ELECTORAL VIOLENCE IN KENYA: DIAGNOSIS AND PROGNOSISBy Christopher Mulei*1. RATIONALE FOR THE STUDY(a) The Gathering Clouds of Electoral ViolenceAs this study establishes, electoral violence has been a palpable feature of the electoral process in Kenya, both by design and as a spontaneous phenomenon. There are no signs of this abating; if anything, the year 1997 seems slated for high voltage electoral violence judging from the rough political winds which have started blowing.Needless to state, electoral violence affects the right to political participation and breeds a culture of intolerance and thuggery. Recent events give credence to this pessimistic view, which is in no way a contrived voice of a Cassandra.The high watermark of political violence was the attack on the personal guard of the Leader of the Opposition by a member of the security forces. According to press reports, Ben Baraza, the bodyguard of Michael Wamalwa, was on April 14, 1997, shot by an administration policeman at Luandeti market in Lugari/Malava district. The opposition leader claimed there was a plot to assassinate him and perhaps other Opposition figures as the general elections approach. He further maintained that the bullet was meant for him but missed him by inches and ended up in the left shoulder of his bodyguard. The shooting occurred as a number of administrative policemen and a chief tried to block him from opening a Ford-Kenya office in the area.The same week, that is on April 16, armed men raided the home of the leader of the Democratic Party of Kenya (DP), Mwai Kibaki. The shaken veteran politician and his wife Lucy Muthoni insisted the break- in was politically motivated. "I don't want to believe that it is an ordinary robbery", the opposition leader told reporters. "The thugs looked experienced and knew what they wanted - and it was not just stealing because they stole nothing even after entering the house."Around the same time, that is the same week, key politicians in the National Development Party (NDP) were brutally assaulted in Eldoret in the heartland of the Rift Valley Province. On April 12, Langata MP Raila Odinga and Bondo MP Oburu Odinga were reportedly beaten by police in the rapidly growing town of Eldoret when opening the NDP's office. Trouble started at the new NDP office when anti-riot police arrived in full combat gear and ordered the Langata legislator to stop addressing the gathering since the meeting was unlicensed.Before Raila Odinga could summarize his speech, the more than 50 regular and administration policemen descended on the cheering, but peaceably assembled, NDP supporters with clubs. Several teargas canisters were thrown. In the ensuing stampede, a senior police officer attacked the Langata MP and his brother Oburu Odinga with a club, hitting them several times as NDP supporters fled in different directions.The Langata legislator, an ex-detainee and son of Kenya's Vice-President, sustained a swollen mouth whilst Dr. Oburu Odinga suffered a fractured left arm.The charging policemen shot in the air several times in a bid to disperse the more than 2,000 NDP supporters chanting: "Tinga, Tinga, Tinga!" (the symbol of Raila during the by-election in Langata which in English means "tractor") as Eldoret turned into a battlefield for more than three hours between the anti-riot 46 John H. Crabb, The Legal System of Congo - Kinshasa (Charlottesville, Virginia: The Mitchie Company, 1970), pp. 25-26.47 Grant Gilmore, The Ages of American Law (New Haven/London: Yale University Press, 1977), pp. 110-111.48 Naomi Chazan, 'Africa's Democratic Challenge", World Policy Journal, Vol. IX, No. 2, Spring 1992, p. 282.49 Ibid.50 Musa I.M. Abutundu, The State, Civil Society and the Democratization Process in Nigeria (Monograph Series 1/95 - CODESRIA Monograph Series), 1995, p. 2. 51 Supra, p. 5.52 Introduction by Arthur M. Schlesinger, Jr. in Claude Ake, "Rethinking African Democracy", Journal of Democracy, Vol. 2, No. 1, (1991), p. 37.53 Preliminary Report - Symposium on the Making of the New Ethiopia Constitution 17-21 1993 (Sponsored by The InterAfrica Group, Centre for Dialogue on Humanitarian, Peace and Development Issues in the Horn of Africa - Addis Ababa, Ethiopia) 1993, p. 61. B No. 762621REPUBLIC OF KENYACERTIFICATE OF BIRTH_______________________________________________________________________Birth in the ..............................................................................District in the.............................................................................................ProvinceNo. /19 Where Name Born Date of Sex Name and Surname Birth of FatherName and Maiden Name of MotherSignature, Description and Residence of Informant Signature of Date of Registering Officer RegistrationBaptismal Name if added or altered after Registration of Birth Certified to be a true copy of a return/an entry in the Register of Births in the District above mentioned. Given under the seal of the Principal Registrar on the .................................... day of ................................................ 19 This certificate is issued in pursuance of the Births and Deaths Registration Act (Cap. 149) which provides that a certified copy of any entry in any register or return purporting to be sealed or stamped with the seal of the Principal Registrar shall be received asevidence of the dates and facts therein without any or other proof of such entry.Typed by: (.............................................................)Checked by: (........................................................)FEE PAID: Fifty Shillings 'mental' imbalance, irrational impulse, from the desire to destroy or wreak vengeance. This is pathological or quasi-pathological violence, and is more frequent in our times than any other kind: criminality, terrorism, lawlessness. This kind of violence is an individual or collective disease. It produces nothing. It can have no human value" 17 . What is violence? When does violence occur? Why does violence occur? Who are the victims of violent act and events? And who can remain the spectators of violence today?These are pertinent questions and very relevant to the electoral violence in Kenya. Now, electoral violence cannot be seen as sporadic manifestations of conflict around election time: it's a phenomenon, an institution that impinges on the alignment of leadership in the country before and after elections. There are various forms of violence, which include: technological violence, economic violence, business violence, religious violence, political violence, and police violence. There is also sexist, racial and ethnic violence. Other candidates for inclusion are personal, anomic and pschogenic violence, assassination, terrorism, and political murder.One writer succinctly sums up violence in these words: "Violence at its root definition is any violation of the basic human rights of a person. these