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Kenya: Impunity & Elections, 2

AfricaFocus Bulletin
Jan 23, 2012 (120123)
(Reposted from sources cited below)

Editor's Note

"The promulgation of the constitution on 27 August 2010, was a historic moment in our country. The constitution was a culmination of the work of a lifetime for most people in this gathering and many other Kenyans not at this meeting. It may also stand out in history as the singular achievement of Kenyans in this time. ... Yet, my concern is that there appears not to have been a proper appreciation of the essence of this constitution after its promulgation. ... I have come to the inescapable conclusion that there are Kenyans at all levels who are yet to make the mental shift to the national and individual conduct that the constitution heralds." - Chief Justice Willy Mutunga, December 2011

Opening a very complex year of legal and political developments in Kenya, the International Criminal Court today issued pre-trial indictments against four prominent Kenyan political figures, including rival presidential candidates William Ruto and Uhuru Kenyatta, for crimes during the post-electin violence in late 2007 and 2008 (see /direct URL Charges were also issued against Cabinet Secretary Francis Muthaura and radio executive Joshua Arap Sang. Charges were not filed against two other suspects, Postal Corporation chief Hussein Ali and suspended government minister Henry Kosgey.

For additional news and reactions from the Kenyan press, see

This AfricaFocus Bulletin, available on the web at, contains the December speech by Chief Justice Willy Mutunga, and the executive summary and key recommendations on U.S. policy from a policy brief from the Friends Committee on National Legislation on the context for Kenya's next elections.

Another AfricaFocus Bulletin, sent out by e-mail today and available on the web at, contains an overview from an International Crisis Group briefing on the ICC and Kenya and the executive summary of the most recent monitoring report from the Kenya National Dialogue and Reconciliation (KNDR) Monitoring Project. The KNDR reports, available at, provide systematic reviews of the process since the 2007-2008 election violence.

Regular updates on the ICC process and Kenya are available at The International Criminal Court Kenya Monitor (, a project of the Open Society Justice Initiative. There is a concise summary of the background to the ICC cases at

For comprehensive legal updates from Kenya, see

Two very valuable additional reports published last year, with extensive background information but too detailed to be excerpted in AfricaFocus, are the May 2011 special issue of Pambazuka News on Justice for the People of Kenya (, and the August 2011 publication by the Kenya Human Rights Commission (Lest We Forget: The Faces of Impunity in Kenya). the KHRC report provided a detailed review of a large number of governmental reports on corruption and human rights violations, published and unpublished, for the period 1992 to 2010. It notes that there is a plethora of well-documented information. "What has been lacking", it noted, "has been the political will to follow up on the recommendations made in these reports - to investigate and call to account those found responsible for the violations." (Report can be downloaded from the KHRC site / direct URL:

For previous AfricaFocus Bulletins on Kenya, visit

++++++++++++++++++++++end editor's note+++++++++++++++++

The imperatives of living by our constitution

Willy Mutunga

Pambazuka News

2011-12-08, Issue 562

Justice Dr Willy Mutunga is chief justice and president of the Supreme Court of Kenya. This speech was delivered at the Kenya National Dialogue Conference in Nairobi on 5 December 2011.

Mr President, Mr Prime Minister, Mr Speaker, Mr Vice President, the Chair and Members of the AU Panel of Eminent Persons, retired presidents, friends, colleagues, fellow citizens, it is an honour to have received invitation to address you today particularly on an issue no less important than that of living by our constitution. I want to thank Dr Kofi Annan and his panel both for their courageous and selfless service to this nation at a difficult time and also for hosting this conference to enable us as a country to reflect and look into the future.

There is an influential section of legal scholarship that has made the argument that the crisis of governance in contemporary Africa has been a deadly combination of bad constitutions, often imposed and subsequently serially amended to create imperial presidencies on the one hand, and an absence of constitutionalism - the absence of a culture to obey and respect rules, on the other. Coupled with bad leadership and general institutional malaise, the transition to democracy has been inchoate, dominated by reversals at every stage. The result: a tortured population inhibited from realising its full potential; an institutional culture of timidity, even where no threats exist; and a society and politics characterised by violence, fragility and instability. The economic, political, and human costs have been incalculable. Hence the reason we must not be blithe and casual in our treatment of constitutional texts, once freely enacted, after years of struggle and sacrifice.

