Restoration of Multiparty Government and Kenyans of Somali Origin

 

1.   INTRODUCTION

In the wake of the upheavals in Eastern Europe, the winds of democracy are sweeping over many African countries. The Republic of Kenya, which became a one-party State in 1982, is no exception. In December 1991, President Daniel Arap Moi allowed for the restoration of multiparty government by repealing article 2A of the Constitution, which made the Kenya African National Union (KANU) the only authorized political party (KTN Television 10 Dec. 1991).

The transition to a multiparty system is not entirely smooth. Many political parties have been authorized (Africa Events Feb. 1992). Furthermore, President Arap Moi has dissolved Parliament and promised to hold elections soon (AFP 3 Jan. 1992). Nevertheless, the government is still harassing opponents and is slow to release political prisoners (AFP 23 Jan. 1992; BBC Summary 22 Jan. 1992a), to establish an electoral commission and to allow foreign observers into the country (BBC Summary 3 Feb. 1992).

Kenya would thus appear to be taking timid steps along the road to democracy. However, as indicated by the recent police brutality during pro-democracy demonstrations in Nairobi (The Christian Science Monitor 9 Mar. 1992) and the ban on such assemblies by President Arap Moi, who has cited the increase in tribal violence as a justification for their prohibition (Ibid. 23 Mar. 1992), the process of democratization will most likely be slow. Several months must pass before its effects on the human rights situation can be assessed. A brief background review, following, will allow for a clearer understanding of the present situation.

2.                KENYA BEFORE THE RESTORATION OF MULTIPARTY GOVERNMENT

Ethnic rivalries played an important role in Kenya's conversion to a one-party State. When the country gained independence in 1963, KANU leader Jomo Kenyatta, a member of the Kikuyu ethnic group, became the new republic's first president. The Kikuyus became a dominant presence within the public administration and the armed forces during his presidency (Legum 1984, B154). In 1969, following a wave of demonstrations triggered by the assassination of Tom Mboya, one of the leaders of the Luo ethnic group, Kenyatta banned the only opposition party then in existence, the Kenya People's Union (KPU). All of its leaders were arrested, including the party leader, Oginga Odinga, who spent fifteen months in prison (Africa South of the Sahara 1990 1990, 561-562).

In 1978, following the death of Jomo Kenyatta, Kenya's Vice-President Daniel Arap Moi became President. He promised to follow in the nyayos (footsteps) of Kenyatta and attack the problems created by tribalism, corruption and unemployment among young people (Legum 1984, B154). The ethnic group to which President Moi belongs, however, the Kalenjins, gradually took over the key posts in public administration (Africa Confidential 26 Oct. 1990). In June 1982, students and a number of politicians were imprisoned for attempting to set up an opposition party. They became the first political prisoners held in Kenya since independence. Following this incident, President Moi passed an amendment to the Constitution which made KANU the only party permitted in Kenya (Africa Watch July 1991, 10). Two months later, the government suppressed an attempted coup (Ibid.).

Over the years that followed, many human right rights violataions tarnished the reputation of Kenya, which had long been considered a haven of peace and stability. Hundreds of Kenyans are estimated to have been arrested and convicted for political reasons since March 1986 (Andreassen and Eide 1988, 51-52). Throughout those years, the government ignored protests from human rights organizations. President Moi called Amnesty International's report on human rights in Kenya published in July 1987 a "wave of anti-Kenya propaganda" (The New York Times 16 Sept. 1987, A7).

The worst wave of repression since the 1982 coup attempt, however, occurred in 1990, following a series of demonstrations which called for a return to democracy (the "Saba Saba"), and which were organized by Kenneth Matiba and Charles Rubia (Africa Watch July 1991, 61). In September 1991, some members of Parliament threatened to expel all supporters of multipartyism from the capital and put forward a resolution making Arap Moi president for life (AFP 29 Sept. 1991).