violations can be social, economic, moral and political".17A Electoral violence clearly belongs to this genre.Hannah Arendt, who has written a great deal on violence, attributes violence to, amongst other things, decrease in power:".. every decrease in power is an open invitation to violence - if only because those who hold power and feel it slipping from their hands, be they the govenment or be they the governed, have always found it difficult to resist the temptation to substitute violence for it"17B.Needless to state, electoral violence is a source and a manifestation of conflict. Accordingly, the act of voting partially defines the electorate in imposing certain minimum requirements on the voter; energy and time for going to the polls, capacity to decide among conflicting claims, sufficient relatedness to society or awareness of the election, capacity to implement emotional predisposition, and an affirmative view of the electoral process.The existence of free and fair elections remains the essential difference between democratic and non-democratic states. Clearly elections are central to democracy, they occasion mass political behaviour, detemine who governs and thus affect the lives of all of us. At a minimum, therefore, it is clear that they (elections) provide a peaceful way of changing governments.3. THE HISTORICAL BACKGROUNDGurr has summarized examples and comparative evidence in support of arguments that "a society's historical experience with political violence affects its prospects for future violence," and that there exist "distinctive patterns of violence by specific groups over long periods of time." According to Prof. Ake, ethinic conflict has always existed in Africa. He expounds: "[That is] why I must specify that I am not really interested in showing why there is ethnic conflict, but rather why it has become so intense and so destructive, despite the fact that Africa is increasingly urbanised and industrialised. Here we need to understand the forces which were responsible for the development of antagonistic relations of production." 20Looked at from the colonial legacy, and the attempt at the depoliticisation of the masses on the morrow of independence, ethnicity continues to play a major role in Kenya. Here, administrative units coincide with ethnic divisions as well as the geographical electoral constitutiencies. In so far as political and ethnic boundaries coincide, it is inevitable that any compaign for public support also entails the stirring of ethnic consciousness.Against this background of disdain for constitutionalism, fuelled by the ethnic factor, and the will to survive politically, elections may be rigged out not only by the drafting of the electoral law but also by the unfair administration of the law. Because of its estraordinary importance, the struggle to control the power of the state becomes very intense - one may say Hobbesian. Since the stakes are so high, the competitors do everything to win. Little attention is paid to constitutional behaviour, and the law is amended, reinterpreted, or blatantly violated from day-to-day to suit the purposes of the hegemonic faction of the bourgeoisie.True, there are also forms of conflict (including political conflict) within a particular ethnic division. Nevertheless, ethnicity continues to be a trump card to the elites within the country's political mainstream4 EMPIRICAL DATA(a) Delineation of the Issues or Stating the ProblemIn its Report after the 1992 general elections in Kenya, the Commonwealth Observer Group, headed by Mr. Justice T. Georges (a former Chief Justice of Tanzania), commented on the extent of electoral violence in these words: "Violence in various forms was an unfortunate accompaniment in the more volatile areas, particularly in the Rift Valley and the North Easten Provinces. In some instances, the violence was organized and premeditated, while in others it appeared to be spontaneous and random. This was a disap- pointing and sometimes tragic feature of the compaign and one which we hope would disappear with the nurturing of a new culture by the leadership of Kenya". Electoral violence in Kenya has taken on the appearance of an endemic feature in Kenya's representative politics. Not just on the actual polling day, but before and after. Indeed, electoral violence is often cited in election petitions, that is both physical and spiritual violence. Under section 9 of the Election Offences Act, 23 you commit the offence of undue influence, if you personally or through an agent: (a) Use or threaten to use force, violence or restraint against a person; (b) Inflict or threaten to inflict temporal or spiritual injury, damage, harm, of loss on a person; (c) Compel somebody to vote in a particular way; (d) Impede or prevent a voter from exercising his or her vote by, amongst other things, abduction, duress or fraudulent means.Spiritual injury here can also be read in conjunction with the Witchcraft Act, 24 a convoluted piece of legislation with glaring metaphysical gaps. Electoral violence in Changamwe (Mombasa) on the polling day in the 1992 general elections led to the nullification by the electoral court of Mr. Joseph Kennedy Kiliku's election. The court obesrved: "Elections in Changamwe were not free and fair due to excess violence there and many people were turned away from voting. The irregularities like late opening of polling stations, merger of stations and the violence makes the election of the respondent (Kiliku) invalid".The court in its judgement had noted that due to the violence, the petitioner, Mr. Ramadhan Seif Kajembe (Kanu) who lost in the 1992 election - was among those who did not vote.The judges further noted that during the elections, police had to open fire at Bomu polling station and this resulted in the death of one man while another was seriously injured.According to press reports, an agent of Mrs. Agnes Ndetei, then the Kibwezi MP-elect, was shot four times on the hip while celebrating the new MP's victory in Kibwezi town on the morning of 1 January 1993. 25Mrs. Ndetei, then of Democratic Party of Kenya (DP), said the agent, Ms. Angela Bernard, was celebrating together with other supporters when a District Officer allegedly snatched a rifle and started shooting at the crowd.Another illustration of the factor of post-election violence was the closure for a number of days of most business premises in Kenya's metropolis after the 1992 General Election. 