Kenya is a multiethnic, multilingual democracy that has struggled for decades to break with a past marked by violent colonial rule and dictatorship.
The British Empire seized control of Kenya in 1885, declaring it a “protectorate” ten years later. Wrongly considering much of the country’s land to be unoccupied, the colonial authorities passed a succession of regulations that expropriated much of Kenya’s most fertile land for colonial government use.
In response, many young Kikuyu persons organised themselves into an armed resistance group with the objective of forcing all Europeans to leave Kenya. This resistance to the colonial government represented an important precursor to the nationalist, anti-colonial insurgency known as the Mau Mau uprising, which rocked the country from 1952 until 1960. The British response to this insurgency was brutal. Although official tallies came to around 11,000 dead, the Kenya Human Rights Commission estimates that 90,000 Kenyans were executed, tortured or maimed during the colonial government’s counter-insurgency campaign.[1]
In 1963, not long after the Mau Mau uprising had been suppressed, Kenya declared its independence and elected Jomo Kenyatta as its first Prime Minister. One year later, Kenya became a republic and Kenyatta was elected President, a role he retained until his death in 1978. Kenyatta augmented his powers as President by making Kenya a de facto one-party state, and by asserting the executive power to appoint judges and declare states of emergency without parliamentary approval.[2] The Kenyatta regime violently and systematically suppressed dissidents and perceived political opponents.
Following an uncontested election, Daniel arap Moi ascended to the presidency after Kenyatta’s death. President Moi’s leadership, like Kenyatta’s before him, was characterized by political patronage, political killings, political detentions, and restrictions on freedom of speech and association. Under President Moi, the level of human rights abuses, economic corruption, and political patronage rose sharply, accompanied by decreased accountability for government actions.[3]
In the early 1990s, President Moi reluctantly agreed to allow multi-party democracy, and he presided over two multi-party elections while he was in office: first in 1992 and again in 1997. Although he agreed to democratic, multi-party elections, President Moi did not accept that he might lose the presidency in the process.[4]
Kenya held its first genuine multi-party election on December 29, 1992.[5] Moi’s administration endeavoured to keep opposition supporters from voting by hiring gangs to maim and kill people and to displace individuals from their home areas. Moi won this election comfortably, as he did again in 1997 by employing similar tactics.[6] Despite two government inquiries and two human rights reports naming those believed to have been responsible for the electoral violence, none of the persons deemed responsible were ever prosecuted.[7] This led to a culture of impunity whereby those who maimed and killed for political ends were never brought to justice. As a result, violence had become institutionalized during presidential and parliamentary elections.[8]
In 2002, opposition candidate Mwai Kibaki was elected president of Kenya on an anti-corruption platform.
In spite of the widespread impunity, Kenya was considered to be one of the most stable countries in Sub-Saharan Africa, serving as something of a centre for the financial, communications, and tourism industries in East Africa. That is, until the election-related violence of 2007.
After another disputed presidential election in 2007, Kibaki was again named President of Kenya. His opponent rejected this result, claiming there had been widespread electoral fraud. A series of protests and demonstrations followed, and violence erupted, including patterns of police use of excessive force and killings against protesters as well as ethnic-based violence and killings by supporters aligned with both the ruling and opposition parties. This post-election violence left at least 1,133 people dead and displaced approximately 350,000 more.[9]
In addition to widespread expulsion of people from their homes, destruction, and looting, at least 900 cases of sexual violence were identified, mostly against women and girls but also targeting men and boys. The sexual violence experienced by the victims took the form of gang and individual rapes, as well as female and male genital mutilation. Furthermore, entire families, including children often were forced to watch their parents, brothers and sisters being sexually violated. The acts of sexual violence were mostly committed by security forces, though they were also committed by gang members and ordinary citizens.[10]
On March 10, 2010, the ICC launched an investigation into the situation of Kenya, specifically to review possible crimes against humanity committed during the 2007 post-election period. In March 2011, the Trial Chamber II issued summonses for six high-profile Kenyans from both sides of Kenya’s 2007 elections, all suspected of orchestrating attacks on rival political supporters. All six made their initial appearances before the Court in April 2011. However, charges were either not confirmed by the chamber or were withdrawn by the prosecution in each of these cases, perpetuating the culture of impunity for election-related violence.[11]
After another disputed election, Uhuru Kenyatta assumed the presidency in 2013. He did so again in 2017 after yet another disputed election. The 2017 election was marred by serious human rights violations, including unlawful killings and beatings by police during protests and house-to-house operations in western Kenya.[12]
The political history of Kenya reveals a pattern of extra-judicial killings, torture, arbitrary detention and corruption, either sanctioned or committed by state authorities, both colonial and postcolonial, without perpetrators being held accountable. It is this history of impunity that continues to empower the organisers and perpetrators of violence during election periods, to commit atrocities with the confidence that they will never be investigated or prosecuted for their crimes. [13]
[1] Nichols, Lionel. The International Criminal Court and the End of Impunity in Kenya, Springer, 2015, p. 54 (Nichols). See also Mau Mau uprising: Bloody history of Kenya conflict, BBC News, 7 April 2011, available at https://www.bbc.com/news/uk-12997138
[2] Nichols at p. 55.
[3] Africa Watch, Divide and Rule: State-Sponsor Ethnic Violence in Kenya (Divide and Rule), Human Rights Watch, November 1993, p. 8.
[4] The Kenyan Commission of Inquiry into Post-Election Violence (Waki Commission), October 2008, at p. 36.
[5] Divide and Rule at p. 11
[6] Waki Comission at p. 26.
[7] Waki Comission at p. 26.
[8] Waki Commission at p. 25.
[9] Waki Commission at p. 383, 271.
[10] Waki Commission at p. 348.
[11] International Criminal Court, Situation in the Republic of Kenya, available at https://www.icc-cpi.int/kenya.
[12] Human Rights Watch, Kenya: Post-Election Killing, Abuse, available at https://www.hrw.org/news/2017/08/27/kenya-post-election-killings-abuse.