3. CURRENT HUMAN RIGHTS SITUATION

3.0         General

The prohibition of political opposition parties has given rise over the past twenty years to many human rights violations.

3.1           Legal Guarantees

According to the Africa Watch report entitled Kenya: Taking Liberties, Kenya's judicial system is based on the British model and has three main levels: the Court of Appeals, the High Court and magistrates' courts (Africa Watch July 1991, 145). There is also a tribunal responsible for enforcing Muslim law, the Kadhi's Court (Kurian 1987, 1050).

The Africa Watch report notes that it is the judicial system's dependence on the executive power which underlies the current human rights crisis in Kenya (Africa Watch July 1991, 145). From 1982 until the end of 1991, the legal profession (judges and lawyers), on which the primacy of law rests, was put under great pressure in a country where the state and the party were one (Andreassen and Eide 1988, 48). Furthermore, the job security of the attorney general and auditor general of Kenya was threatened, as they were liable to be dismissed if their judgment went counter to the directives issued by the party in power (Ibid.).

According to the Constitiution of Kenya, anyone who is arrested must appear in court within twenty-four hours of the arrest. A constitutional amendment was passed in 1988 to extend the period of detention from 24 hours to a maximum of 14 days (Country Reports 1988 1989, 157). In practice, however, these guarantees are not respected. In 1966, the government passed the Preservation of Public Security Act, which enabled it to detain any potential opponent for an indefinite period without charges or trial (Howard 1986, 154-155).

3.2      Arbitrary Arrest and Detention

The introduction of a multiparty system in Kenya did not automatically end arbitrary arrest and detention. Academics and several leaders of the Forum for the Restoration of Democracy (FORD) were arrested in 1992 for "propagating unfounded rumours" about a possible military coup against the regime (BBC Summary 22 Jan. 1992b). Requests by the International Commission of Jurists were fulfilled, however, for in February 1992, four dissidents sentenced to seven years in prison for "sedition" were released (AFP 15 Feb. 1992).

The first series of arrests of opponents of the regime dates back to 1982. Members of Parliament, a lawyer and prominent academics were officially detained under the Preservation of Public Security Act (Amnesty International July 1987, 3). They were later charged with possession of seditious anti-government literature (Ibid.).

In the middle 1980s, Kikuyu politicians and members of other ethnic groups and their sympathizers who had been excluded from power by President Arap Moi's Kalenjin elite were in turn arrested and interrogated (Human Rights Watch 1992, 60). Early in 1987, at least a 100 people were apprehended during the repression of the Mwakenya movement, which had been founded by various opposition groups. Several of them received harsh prison sentences (Africa South of the Sahara 1990 1991, 563-564). In July of the same year, an Amnesty International report criticized Kenyan authorities for seeking to muzzle the opposition by illegal detention and torture (Ibid., 564).

In January 1990, intellectuals, church workers and lawyers reopened the debate on multiparty government in the wake of the upheavals in Eastern Europe (Africa Watch July 1991, 37). On 6 July 1991, former Cabinet ministers Charles Rubia and Kenneth Matiba and some of their supporters were arrested on the eve of a mass rally calling for a return to democracy (Ibid., 61). At least 1,000 people were arrested at the rally next day. Several were sentenced to two or even three years in prison (Ibid., 65).

In 1991, however, most institutions of higher education were closed following student demonstrations, and several leaders were imprisoned (AFP 27 Sept. 1991; AFP 1 Oct. 1991). Several organizers of the 16 November 1991 demonstration, prohibited by President Moi, were arrested and accused of violating public order (Human Rights Watch 1991, 56-57).