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ööööööööööööööööööööööööööööENDNOTES1 Johan Galtung, Peace Research, Education, Action essays in Peace Research (Copenhagen: Christian Ejlus, 1975), p 781A See also Stanley B. Greenberg, "Social Differentiation and Political Violence" in The Journal of Conflict Resolution Vol.19, No. 1, March 1975, p. 163, wherein the political scientist states: "The concept of political viloence is captured by two distinct dimensions: collective protest (riots, anti-government demonstrations, and political strikes) and internal war (deaths from political vio lence, armed attacks and assassinations").2 Conor Cruise O'Brien, HEROD - Reflections on Political Violence (London: Hutchinson & Co. (Publishers) Ltd,3 Sharp, G., Exploring Nonviolent Alternatives (Boston: Proter Sargent, 1970), p. 31.4 Erik Erikson, Gandhi's Truth: On the Origins of Militant Nonviolence (New York: Century, 1969); Gene Sharp, Exploring Nonviolent Alternatives. 5 Lipsitz & Kritzer, "Unconventional Approaches to Conflict Resolution," The Journal of Conflict Resolution, Vol. 19, No. 4, December 1975, p. 716.6 Ibid., p. 732.7 Gabriel A. Almond & Sidney Verba, The Civic Culture - Political Attitudes and Democracy in Five Nations (Little, Brown and Company, 1965), pp. 365-66. 8 See Frantz Fanon, The Wretched of the Earth (London: Penguin Books, 1967), p. 27: "National liberation, national renaissance, the restoration of nationhood to the people, common- wealth: whatever may be the headings used or the new formulas introduced, decolonization is always a violent phenomenon."9 Valerie Kerruish, Sociology of Law and Crime (London: Routledge, 1991), p. 176.10 O'Brrien, HEROD - Reflections on Political Violence, pp. 20-21.11 Ibdi., p. 23.12 Bozeman, A. B., Conflict in Africa - Concepts and Realities.13 Ibid., p. 149.14 Le Vine, Victor T., "The Course of Political Violence", in William H. Lewis, ed., French-Speaking Africa: The Search for Identity (New York, 1965), pp. 59, 63.15 Bozeman, Conflict in Africa - Concepts and Realities, p. 370.16 Leopold Sedar Senghor, Liberte I: Negritude et humanism (Paris, 1964, p. 74). There was in effect overberaring influence of the ethnic conflicts on the voting behaviour of Molo constituents." (2) The clashes erupting in Molo were politically motivated and not ethnic-based. "...Whereas the non-Kalenjins saw KANU as the party that would sustain their livelihood given the hatred against their own caused by the clashes, the Kalenjins saw KANU as the party that would sustain their livelihood given the hatred against their own caused by the clashes".Additionally, a strategy of thwarting the holding of free and fair elections through official violence with a view to intimidating (and even eliminating) potential voters was evident. There was also an underlying message (never to take off the ground) that multi-party politics cannot work in Africa where it can only bring chaos and mayhem.The political violence in the Rift Valley was also touched on in the Commonwealth Observer Group on the presidential, parliamentary and civic elections held in December, 1992. The said report stated in part: "We note that the campaign was marred in the Rift Valley and neighbouring provinces by wide spread tribal disturbances, threats and harassment of party supporters, in particular supporters of the opposition."(cc) Election PetitionsElection petitions decided by the electoral court since 1970 contain a wealth of data containing the various offences which can render an election null and void.It is evident from the various petitions filed by unsuccessful candidates in parliamentary elections that petitioners show an inclination to cite "everything under the sun", that is including every possible allegation under the purview of the Election Offences Act.A popular item is the alleged effect of witchcraft, an area which, it seems to the writer of this paper (after going through Election Petitions since 1970), the Electoral Court is often ill-equipped to deal with especially with regard to the evidence put out, and is quite unfamilar with the terrain.There are two sides to the coin: with a high level of illiteracy, there seems reason to believe that rural populations are susceptible to manipulations of persons deemed to be wizards and witchdoctors in aiding the election chances of a particular candidate. At the other end of the spectrum is the need not to overdramatize, and not to fall prey to the belief (no longer held even by the ordinary people) that there is a pot of charms at the back of every rural homestead. This is of course not to minimize the impact of witchcraft on the African societies and its potency of undue influence in the electoral process.The following petition enables one to get a "feel" of the judicial uncomfotable orientation with matters relating to witchcraft. This is Election Petition Number 26 of 1979 which resulted in the nullification of the election of Mr. James Osogo as the MP for Busia South Constituency.31 In its finding the Electoral Court found that oaths were administered with the authority and knowledge of Mr. Osogo and expressed the view that it was not necessary to show that the oaths were given or taken in a strictly traditional form. Citing a previous landmark case in this particular respect, 32 the court, presided over by Sir James Wicks (then the Chief Justice), quoted from it approvingly: "As we have said in another case .. the authenticity of oath is irrelevant. A candidate wishing to bind people to vote for him would not necessarily follow the procedure of a well-known traditional oath. All he requires is something which will sufficiently resemble a traditional oath to influence voters and perhaps at the same time confuse the police and administrative officers." 33 Then followed political campaigners, political party agents at polling stations, parliamentary candidates and civic candidates. Some respondents added other categories, namely, "civilians" and "party supporters".Causes of the Electoral ViolenceFour major causes of electoral violence were cited: (a) Intimidatio of electors not to vote; (b) Physical confrontation between rival groups; (c) Irresponsible behaviour; (d) Ethnic animosity and lack of awareness of civic duty.Only a few of the respondents cited "Ethnic animosity" as a factor. The reason for this is not difficult to establish in that most of the rural electoral constituencies follow particular ethnic units. Lack of a code of ethics was also put forward by some respondents. More discerning respondents, albeit a few, put down the following: "Absence of machinery for either handling or resolving conflicts, especially of a political nature."Resolving the ViolenceThe reported incident(s) of violence were resolved through: (a) The intervention of civilian onlookers; (b) Intervention by Electoral Commission officials, and (c) Intervention by election monitors in that order. One respondent added "the clergy".The methodological problem here is that it was not indicated how the incidence of electoral violence was resolved. Was it, for example, through communication, use of sanctions, or through a court adjudication? The latter is especially important in the case of intervention by security forces.Reducing or eliminating electoral violenceTwelve possible ways in which the incidence of electoral violence could