Violence Following Kenya’s Presidential Election Prompts International Responses

UN Secretary General António Guterres meets with President Uhuru Kenyatta
Credit: UN Photo/Antonio Fiorente

The United Nations High Commissioner for Human Rights, Zeid Ra’ad Al Hussein, last week urged Kenyan leaders to “calm a volatile political climate” while ensuring the right to peaceful assembly; his statement followed reports of the use of live ammunition against protesters in the wake of President Uhuru Kenyatta’s August 8th re-election. Reports indicate 24 people died due to the post-election violence. [Washington Post; OHCHR Press Release: Zeid] In addition to Zeid’s statements, the UN Secretary General António Guterres, and the African Commission on Human and Peoples’ Rights (ACHPR) also responded to the post-election violence. The Secretary General called on leaders to settle disputes over the election through the appropriate institutions and to urge others to refrain from violence. [UNSG Press Release] The African Commission called for increased transparency of voter tallying, the avoidance of acts or statements inciting violence, and the use of legal avenues to address election related disputes. [ACHPR Press Release] While it was not responding directly to the post-election violence, the East African Community (EAC) Election Observer Mission to the Republic of Kenya (EAC Mission) did encourage anyone dissatisfied with the results to use the proper channels to challenge the outcome. [EAC Press Release] Despite the reports of post-election violence, Zeid, Guterres, the African Commission, and the EAC Mission recognized and commended Kenya’s peaceful voting process before the violence. [ACommHPR Press Release; EAC Press Release; OHCHR Press Release: Zeid; UNSG Press Release]

Kenya has a history of election related violence. Notably, during its 2007 elections, inter-ethnic clashes and police violence resulted in 1,100 people killed and 650,000 people displaced. [HRW: 2013] As a State party to the African Charter on Human and Peoples’ Rights, as well as other international human rights treaties, Kenya has an obligation to protect, respect, and fulfill the rights to life, freedom of expression, peaceful assembly, and participation in public affairs under articles 4, 9, 11, and 13, respectively.

2017 Election

On August 8, President Kenyatta was re-elected with more than 54 percent of the vote, in Kenya’s fifth election since the end of the one-party state in 1991. [Washington Post; HRW: 2017] Despite international praise for the peacefulness of the voting process, accusations of voter fraud spearheaded by opposition candidate, Raila Odinga, have heightened volatility in the State. Following the announcement of results on August 11, Odinga called for protests, and the security forces responded to those protests allegedly with force. [Washington Post] Responses to the election have been reportedly violent; the Kenya National Commission on Human Rights estimated that at least 24 people were killed in the post-election violence after the results were announced. [Washington Post]

United Nations High Commissioner Statement

The High Commissioner called for the concerted effort of Kenya’s political leaders to halt violence taking place in response to the election, and voiced concern over reports of police brutality, including the use of live ammunition against protesters, which has led to several deaths and injuries. [OHCHR Press Release: Zeid]

In response to reports of election related protests that allegedly involved stone throwing, looting, and destruction of property, and to reports of police brutality, the High Commissioner emphasized that all people have the rights to assemble and to peacefully protest; the High Commissioner also reiterated that these rights must be protected by security authorities. [OHCHR Press Release: Zeid] The High Commissioner affirmed that protesters should never resort to violence and, instead, should funnel election related concerns through the proper legal channels. [OHCHR Press Release: Zeid] The High Commissioner stated it is the Government’s responsibility to make sure that security forces implement a strategy prioritizing non-violent, dialogue-driven tactics and apply proportionate force only if necessary. [OHCHR Press Release: Zeid]

To ensure accountability for alleged acts of violence, the High Commissioner recommended that the Government of Kenya publicly commit to cooperating with the Independent Policing Oversight – a civilian institution created to monitor the police in Kenya – and that it initiate prompt and independent investigations into election related abuses. [OHCHR Press Release: Zeid]