3.3               Freedom of Expression

Articles 79 and 80 of the Kenyan Constitution guarantee its citizens freedom of expression and association. However, although freedom of the press exists in principle, radio and television broadcasting remains a state monopoly (Andreassen and Eide 1988, 57). In 1991, Gitobu Imanyara, editor of the Nairobi Law Monthly, and Njehu Gatabaki, editor of Finance, as well as journalists Paul Amina, Macharia Gaitho and Julius Bargorett, were harassed, arrested or beaten for promoting multipartyism in their writings (Human Rights Watch 1992, 60-61). Several publications have been banned, including some issues of the magazines Newsweek and Der Spiegel and the International Herald Tribune which reported acts of police brutality during the demonstration on 16 November 1991, and copies already in circulation have been seized by police (Ibid., 61). Plays which are "too political" in the eyes of the authorities have been prohibited (Ibid.; Libération 27 Nov. 1991).

3.4                Ethnic Groups

The ethnic problem is intimately linked to the issue of multiparty government and power sharing in Kenya. The reason why President Arap Moi has defended the one-party state and the absolute supremacy of KANU so fiercely during his twenty years in power is "to preserve social order and political stability" (or in other words, to prevent the divisions inherent in tribalism) (Le Monde diplomatique Jan. 1992, 26; Africa Confidential 26 Oct. 1990, 2). Ethnic groups excluded from power are increasingly expressing their dissatisfaction. A case in point is the Luos, who in February 1990 launched a series of protests in Nairobi and the west of the country following the as yet unaccounted for assassination of their leader, Robert Ouko (then Minister of External Affairs) (Cordellier and Lennkh 1991, 274). With regard to "foreign" ethnic groups such as Somalis and Ugandans, the policy of Kenyan authorities has been called "official racism" by those both inside and outside the country (Ibid., 277). "Roundups" of ethnic Somalis often lead to arbitrary arrests of Kenyans belonging to minority ethnic groups (Human Rights Watch 1992, 65).

4.         FREEDOM OF MOVEMENT AND RISK OF RETURN

According to article 81(1) of the Constitution of Kenya:

No citizen of Kenya shall be deprived of his freedom of movement, that is to say, the right to move freely throughout Kenya, the right to reside in any part of Kenya, the right to enter Kenya, the right to leave Kenya and immunity from expulsion from Kenya (Blaustein and Flanz 1988, 53).

Despite these constitutional guarantees, this civil liberty is restricted. It appears that Kenyans wishing to travel abroad must provide proof of loyalty toward President Arap Moi's regime. In 1991, for example, the government seized the passport of a lawyer who advocated the restoration of democracy, thus preventing him from travelling to Athens to receive the Golden Pen of Freedom Award; another lawyer and human rights advocate was denied the right to travel to the United States (Human Rights Watch 1992, 61). In 1991, government authorities seized the passports of several Kenyans wishing to attend the opening conference of the Institute for the Promotion of Human Rights in Africa (Ibid.). Somali Kenyans who wish to obtain a passport must present their "pink card" to confirm their Kenyan nationality (Ibid.).

The case of former Member of Parliament Koigi Wa Wamwere, who obtained political asylum in Norway and who, in theory, enjoys the protection of that country's laws, illustrates clearly the restrictions on freedom of movement imposed by the Kenyan state on its political opponents. Koigi claims to have been apprehended by Kenyan soldiers who had crossed the border. According to Kenyan authorities, he was arrested in Nairobi and found in possession of illegal weapons (Amnesty International 13 Dec. 1991). At the present time, Koigi is reportedly detained in Kenya (Ibid.; Country Reports 1991 1992, 177).

5.            FUTURE CONSIDERATIONS

President Moi's reforms have not to date succeeded in restoring confidence among foreign lenders, who at a meeting in Paris in November 1991 gave themselves six months to better evaluate moves toward democratization. Nor do the reforms inspire confidence among Kenyans, who remain skeptical about the assertions by the head of state (The New York Times 3 Dec. 1991; Human Rights Watch 1992, 55, 69). In January 1992, for example, the International Press Institute (IPI) protested against the government's repeated attacks on Kenyan journalists (AFP 23 Jan. 1992). At the same time, the Kenyan Section of the International Commission of Jurists (ICJ) called on the Kenyan government to invoke the President's constitutional powers to grant unconditional release to political prisoners (BBC Summary 22 Jan. 1992a). Moreover, several prominent opposition figures, including Professor Wangari Maathai, Dr. Josephat Karanja and FORD leaders such as former Vice-President Odinga and Abdi B. Ali, appeared in court charged with propagating false rumours about a possible military coup (BBC Summary 22 Jan. 1992b).