be reduced or eliminated altogether were suggested in the questionnaire and respondents were asked to rank the same in order of priority, that is from 1 to 12. The suggested methods were as outlined herinunder: - Creating a national democratic ethic (1) - Educating the electors of their civic duties and responsibilities (2) - Surmounting actual and potential ethnic prejudices and tensions (3) - Educating politicians of their civic duties and responsibilities (4) - Drawing up a code of ethics for political parties (5) - Imparting human rights education on security forces (6) - Enhancing the capacity of conflict prevention, management and resolution (7) - Introducing human rights education in schools (8) - Enacting an electoral code setting down, amongst other things, ways and means of preventing electoroal violence (9) - Encouraging dialogue as a tool of solving political problems in the country (10) - Having coalitions or alliances of political parties (11) - Resorting to traditional modes of conflict management (12)The responses, were in some cases quite variegated, but the following were high on the list, that is in order of priority: (a) Educating the electors of their civic duties and responsibilities; (b) Educating politicians of their civic duties and responsibilities; Religious organisations have played some useful role, and so have NGOs, in tackling conflicts in the country. During the politically intiated clashes before the 1992 general elections, these groups played a key role in monitoring the situation, and offering material assistance where possible. This included the participation of such agencies as the United Nations Development Programme(UNDP). "Ater the initial emergency relief phase, the church organisations and NGOs, directed their energies towards community reconciliation and resettlement of clash victims on their lands." 40Religious organizations, by virtue of their extensive network of parishes and mosques, can play a salutary role in interpreting democratization ideas for the people at the basis, in raising consciousness and perhaps even in mobilizing the people. There is also the continued influence of African religions on the political culture.As for the overall vibrancy of the civil society, the observation of Naomi Chazan is in order here:As for the vibrancy of the civil society, the observation of Naomi Chazan is in order here: "The trend in Africa today is vey mixed. The voluntary sector has mustered sufficient strength to articulte economic grievances and to hasten the ouster of dictatorial and repressive regimes. But it has not necessarily carved out local arenas or established the rules for social interaction so vital for the construction of viable alternatives to authoritarian - style governmets." 42Self-governance entails capacity to solve conflicts, but this has not been evident in the 143 or so local authorities in the country. Apart from the absence of a clear undertaking of their role on the part of civic leaders, there is also the immense control from the central government.The Electoral Commission, on its part, has repeatedly issued, wherenever elections are round the corner, some rather innocuous statements urging all the players in the electoral process to eschew violence.6. METHODOLOGY (PROCESS) AND INHERENT WEAKNESSESLegal and Non-Legal Approaches to Conflict and Conflict ManagementIn the early states of any conflict, operators attempt to manipulate legal norms in the same way that they try to manipulate every other variable at their disposal. But still, even when operators seek to restrict normative expectations to their most immediate values and interests, the legal rule is generally not so elastic as to allow extreme arguments reflecting remote calcualtions of interest. The law might be ambiguous, but it is not devoid of interpretative exigencies that almost every user would find himself or herself constrained to observe in order to advance relatively credible arguments.A peaceful means of determination consolidates when target audiences and operators within a bargaining context envision that a set of common principles, norms, and procedures are available for setting the dispute and when they collectively accept that set of normative criteria as legitimate.One scholar has examined the problem through two windows, legal and non-legal, as follows: "Conflicts between individuals and between groups is endemic in all societies. However, not all conflicts get resolved through centralized and formal institutions of state, such as the police the judiciary. Conflicts within primary groups, such as families are more often than not resolved within the groups themselves and without reference to the state." 43Some anthropologists have argued that "primitive" societies cannot be said to possess law in that they lack an organized system of sanctions. 44 The most challenging contrary argument is that advanced by B. Malinowski who redefined law to mean "... the rules which curb human inclinations, passions or destructivee drives; rules which protect the rights of one citizen against the concupiscence, cupidity or malice of the other; rules which pertain to sex, property and safety."This enabled him to contend that all societies have "law", even those which do not use sanctions as a means of compliance, and which do not have a formal organization to secure compliance. Malinowski was challenged, however, by his critics for failing to distinguish between legal rules and other kinds of rules, such as moral and religious.The aforegoing does serve as an illustration of intense generation of heat but litle or no light. What is important here is the essence of law rather than its functionalist aspect. If the function of law is to bind the society into a community or to provide norms for resolving disputes between members of the community, it does not seem to matter whether there are sanctions behind it to secure compliance, or whether there is a formalized institution that makes and executes the laws. In any event, there can be other kinds of sanctions than force, and sanction need not be implemented by a small specialized group - that is to say, it can be undertaken collectively by a society.Despite the anachronism of some of the local customs, there are very useful human values embedded in the customary laws and traditional mores in Kenya. That these have not been given a secure place in the present legal system in the country is an unfortunate thing, something which needs correcting.Take something simple as proverbs and how effective these are in social engineering. One scholar concludes: "The oral nature of Bantu folklore emphasizes proverbs as a means of authoritatively expressing social values and traditions. This technique also finds expression in the law and proverbs are exten sively employed in the case of litigation before customary tribunals. Much of the argumentation presented