There is no doubt that Kenya has a very progressive constitution. It is long not just in size but also in aspirations - an ambition of a nation codified and expressed in very clear accents. And it was also long in coming, itself a denotation or proof of the importance of this social contract. But we will only live it if we understand it; only if we embrace it; and only if we respect it. As leaders and citizens, these are the three simple tests we must meet in order to breath life into this constitution.

For those who may be tempted to bear the illusion that Constitutions are mere pieces of paper, I want to invite you to reflect on this fact: It is not by accident that when state officers take office, whether in the executive, legislature or judiciary, or even in other independent constitutional offices, they are required to take an oath as prescribed in the constitution. If it did escape your attention before, now it must not: whereas those oaths bear different textual forms, there is always a common refrain: 'to protect, defend and uphold the constitution and other laws'. The meaning of this ubiquitous line is direct: all state officers are creations of the constitution and the law. Its implication is plain and simple: in the words of a philosopher who was here long before us - be ye so high, the law is above you. Its political and philosophical foundations very clear: the constitution is a social contract among citizens and once leaders are elected or appointed into office they are sworn and bound to respect this contract.

Citizens and leaders of this country must internalise and understand why the assumption of high office is preceded by the taking of an oath that constantly binds them to act in accordance with and defend the provisions of the constitution. Understanding the import of this basic act is the beginning of living our constitution. Any leader who doesn't is unfit to be in office. Any citizen who hasn't is failing the test of good citizenship. Strict compliance with the constitution and the law is so important that it forms the first ground for impeachment of the president.

But this law that is above all of us, and which we must do our duty to obey, is not an imposition. It is a product of popular will and consent to be ruled by its edict.

The excitement and good spirit of this conference today, may very easily obscure or conceal its tragic origins. These series of dialogues are an expression of institutional failure. It is because of a failed electoral system, a failed judiciary, a failed police force and a general failure of the state in 2007/2008 that provided the basis for this and other consultations before it. Restoring confidence and faith in our institutions is part of living our constitution. It is the small things that we do as institutions and citizens that begin the process of building confidence.

The promulgation of the constitution on 27 August 2010, was a historic moment in our country. The constitution was a culmination of the work of a lifetime for most people in this gathering and many other Kenyans not at this meeting. It may also stand out in history as the singular achievement of Kenyans in this time. Needless to say, many Kenyan persons paid for the achievement of this constitutional dispensation with their tears, blood, and sweat. Lives and personal liberty were lost, friendships were strained and families were shattered. It is all too easy to forget these heavy prices paid by our compatriots. In short, we need to remember that the consideration for this social contract that is Kenya's constitution was the highest possible price the citizens could have paid for it.

For that reason, the taking of effect of this constitution is an achievement of a once far-off dream. Yet, my concern is that there appears not to have been a proper appreciation of the essence of this constitution after its promulgation. From the statements, actions, inactions and perfidy that is evident among some citizens, some authorities and persons are signals of another reversal in our democratic transition that has been the bane of most African countries is becoming evident. Some of these actions are by default; others are by design but the category does not matter for their cumulative effect is the same. I have come to the inescapable conclusion that there are Kenyans at all levels who are yet to make the mental shift to the national and individual conduct that the constitution heralds.

It is depressing that one year after the promulgation of the constitution, the country falls in the corruption index, we still hear of extrajudicial killings, institutions and leaders play fast and loose with constitutional deadlines and so on. Constitutional provisions are there to be obeyed and any public or state official who finds certain clauses administratively inconvenient must be reminded that vacation of office is a honourable option if one no longer feels capable of honouring his or her oath of office to protect, defend and uphold the constitution.

There is discernible stonewalling by certain sections of this country to the establishment of the institutions that are required to be formed, deliberate disregard to the rights of the citizens and utter refusal to incorporate its principles in the instruments of governance.

My response is this: living by the constitution of Kenya is not a choice for any individual, institution, office or authority. All Kenyans must comply and live within the edicts of the constitution.

Compliance with the constitution is not about picking those that afford us our desired rights and ignoring our responsibilities therein. It is not an all or nothing situation. Kenya must comply with the whole constitution all the time and in every office. From the tiniest hut to the State House, this constitution must apply, to the lowliest hawker no less than it will apply to the corporate titan, to the governor no less than the governed. That is what the rule of law means. It is what equality before the law requires.