Under intense local and international pressure, President Arap Moi seems also to have changed his tune. In 1990, he declared that 20 years were required for Kenyans of all ethnic backgrounds to develop the cohesion necessary to guarantee the viability of a multiparty system (Nairobi Law Monthly Dec. 1991, 12). At the meeting of Commonwealth Heads of State in Harare in 1991, however, Arap Moi stated that they would need five years (Ibid.). In November 1991, shortly before the leaders' meeting in Paris, he spoke of two or three years (AFP 17 Nov. 1991). One week after that meeting, opposition political parties in Kenya became legal once again (Nairobi Law Monthly Dec. 1991). Yet, this was the same President Arap Moi whose previous speeches referred to those involved in the multipartyism movement as "'rats' who should be 'crushed'" (The Independent 5 Oct. 1991), and who stated only recently that in Africa, multipartyism will never create political stability (Jeune Afrique 30 Jan.-5 Feb. 1992).

6.     APPENDIX: KENYANS OF SOMALI ORIGIN

6.0 Introduction

Kenyans of Somali origin make up 2.3 percent of the population. They live mainly in the northeastern province known as the Northern Frontier District (NFD) (Kurian 1987, 1036). Most of them are Kenyan citizens, as their ancestors have always lived in these regions. Some are refugees who fled the dictatorship of Siad Barré or the civil war in Somalia.

6.1 Historical Background

Upon gaining independence, Kenya laid claim to the northeastern region as part of its struggle against Somali fragmentation and its campaign to reconquer the "missing territories." In 1960, a Somali party known as the Northern Province People's Progressive Party was founded in that province (Boutros-Ghali 1972, 65). Its primary demand was for the region inhabited by Somalis to be detached from Kenya and re-attached to the Republic of Somalia (Ibid.).

In 1963, when Kenya gained independence, the struggle for the unification of the territories inhabited by Somalis had already begun. Between 1963 and 1967, Kenyans of Somali origin organized an armed resistance movement for the secession of the NFD (Africa Watch July 1991, 283). Kenyatta's government, calling its political opponents of Somali origin shiftas (bandits), immediately introduced the Preservation of Public Security Act, which gave the government absolute authority to detain any political opponent (Africa South of the Sahara 1990 1990, 561).

6.2 The 1980s

Gradually, the Kenyan government came to treat Kenyans of Somali origin as second-class citizens (Laitin and Samatar 1987, xvii). They were considered to be agitators, in particular due to certain "acts of banditry" presumed to have been committed by a limited number of shiftas (Africa Watch July 1991, 272-273). The entire Somali population of Kenya, however, suffered for this because of the radical measures adopted by the government. The latter resolved to combat the armed groups in the region first by shutting off access to water sources in the NFD, which is known for its desert climate. This move affected the entire civilian population (Ibid.). At least two massacres were reported in the NFD. The first occurred in 1980, when hundreds of villagers in the Garissa region were massacred following the assassination of six officials by a person of Somali origin (Ibid.). The second massacre occurred in February 1984, when some 2,000 Kenyans of Somali origin were burned alive when their clothing was soaked in gasoline and set on fire, while hundreds more have not been seen since (Ibid.). At the same time, 5,000 people were arrested and their identity papers destroyed. The crackdown sent a wave of refugees to Ethiopia (Ibid. 274-275). Local authorities even denied the medication they needed, despite the large number of injured, and the Somali patients in Majir hospital were expelled (Ibid.).