to the tribunals is cast in the form of proverbs to lend greater weight and appeal to the reasoning being urged. The oracular character of proverbs renders them very supple and suscepti ble to broad and varying interpretation. This reinforces the tendency of the customary law to seek to arbitrate and compromise the individual case rather than to impose rigid rules surrounding the case in question. Bantu notions of religion and philosophy inhere in the fabric of customary law." 46Of course law has its own limitations so that it cannot be taken as the elixir in solving all societal ills. This has already been touched upon, but the following statement by an American law professor deserves some space here: "Law reflects but in no sense determines the moral worth of a society. The values of a reasonably just society will reflect themselves in a reasonably just law. The better the soceity, the less law there will be. In Heaven there will be no law, and the lion will lie down with the lamb. The values of an unjust society will reflect themselves in an unjust law. The worse the society, the more law there will be. In Hell there will be nothing but law, and the due process will be meticulously observed."
What follows are amplifications on the roles of some of the aforementioned actors.(1) The GovernmentHere we have adopted the definition of govenment as encompassing the three traditional branches, to wit: the Executive, the Legislative and the Judiciary.It is the responsibility of any government anywhere to protect its people. As such, then, it behoves the Government to put in place the mechanisms for dealing with conflicts (eapecially social and political) including electoral violence. The approch to this aim is outlined under each of the respective arms of government.The Executive(a) Adequate and Qualitative Security MechanismThe first thing is of course for the Government to ensure there is adequate complement of security forces and which see the need for respecting the rights and freedoms of the individual in the execution of their duties.For this to be possible, there is need to have sufficient staff which is well trained. For its overall orientation, it is entailed that there be commitment on the part of the leadership of the day to human rights, democracy and the Rule of Law. This will be leadership which will be guided by the precepts of good governance and accountability. Laws (here we are of course talking about good laws) which are not enforced remain useless; to be effective and earn respect, it is important that they (laws) be enforced by all the actors in the administration of justice - security forces, judicial officials and prison officials.(b) Training of Public Service Personnel on Human RightsA democratic administration can only be entrusted to democratic administrators. There is therefore need to inculcate a democratic ethic within the public service so that we have a humane administration which pays due regard to human dignity, peace and harmony. In such a situation, the administration cannot be used to initimidate and bully its people.(c) The Ethnic FactorThe Government has continued to, just like the colonial administration before it, resort to ethnicity as a prop of governance, based on Lord Lugard's "divide and rule" strategy.There are a number of ways in which the Government can blunt the ethnic factor from an administrative and legislative point of view. First, that all appointments in the public service are based on merit, and not on regionalist and ethnic considerations. Second, that discrimination based on ethnicity is officially prohibited and also legislated against. Third, that public education is offered by the Government on the perniciousness of negative ethnicity.(c) Teaching of Human Rights in SchoolsPresently no human rights education is taught in schools in Kenya despite the United Nations stance that the best way of ensuring the respect for human rights is at the early ages, that is, both at primary and secondary school levels. This is in accord with the first paragraph of the Preamble of the Universal Declaration of Human Rights which states that "recognition of the inherent dignity and of the equal and inalienable rights of all members of human family is the foundation of freedom, justice and peace in the world."At the International Conference on Human Rights, held in Teheran in 1968 to review the progress made since the adoption of the Universal Declaration of Human Rights and to formulate a programme for the future, it was resolved to call upon all States to ensure that "all means of education "be used to provide youth with the opportunity to grow up in a spirit of respect for human dignity and equal rights. It saw the basis of such education as "objective information and free discussion", and urged the use of "all appropriate measures" to stimulate interest in the problems of the changing world and to prepare young people for social life. (d) Electoral Commission • Reconstruction of the Electoral Commission to make it broad-based and accountable to all the players in the electoral process as well as to the people of Kenya. Plus enhancement of its independence and impartiality. • Enactment of an Electoral Code strengthening the autonomy and powers of the Elcetoral Commission -e.g. financial independence, control over the electronic media in ensuring truly competitive politics amongst the various political parties, powers to enforce security during elections and the control over political parties in the running of their affairs. • Conferment on the Electoral Commission of the power to prosecute election offences. • A review of the present electoral system which makes it possible for a minority government to be in power. • A review of the current law and practice on election petitions. • Strengthening of the resource base of the Electoral Commission in terms of equipment, facilities and human resources. (The latter includes the immediate appointment of the Director of Elections and his/her Deputy to enhance managerial capability of the electoral body). • The training of security officials involved in the electoral process.(e) Citizenry • Civic education (by both Government and civil society) • Creation of political consciousness based on human values. • Popular struggles for democracy. • Advancement of the economic, social and cultural rights of the disadvantaged and other casualities of society. • Self-governance at local level (especially the strengthening of local authorities). (f) Leaders • Inculcation of qualities of leadership and political morality as a first step towards the creation of a national democratic culture. • Seminars for leaders on good governance and accountability (both at grassroots, district and national level).(g) Donors • Continued support to the democratisation process, both morally and materially. • Permissible intervention aimed at creating a wider democratic space. • Facilitating dialogue between the Government, civil society and political parties. • Dialogue with civil society organisations/institutions. • Specific assistance to the electoral process especially in the area of election monitoring and the institutional capacity - building of the Electoral Commission.(h) Institutions of Higher Learning • Creation of centres of peacemaking and conflict resolution. • Ensuring academic freedom • Formation of staff associations • Formation of student associations • All governing bodies of institutions of higher learning to comprise differenct sectors of the academic community.
