28 October 2008
Nairobi — It appears that where police used ammunition on the crowd, they did so indiscriminately and in many of the situations, the shooting was not preceded by any form of warning.
This conclusion is supported by the evidence of a significant number of witnesses who recounted that "suddenly the police...started shooting at the crowd", or "police suddenly arrived and started shooting at us."
The indiscriminate nature of the shooting is further demonstrated by the profile of the victims of the shooting, and the circumstances surrounding the shooting. One of these was a teenage girl shot while coming from a posho (maize) mill.
Two of the victims claim that they were shot in the vicinity of hospitals, where they had gone to see patients, and two others claim that they were caught in a cross fire between police and rioters.
In each of the cases provided by the Law Society, very serious allegations are made against the police which, if true, would constitute grave offences on the part of the police. These cases would need to be investigated independently.
Coordinated manner
The Sotik DC, in whose district violence began on December 28, informed the Commission that the reason for the violence was the delay in the announcement of the election results.
The Commission found this difficult to believe, as voting had taken place only the previous day.
The commencement of violence in Sotik so early and at any rate before the election results had become an issue, is indicative of the fact that there were reasons for the violence other than the delay in announcing the election results, or the announcement of an outcome that many people in South Rift believed to be incorrect and unjust.
The Commission considered the evidence which suggested that the attacks in the Kipkelion area were conducted in a highly coordinated manner.
As part of this, the question of the source of the petrol that was used to burn property in Kipkelion was of some interest to the Commission.
Large number
According to Gedow, allegations that a known person had transported petrol that was used to conduct arson were discounted by the investigations carried out by the police.
He, however, admitted that petrol was used but could not trace the particular station where it was bought, partly due to the large number of persons who participated in the burning.
The DC added that the possession of petrol at that time of the year (December 10 - 23) would pass as normal as there was a possibility of stocking of fuel by people for fear of possible shortage.
However, the Commission finds it difficult to believe that common people, most of whom ordinarily have no use for petrol, would need to stockpile the commodity as a contingency against possible shortages in the electioneering period.
The Commission wonders whether the widespread availability of petrol, which was then used in the burning of property in the area, could be a pointer to prior preparation.
As to the possibility of the violence having been planned, the DC denied knowledge by the District Intelligence Committee of impending violence, and that in any event, that was highly unlikely as it was largely a neighbour-against neighbour conflict.
According to Gedow, no evidence had come to the knowledge of the DSIC of any oath-taking before and after the elections.
However, the position of the provincial administration that the violence was not planned must be considered in the context of a number of other factors that came to the attention of the Commission.
By perpetrators
First, as discussed, the testimony referred to earlier that there was warning to victims by perpetrators of the violence before this was actually carried out. This fact is inconsistent with spontaneous violence and consistent with planning.
Second, a large number of people would appear to have known that there would be violence long before this happened, as the Commission was told by Borabu residents.
Third, it is the view of the Commission that the scale and extent of the violence is itself suggestive of planning.
Fourth, there is evidence of some form of training having taken place in preparation for violence.
Fifth, although the Commission was not able to establish the validity of the claim, there were allegations that some form of oath-taking also took place in preparation for the violence.
Sixth, there is evidence of at least one meeting to review the situation after the violence had subsided.
It is the view of the Commission, the Kipsigis were unhappy with the presence of the Kikuyu and the Kisii in their homeland in large numbers.
The tensions between the Kipsigis, on the one hand, and the Kisiis and Kikuyus, on the other, during the electioneering period resulted from this.
It is the view of the Commission that an aspect of the violence was spontaneous, and that the disaffection with the election results or the perceived illegitimacy of the process could have been as the cause of the violence.
The targeting of the Kikuyu and the Kisii during this initial violence was not only a backlash by the Kipsigis for the unjustified loss that they felt had been inflicted on them, but also an attempt to exact retribution against those in their neighbourhood who they felt contributed to that loss by voting in a manner inconsistent with their own voting patterns.
Further, the violence was a form of vicarious vengeance against those presiding over a political a system felt to have robbed the Kipsigis of an electoral victory.
As supporters of a political system that they believed had deeply wronged them, the Kisii and Kikuyu were targeted in the violence that the Kipsigis unleashed.
The targeting of government property and businesses owned by Kikuyu and Kisii was consistent with this feeling.
This phase of the violence was spontaneous, broke out immediately after the announcement of the results, was mainly opportunistic in nature, and found its greatest expression in urban areas.
However, it would be an oversimplification of the problem to say that the post-election violence in the south Rift was solely caused by dissatisfaction over the presidential results, much as this was an important problem.
Clearly, other factors were at work as well. As indicated by a discussion of the evidence the violence, initially spontaneous, increasingly showed signs of organisation, the longer it went on.
Deplorable behaviour
Further, in parts of Rift Valley, violence began on December 29, before the election results were announced. The Commission cannot therefore rule out that some of the violence was planned.
The reasons for this would not have been dissatisfaction over the election results.
It had to do with the interpretation of the "majimbo system" that some members of the Kalenjin community, the host community to a large number of other ethnic communities, had, which was that these other communities would be made to leave Rift Valley once the majimbo system was put in place.
Rising up in arms, in the context of the post-election violence, therefore was a self-driven imposition of this version of majimbo, through the forceful removal of people from places that were not considered to be their homeland.
As discussed elsewhere in this report, the Commission finds that there was deplorable behaviour on the part of the police in the country, including in Rift Valley, but the problems of the Kalenjin-dominated parts of Rift Valley were not limited to police misconduct.
These extended to citizen-on-citizen violence, which accounted for the bulk of the killings that happened in that part of the country.
One of the explanations to the conflict in South Rift is the competing claims over ethnic territory between the Kipsigis and Kisii.
The coincidence of this conflict with the electioneering process, however, suggests, that whatever the merits of the dispute, it is manipulated into becoming an electoral issue, and an excuse for violence.
Historical claims
The Commission did not receive sufficient information to determine the relative merits of these historical claims.
However, the Commission was struck by the lack of a formalised articulation of this dispute in any form other than through violence.
For example, the Commission did not receive evidence that there has been a process of political engagement by the leaders of the two communities that was aimed at discussing the existence of a border dispute and its possible resolution.
In the circumstances, the border dispute is an occasional problem, manifesting itself when the two communities have different points of view on a matter that is important to them like elections and then vanishing until the next season of disagreement.
The Commission does not have the confidence to make a finding that a legitimate border grievance exists between the two communities.
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