At the time of the 1980 massacre, the Minister of Internal Security declared that "the only good Somali is a dead one" (Ibid., 273). The condition of Kenyans of Somali origin, both those whose ancestors have always lived in northeastern Kenya and those who have sought refuge there more recently, deteriorated with the mass influx of Somali refugees in 1988-1989.

6.3 Screening of Somalis in 1989-1990

In November 1989, following the flood of Somali refugees caused by the heavy fighting in southern Somalia and on the pretext of combatting illegal immigration, the Moi government ordered all Somalis to report to one of fifty-one screening centres, with their identification papers (KANU membership card, birth certificate, passports and other documents) (The Los Angeles Times 30 Mar. 1990, 29; Africa Watch July 1991, 227, 298). Once their citizenship was established, Kenyans of Somali origin were given a "pink card," which confirmed their Kenyan nationality (The Washington Post 27 Dec. 1989). Due to the oral nature of Somali tradition, the absence of papers in many remote communities and the destruction of their documents, some were unable to present evidence of their nationality and could not avoid expulsion (Africa Watch July 1991, 331-332). This action sparked anger among Somalis and indignation among religious groups. The Nairobi Law Society denounced the procedure, calling it "unconstitutional, inapplicable and illegal" (Ibid.).

Although some "illegal immigrants" known to Kenyan immigration authorities may have committed offences on Kenyan soil, the entire Somali ethnic group, Kenyan nationals as well as foreigners, was targeted by this campaign. Those who refused to submit to the exercise, objecting to this subjection of only one part of Kenyan society "to a discriminatory selective process," were imprisoned or dismissed from their jobs (Africa Watch July 1991, 300). Even "looking like" a Somali was grounds for arrest in the absence of documents (The Los Angeles Times 30 Mar. 1990, 29). The screening of Somalis was not confined to the NFD, but also extended to the large urban centres of Nairobi and Mombasa (The Washington Post 27 Dec. 1989, A8).

6.4 Somali Refugees in Kenya

The mass influx of Somali refugees into Kenya has grown substantially heavier in recent years as a result of the interminable civil war raging in Somalia. The HCR recently estimated that 75,000 refugees had arrived in Kenya since October 1991 (AFP 31 Jan. 1992; UNHCR 31 Jan. 1992).

In September 1989, government forces of Siad Barré's regime massacred the villagers of Doble, in southern Somalia. Many civilians fled the fighting between government troops and rebel forces, crossing the border into Kenya. Although President Arap Moi condemned the actions of the Somali troops, he denied humanitarian organizations (including the HCR) access to the refugee camps, and Kenyan security forces blocked deliveries of water and food to refugee camps. As a result, two children and three women are said to have died of dehydration and lack of food in the Liboi camp (Africa Watch 17 Nov. 1989, 2-3).

Contrary to international agreements signed by the Kenyan government, political asylum was not granted to Somali refugees. Instead, authorities took steps to repatriate them (Ibid., 3). Their life in the camps is difficult; according to the available reports, Kenyan soldiers harass and beat refugees (Ibid.).

6.5 Summary

As a result of their ethnic origin, Kenyan Somalis are still suffering discrimination and harassment by government forces which Africa Watch calls "forces of occupation" (Africa Watch July 1991, xi). According to the 1991 annual report of Human Rights Watch, Somalis are still victims of serious human rights violations by Kenyan authorities (Human Rights Watch 1992, 64).

Furthermore, according to the High Commission of Kenya in Ottawa, the majority of those seeking asylum from Kenya are of Somali origin and do not possess genuine Kenyan passports (High Commission of Kenya, 24 Mar. 1992).

Finally, it is difficult to determine how Kenyan nationals of Somali origin would be treated if they returned to their country after claiming refugee status abroad (Lawyers Committee 25 Mar. 1992). Nevertheless, Kenyans of Somali origin who do not have travel or identity documents (passport, "pink card," KANU membership card and other documents) would appear to be potential candidates for deportation to the Republic of Somalia (Ibid.).

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