way one looks at it, there is no going over the fact that the practice of policing based on an "ethic of noble cause" or "obedince to orders from above " is intolerable and unacceptable, and has no place in a democratic policy subject to the rule of law. Additionally, the practice is clearly based on dangerously naive and simplistic notions of what "order" is under representative, responsive and accountable government.Policing is concerned with a particular form of order-social order, and that order is not uniformity, conformity, obedience and quiescence on the part of citizens. Neither is it tranquility and immutability in social life. Neither is it absolute or unconditional. Social order is a larger, more untidy concept which takes into account that fact of continuing social change. It is subject to the consent of the governed, and to their understanding that they are protected not solely by physical might against one form of disorder, but also through constitutional arrangements which take into account the complexity of social order and the diversity of disorder.The larger and more untidy notion of social order repudiates the idea that order maintained by repression, criminality and inhumanity is in fact order. It insists that order maintained by those means is the ultimate disorder because it creates a link between social order and atrocity.(b) Lawful Law and Lawless LawIn the recent by-election in Langata, a number of persons were arrested on the polling day for possessing dangerous weapons which it was allenged, were being ferried for the purpose of unleashing electoral violence. The majority were from the ruling party KANU who were nabbed at the insistence of vigilantes in the opposition camp; some elements in the opposition were also arrested but it seems that this was meant to give a resemblance of "balanced policing".Right from the start, top officials in the government, as well as the ruling party, went into full gear in foretelling mayhem during the elections from the opposition side. This was strange bearing in mind that it was the responsibility of the state to use its machinery to ensure that there would be no electoral violenc. This was also a tactic of deflating the persistent claim by one of the candidates, Raila Odinga, that there were elements being coached and given support to derail the by-election so that the results could be nullified, a situation which would have been salutary to KANU.And as the polling day approached, both the Government and the Electoral Commission spoke of heavy deployment of the security forces in the constituency, a situation which no doubt engendered fear on some sections of the Langata electorate; it was an intimidatory strategy, pure and simple.This brings to the fore the iniquitous piece of legislation which has, alas, been the "cause" for clobbering wananchi (and their leaders!) at political gatherings, to wit, the Public Order Act.There is no doubt that this is an act of Parliament which is patently unconstitutional and whose historical antecedents have very visible colonial stripes. Apart from the jurisprudential standpoint that one is not obliged to obey a bad law, it speaks volumes that an independent African govenrment would resort to colonial practices in curbing political participation.As we near the elections, it seems only too evident, even to a casual observer, that the political sky in Kenya is swollen with potential violence: it seems that the Government's intransigence not to concede to any reforms in the body politic can very well be matched by intolerance on the part of the populace through civil disobedience and even rebellious mass action. ö17 Jose Comblin, Being Human - A Christian Anthropology (Burns & Oates), 1990, p. 176.17A. Peter D. Riga, "Violence: A Christian Perspective", Philosophy East and West 19 (1969) Quoted by Ronald B. Miller "Violence, Force and Coercion", in Jerome A. Shaffer, ed. Violence (New York: David mcKay, 1971), p. 12.17B. Hannah Arendt, On Violence (New York: Harcourt, Brace & World, Inc., 1970), p. 87.17C. John Joseph Okumu, "The By, election in Gem: An Assessment", East Africa Journal, vol. VI No. 6, June, 196918 Gurr, T.R., Why Men Rebel (Princeton, N.J.: Prenceton University Press, 1970), pp. 168-177.19 Claude Ake, "Explanatory Notes on the Political Economy of Africa", The Journal of Mod ern African Studies, Vol. 14, Number 1 (March 1976), p.10.20 Ibid., p. 4.21 James O' Connell, "The Inevitability of Instability", The Journal of Modern African Studies, Vol. 5, Number 2, (1967), p. 182.22 Ake, "Explanatory Notes on the Political Economy of Africa", The Journal of Modern African Studies, Vol.14, Number 1, (March, 1967), p. 922A. "Poloitical linkage in Kenya: Citizens, Local Elites and Legislators" - Joel D. Barkan & John J. Okumu. Paper prepared for delivery at the Seventeeth Annual Meeting Association, September 1, 1974 (appearing in American Political Science Review, vol. 70 No. 2, 1976)22B. Ibid.23 Cap. 66, Election Offences Act, Laws of Kenya.24 Cap 67, Witchcraft Act, Laws of Kenya.25 Daily Nation, 2 January 1993.26 Study appearing in Guy Hermet, Richard Rose & Alain Rosiquie (eds.), Elections Without Choice (The Macmillan Press Ltd., 1978).27 Paper presented at a Workshop in Nairobi in 1993 on the theme "Transiton to Multiparty Democracy in Kenya".28 In a footnote, the two scholars state: "That members of peasant societies are more aware of the activities of their political leaders than members of industrial societies should not be surprising when one remembers that the activities of such leaders are likely to be more visible in the former, owing to the less complex social structure of the community". (Barkan & Okumu, "'Semi-Competitive' ®‹$ Elections, Clientelism and Political Recruitment in a Non-Party State: The Kenyan Experience", in Guy Hermet, et al, Elections Without Choice. See also Fred Hayward, "A Reassessment of Conventional Wisdom About the Informed Public: National Political Information in Ghana", American Political Science Review, LXX, No. 2 (June 1976)pp. 433-451.29 Barkan, J. (ed) Politics and Public Policy in Kenya and Tanzania (New York: Praeger, 1984).30 Ibid, pp. 29-30.31 Nicholas Wanyama Okada v. Moffat Kamau Mburu Mugwe (Returning Officer) & James Charles