I do not underestimate the difficulty of living by this constitution. Yet the rule of law is not for the fainthearted. There is not time or opportunity to implement the constitution in half-measures.

We cannot live only with our likes and ignore your dislikes. This is particularly true in light of the fact that it may be possible that there are certain clauses that may be more appealing to us than others. For those of us within the arms of government, we must remember that we are under obligation to abide by the whole constitution not individual clauses.

We must foster the realisation in all that this constitution is for all Kenyans. That is why its destiny has been placed upon all of us. It has placed responsibilities to ensure its implementation on all. No one is immune from the duty to uphold the constitution. In short, we must be each other's keeper in ensuring that the constitution is lived to its fullest.

Therefore, living by this constitution means that we must do what it requires to be done, when it is required to be done whatever the cost in finance, in effort and in personal convenience. Secondly, we must reconstitute, reform and dismantle those institutions and offices it compels us to.

Public participation is one of the fundamental principles in the new constitution. It runs the entire gamut of the document. Citizen vigilance is important in protecting and promoting our constitution.

But the public should not merely demand of their leaders to respect the constitution, they must also live by its edicts. It worries me when I see daily individual transgression where citizens routinely violate the rights of other citizens. Living the constitution is not a preserve of the leadership; it is an obligation that reposes in the citizen as well. In your daily conduct, in your relationship with other Kenyans, in exercising your right to choose leaders you have a responsibility in giving life to the constitution.

If you choose to elect a leader who fails the test of Chapter Six [on leadership and integrity], you will be as guilty of undermining the constitution as a leader who thinks that ignoring court orders is an act of nobility. Choosing to support extrajudicial killings, as opposed to submitting to due process, amounts to killing the constitution. In choosing the path of electoral violence, instead of a free, fair, and peaceful electoral process is to subvert the constitution. In choosing to play ethnic politics, instead of patriotic politics contributes to the killing of the constitution.

Fellow citizens, we have made a contract with ourselves; let us perform it. The constitution is the performance contract we have signed among us as citizens as well as between citizens and the governed. Every single day, we must ask whether we are hitting our constitutional targets in this performance contracting.

The business community must learn that it is in its long term interest to have a constitution that works, and a country that respects the rule of law. The effort it put in the referendum after years of mistaken belief that the constitution was not its business will be wasted if it does not pay attention to the implementation of the constitution. I also want to recognise the immense contribution of the international community to the struggle for the new constitution. They provided significant resources and support at critical stages and still have a responsibility to continue supporting this country in building its democracy.

The judiciary will play its role as mandated by the constitution. As I said in my statement during the inaugural sitting of the Supreme Court, we shall not blink or flinch in interpreting the constitution and also remaining true to the oath of office we took. The constitution has radically changed the way the judiciary is organised and operates. Every day we are doing our part to live by the constitution. The judiciary will play its role as mandated by the constitution.

That is why we have embarked on an ambitious transformation framework for a functional judiciary which is a major determinant for good politics and good business. For the security of tenure you have given us, the judiciary must and will show its independence.

We shall not hesitate to act as long as we are doing so within the confines of the law. It is a commitment I want to give to the country: that when it comes to upholding and protecting the constitution, the judiciary will not be for turning.

To the two principals, I have this to say: You have made your own sacrifices to have this constitution. I remember your struggles on the trenches for a better Kenya and a new constitution. I particularly recall your participation in the National Convention Executive Council and the mass action of 1997.

It is a good thing that you have ascended to high office.

However, I hope that you appreciate that the biggest legacy that you will leave for this country is not so much the fact that you ascended to power but that you facilitated the delivery of a new constitution and defended it when it was under attack.

To fail to protect this constitution will be a betrayal of your own struggles; a betrayal of your own oaths of office and a betrayal of the struggles and aspirations of the many Kenyans.

Fellow Kenyans, we must all go back and read the constitution.

Each institution must go back and read the constitution and systematically understand what it means for their work.

Living by our constitution demands that we learn and know its contents not through some remote imbibing or 'I hear the constitution says, type of discussions - it means taking individual responsibility to read and obey it.

Kenya's National Elections: Violence Renewed or Crisis Prevented?