Regional Responses to the Election in Kenya

African Commission on Human and Peoples’ Rights

The African Commission invoked articles 13, the right to participate in government, and 20, the right to self-determination, of the African Charter on Human and Peoples’ Rights in a statement supporting the right to free and fair elections in Kenya. [ACHPR Press Release] After observing the presidential election in Kenya, predominantly through its Country Rapporteur, the African Commission provided four recommendations to various stakeholders. First, to Kenya’s independent electoral commission, the African Commission recommended tallying votes with transparency and integrity, pursuant to the law. [ACHPR Press Release] Second, the African Commission urged political actors and the public to avoid acts, or statements, of violence that may exacerbate tensions. [ACHPR Press Release] Next, the African Commission called on political parties and candidates to respect election laws and to use established legal processes for pursuing election-related disputes. [ACHPR Press Release] Finally, to the people of Kenya, the African Commission recommended letting the electoral process continue without turning to violence. [ACHPR Press Release]

East African Community

While the EAC Mission did not comment on the post-election violence, it did make a few recommendations and comments about the election process. The EAC Mission reported that candidates were generally able to campaign freely and that mainstream media coverage was largely balanced. On polling day, the EAC Mission reported that polling stations opened on time and drew large ques, and that the polling process seemed to run smoothly. According to the EAC Mission, security forces at polling stations were present and maintained order. The EAC Mission recommended improving the efficiency of polling stations, identifying specific polling stations earlier, and ensuring the on-time delivery of necessary materials to polling stations. [EAC Press Release]

The EAC Mission was initiated at the invitation of Kenya’s electoral commission and in accordance with EAC practice to assess whether the presidential election was conducted legally and in a way that reflected the free will of Kenyans. The EAC Mission’s findings are based on pre-election and polling day observations. The EAC Mission will continue to engage with the electoral process and will provide a final report at a later date, which will include more in-depth observations, findings, and recommendations. [EAC Press Release]

Background on Presidential Elections in Kenya

Three of the previous four elections in Kenya were marked by violence. [HRW: 2017] Violence after the 2007 election, which resulted in over 1,000 people’s deaths, led to indictments by the International Criminal Court against Kenyatta and his running mate for inciting ethnic violence; the charges were eventually dropped due to a lack of evidence. [Africa News] The violence also led to the 2008 National Accord and Reconciliation Act, and the formation of a new constitution in Kenya in 2010. [Africa News] According to Human Rights Watch, the root causes of election-related violence continued due to the government’s unwillingness to reform the police, address corruption, resettle displaced persons, and ensure accountability against the perpetrators of violence. [HRW: 2013]

Prior to the 2017 election, United Nations Special Rapporteurs on the rights to freedom of peaceful assembly and of association; on the situation of human rights defenders; and on extrajudicial, summary or arbitrary executions acknowledged progress made in the country to strengthen democracy and human rights within the context of elections, and applauded the State’s commitment to ensuring space for media and civil society. The experts, though, highlighted increased incidents of political violence and hate speech, and called for a peaceful electoral process. [OHCHR Press Release: Elections]

Kenya’s Human Rights Obligations

Kenya is a State party to the African Charter on Human and Peoples’ Rights, which protects the right to participate freely in government under Article 13 as well as the rights to life, freedom of expression, and peaceful assembly under articles 4, 9, and 11, respectively. Additionally, Kenya is also a State party to the East African Community Treaty, under which Kenya must uphold principles of democracy, the rule of law, social justice, and human rights. Kenya is a State party to the African Charter on the Rights and Welfare of the Child, and the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, which are both regional human rights conventions.

At the universal level, Kenya is a State party to the International Covenant on Civil and Political Rights, which protects the rights to life, freedom of expression, peaceful assembly, and to take part in public affairs and vote under articles 6, 19, 21, and 25, respectively. Kenya is also a State party to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; the Convention on the Elimination of All Forms of Discrimination against Women; the International Convention on the Elimination of All Forms of Racial Discrimination; the International Covenant on Economic, Social and Cultural Rights; the Convention on the Rights of the Child; the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict; and the Convention on the Rights of Persons with Disabilities.