Makhwanga Osogo, Election Petition No. 26 of 1979.32 The case referred to here is Simon Musau Kioko v. Galgalo & Another in Election Petition No. 24 of 1974 (also quoted and accepted in E.P. No. 6/79 - Kiano v. Matiba & Another).33 Okada v. E. Mburu & Osogo, Election Petition No. 26 of 1979, 1979 Election Petition Judgement - James Osogo (Stellascope Publishing Co. Ltd., 1983), p. 46.34 LL. B. Thesis, University of Nairobi, 198435 Francis Wambua v. Galgalo (Returning Officer) and Simon Kiilu (ElectionPetition No. 20 of 1974).36 Nyagah, Rachel M. (1984), Oathing in Elections (LL.B. Thesis, University of Nairobi).37 Election Petition No. 16 of 1974.38 The "Ngei Amendment "Bill was published within one day and underwent all the three stages within one day. The passed act was also to have a retrospective effect fro January 1975.39 A poweful council - some kind of tribal assembly of the Meru.40 USAID/Kenya's Strategy Plan for the period 1996-2000 titlied Democracy and Governance - The Strategic Plan - Effective Demand for Sustainable Political, Constitutional and Legal Reform Created.41 This includes voluntary organizations such as NGOs, trade unions, student bodies, professional organisations, business organisations and community - based organisations.42 Naomi Chazan, "Africa's Democratic Challenge", World Policy Journal, Spring 1993, p. 283.43 Y. Tandon, "Diplomatic Anthropology - Impact of African Ethnography on the Study of Interna tional Relations", in Yashpal Tandon & Dilashad Chandarana, eds., Horizons of African Diplomacy, Vol. 1, (Nairobi: East African Literature Bureau, 1974), p. 180.44 Adamson Hoebel, E., for example, defines law in the following terms: "A social norm is legal if its neglect or infraction is regularly met, in threat or in fact, by the application of physical force by an individual or group possessing the socially recognized privilege of so acting."45 Malinowski, B., "Introduction"to Ian Hogbin, H., in Law and Order in Polynesia, Christophers, London: 19334, p. öpolicemen and wananchi (Swahili word for citizens). When contacted, the Eldoret police chief declined to comment but said the decision to disrupt the meeting was meant to restore order as it was not licensed.Again during the same week of ignominy, that is on April 14, police disrupted a peaceful gathering at the home of Kitui Central MP Charity Ngilu, a presidential hopeful in the forthcoming general elections. Anti-riot police in three Land Rovers stormed the Ithookwe Village home of the Kitui legislator and broke up a leaders' meeting. About 200 of her supporters fled in all directions when they sighted the security men. Mrs Ngilu locked herself in the house for hours to avoid arrest. She, and some of her supporters, had previously been charged in a court of law for allegedly holding an illegal meeting.The disturbing events came only two months after two MPs, Paul Muite of Kikuyu Constituency, and Kiraitu Murungi of Imenti South in Meru, along with members of the unregistered Safina party, were attacked and beaten up by the police in Mukurweini, Nyeri. Up to now, none of the police officers involved in the Mukurweini incident has been arrested, neither in the Eldoret one. The intransigence of the Government was again accentuated when it used force to prevent the holding of a National Convention Assembly meeting at the historically important Kamkunji grounds in Nairobi. On 3rd May, 1997, the security forces sealed off the area and engaged wananchi in a day-long confrontation by the use of rubber bullets, trudgeons and canisters of teargas.Against all good sense in the circumstances the Government went on to cancel the scheduled public rally on the premise that it was not licensed. The organisers of the National Convention (conmprising a cross-section representation of NGOs, religious organisations and pressure groups, as well as the pro-democracy political parties) had called the meeting in order to apprise wananchi of the deliberations of the first session of the national Convention held in Limuru in April. To all intents and purposes, the meeting was to be a peaceful one, aimed at showing and galvanizing solidarity among all the communities of Kenya and all sectors of the national life. But the Government would not allow the holding of the scheduled meeting.A number of people were injured during the skirmishes between the security forces and the large crowds which had turned up for the meeting. The regular police and the dreaded General Service Unit (GSU), together with a sizeable presence of plainclothes policemen (Special Branch and Criminal Investigation personnel), also aided groups of thugs reportedly hired by the ruling party KANU to unleash terror on those daring to go to Kamukunji for the advertised meeting. These ruffians (that is, the KANU hirelings) were armed with all types of offensive weapons, which included whips and clubs studded with nails. At one point, that is near the bridge on the Nairobi River leading to the famous bus park, popularly known as Machakos "Airport", the KANU myrmidons, under the shield of armed policemen, lit a tyre fire in the middle of the road and were enabled by the security forces guarding them to prevent the pro-Convention human column of activists from crossing to the other side. A stampede and a cacophony of chaos followed, and it was during this most in auspicious moment that the author of this paper tasted a dose of teargas.The Kamukunji incident was a manifestation of crocodile-hide insensitivity to pupular will by a government long gone berserk - completely, it seems - unschooled to the basic norms of democratic principles and practices. A follow-up pro-democracy meeting at Central Park in Nairobi was violently dispersed by the police with a spill-over of grevious bodily harm, and even death (mainly engendered by the security forces) and looting of property.Although the actions of the police in the above situations might be explained as a manifestation of an overzealousness in the performance of their duties, an allowance must be made for official support at the highest level for this very reprehensible behaviour. Some people have given the tag "state terrorism" to this state of affairs. The role of order in governance is increasingly coming under question. The state, as a soverign Order, is expected to regulate more aspects of human interaction than ever before in the history of humanity. Order is imposed on human action, often eliminating choice and free will (and therefore the attempts to establish order become the subject of intense conflict). The order established within states today seeks new forms that promote good governance. Extreme forms of state order, seen in totalitarian systems, give way to institutionalized participation that is often unable to preserve order. Even established forms of state order, as seen in areas as diverse as Russia, Yugoslavia, Albania, Zaire, Somalia, Liberia, Peru, and