By Cassidy Regan, Scoville Peace Fellow

For more information, contact Bridget Moix at

Policy Brief 2011

Friends Committee on National Legislation

[Executive Summary and key recommendations only. For full text of the policy brief, see]

October 2011

Executive Summary

In 2012, Kenya plans to hold national elections. These general polls will be the first since December of 2007, when the country's disputed presidential race provoked a deadly crisis that threatened to erupt into civil war. Ultimately, more than 1,000 people were killed and an estimated 500,000 displaced.

Many Kenyans have since worked tirelessly toward breaking their country's cycle of electoral violence, and the upcoming polls will mark a critical moment in the attempt to prevent crisis renewed. As the elections approach, the U.S. government should proactively take part in the effort to help prevent deadly conflict and support long-term peace - not only because of Kenya's longstanding economic and political partnership with the United States, but because of the crucial role Kenya plays in its wider region.

While much has been achieved in Kenya since 2007, many of the grievances most responsible for past electoral violence continue to plague its citizens. Tensions around issues including inequality, ethnic division, lack of land reform, corruption and high rates of youth unemployment remain. Though Kenyans peacefully approved a new constitution in 2010 that contains many much-needed reforms, political resistance to changes in the status quo continues. The government has also been slow to hold perpetrators of the 2007 post-election violence accountable, causing Kenyans to question the government's commitment to ending impunity and leading to an external investigation of the crimes by the International Criminal Court.

At the same time, Kenya's relatively robust institutions and infrastructure provide much of the foundation necessary for long-term stability. Moreover, its past demonstrates that action to avert violence can be effective. Even in the midst of the growing conflict in late 2007, Kenyan civil society, regional African groups and the broader international community were able to respond with humanitarian assistance, citizen advocacy and rapid diplomacy. The efforts led to a peace agreement that both put an end to the immediate violence and called for commitment to long-term reform, demonstrating how the tools of tools of diplomacy, civil society mobilization and international cooperation can be used to halt atrocities and restore peace.

Once again, the United States and greater international community have a significant stake in helping to ensure a peaceful outcome to the Kenyan election. Kenya has longserved as the anchor of U.S. policy in the region, and its strong economy, vibrant civil society and meaningful contributions to regional organizations and peacekeeping efforts make the country critical to East African and global stability.

Though Kenyans themselves will take the most important steps toward lasting peace, the Obama administration and Congress can and should join them in supporting the prevention of deadly conflict. By investing in grassroots peacebuilding and civic education, coordinating preventive diplomatic efforts, encouraging greater accountability from the Kenyan government and preparing to respond rapidly to any violence that might occur, the United States can make concrete contributions toward preventing another crisis - well before the election begins.

Key Recommendations for the U.S. Government

  • Develop and implement an interagency prevention strategy focused on Kenya well in advance of the 2012 elections. Utilize the new Atrocities Prevention Board at the National Security Council to create a coherent, prevention-focused strategy that emphasizes early, sustained diplomatic engagement and support for local preventive efforts. Invest in the U.S. civilian capacity necessary for effective prevention and response to potential violence (including tools like the Complex Crises Fund and Civilian Response Corps).
  • Coordinate preventive diplomatic efforts with key Kenyan and international partners, including the African Union and United Nations. Support others' leadership and contribute U.S. assets where most useful.
  • Direct U.S. diplomatic engagement toward pressing Kenya's leaders to implement the constitution and to advance government accountability at both national and local levels. Support the International Criminal Court investigations, as well as Kenyan judicial and criminal justice reform. Urge greater demonstration of commitment to volatile issues, including land reform, corruption and the resettlement of those internally displaced.
  • Increase funding for U.S. assistance focused on conflict prevention and management, as well as funding for aid that addresses root causes of conflict and supports stability in the long-term. Provide more resources for initiatives related to civic education, community peacebuilding, civil society, fair elections and youth economic empowerment, particularly in volatile areas.
  • Ensure that U.S. assistance does not inadvertently enable further human rights violations. Undertake a full review of U.S. security assistance to Kenya that is informed by a conflict assessment and a thorough examination of the current state of Kenya's security forces. Proactively monitor units receiving U.S. assistance and halt all lethal aid.
  • Provide funding to support the disarmament of local militias and increase efforts to help reduce arms trafficking in the greater region. Continue to facilitate the destruction of small arms and light weapons.

AfricaFocus Bulletin is an independent electronic publication providing reposted commentary and analysis on African issues, with a particular focus on U.S. and international policies. AfricaFocus Bulletin is edited by William Minter.

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