapse, what is going to happen to them in terms of violence and conflict? So preventative measures by the UN Security Council are important.
Second, visa bans - travel bans on the hardliners that are refusing to move forward – for them and their immediate families. Many of them have got kids in the United States, the United Kingdom. Bring them back. Many of them go shopping in London and Paris. Many of them have apartments in those places. So travel bans and also freezing assets of the hardliners. The hardliners are especially on the government side – [they are] political players, but also civil service players and business players, who have a lot of assets out there. So [we should find] creative ways of targeting sanctions at them so they understand that there is a cost to being a hardliner. We talk about military assistance being frozen. It's important that the military also starts putting pressure on the government to stop its hard line.
[We need] consistent international attention that will be sustained no matter what new crisis happens. They can't play the game Ethiopia or Nigeria [played] after the elections. It has just moved too far. And the impact of this crisis across Africa is tremendous. If Kenya can be forced to solve it peacefully and adequately, you will start seeing a revival again in Africa of elections and democracy and development and peaceful means of dealing with our issues rather than going to war.
What's the ideal solution to the political stalemate?
We ask for an interim transitional government made up of the two protagonists, Raila Odinga and Mwai Kibaki. They would have limited powers and a limited duration. They'd have a number of things that they have to do: initiate the process of reform – presidential powers, land reform, transitional justice, judicial reform, police reform, civil service reform – all these reforms can be done.
The solution is really a new constitutional order. Kenya must move from its old constitution – it's failed us. We've got to stop the winner-take-all system and the first-past-the-post, zero-sum game that is politics in Kenya [and turn it into] something that appreciates the divisions and divides we have in the country. Therefore, through some sort of proportional representation, depending on the kind of votes you get, we will have a government that is more led through consensus than by force. Then we can get back to the business of economics and development as we need to.
We have got to stop band-aid solutions to deep problems. We have to deal with the political problems.