Algeria, end up in such a high degree of concentrated power that they implode, consuming the collapsed state and its fragments.The work of political science is to conceive of effective orders that will enable goals to be achieved and productive activities to be performed within the constitutional structures of states and the institutionalized interaction among states. There are fields of activity to be invented as state and world citizens expect more from the national and international orders. Just as social contract notions came to the fore to meet a need for the conceptualisation of national insurgence over monarchies, and political development notions responded to the call for conceptualizing the anticolonial takeover of " the real country" over "the legal country", so today new ideas are required to deal with such issues as collapsed states, cooperation under anarchy, alternative dispute resolution, urban violence, and many other contradictions at the crossroads of conflict and order: 2. THEORY OF CONFLICT AND CONFLICT RESOLUTION(a) Confict as a ConceptWe start with two seemingly simple statements, to wit: confict tends to persist overtime, or more bluntly, conflict breeds conflict.The underlying assumptions are that societies and social gruops have characteristic patterns of conflict behaviour which exist in complex interaction with one another and that these patterns tend to persist over time. Hence, the conflict process is endemic to society, follows its own internal logic, and is largely self-contained and self-generative.Essentially, conflict is a two-party process, that is a categorization of two mutually exclusive groups, authorities (or regimes) and challengers. According to the Collins Dictionary of the English Language," Conflict "means" a sturggle or clash between opposing forces".Johan Galtung defines "conflict" as a property of a system of action, namely, the property that there are incompatible goal states in the system so that the realization of the goal will exclude, whoolly or partly, the realization of the other.1 If these goals are held by the same actor, the conflict is an intra-actor one and is often referred to as a "dilemma", as a problem of individual choice. If they are held by different actors, the conflict ia an inter-actor one and the two (or more) actors are said to be in conflict. The conflict may or may not be perceived, and the goals may be subjectively defined valves or objectively stipulated interests.There is another categorization of conflict, namely, symmetric and asymmetric conflict.A symmetric conflict occurs between actors of roughly the same rank. This implies two things: that they are more or less of the same kind and that they have, roughly speaking, comparable properties and equal resources at their disposal. An asymmetric conflict, on the other hand, is between actors that do not have the same resources at their disposal, or that are even of different kinds, as in the case of the dichotomy between slaves and slaveowners. öKenyans no doubt have an idea of an ideal form or image of criminal justice. Only the state, the law, has the right to use force. The state is supposed to have a "monopoly of legitimate violence". And the only rightful use of force is against force; the only proper use of violence is against violence; the only proper use of law, is against the lawless.But as every student of the political landscape in Kenya will tell you, the reality, of course, is another story. Our Kenyan history is rich in forms of lawlessness, and not all of these stand outside the legal system as enemies of "law and order". Many, in fact, take place inside the legal system itself, or as aspects of the systems-police brutality and murder, for example. This lawlessness masquerades as law, or acts as the secret supplement to law, or replaces law.The argument frequently emerging is that these outbreaks of violence are reactions against official neglect, corruption, or incompetence; sometimes they imitate law (holding "trials" and passing judgements), some times they set up as rivals to other official system and norms. Needless to state, this is the stuff from which political cataclysms erupt.(c) Retrospect and ProspectElectoral violence can best be tackled in a context of a national democratic culture by resorting to both legal and non-legal measures.This situation does not obtain in Kenya and the truism is daily emerging that multi-partyism in itself does not mean democracy, although it is a basic component of liberal democracy. Hence the need to look into viable ways and means of reducing (if not ending altogether) the incidence of electoral violence which no doubt adversly affects the electoral process.Conflict and order are both signs of the times and eternal value.Conflict is the basis of politics and politics is managed conflict. Institutionalized conflict is the nature of elections, and the source of the legislative and judicial order, but other forms of governmental change also involve less orderly conflict.Conflict between positons is the basis of democratic debate and the open society holds the truth appears only after conflicting positions are fully confronted publicly. When this debate is not permitted, stonger forms of conflict appear within states, but directed against the government, which in turn harnesses conflict to repress its citizenry. öTwo views are given here, both products of Western scholarship, on the role of conflict in African thought and society.The first is the viewpoint that the ommnipresence of conflict in traditional African thought patterns, value systems and forms of political and social organisations, is a function of the fact that power is the major reference in the culture's inner normative order. This is the observation of Adda B. Bozeman and is steeped in the assertion that power in Africa is always and everywhere, in the final analysis, associated with magic. 12 He continues: "It (power) is usually presumed to be aggressive and malevolent, whether emanating from spirits or from witches or other human beings. In a system of mystical participation in which power is pitted against counterpower, opposition and antagonism become the ruling dy namics. All relationships between tangible and intangible, human and nonhuman entities are thus the definition of implicit relations. The dominant human dispositions that keep the system going, even as they brought it forth, are insecurity and fear" 13.Another writer has averred that the argument that there is nothing "uniquely new" about African patterns of violence is tenable if the definitions for "coup d'etat", "civil war" or "international war" (to give a few illustrations) are sufficiently loose, and if each of these occurrences is viewed in relation not only from other acts of violence with which it usually is conjured, but also from peculiarly African milieu in which it is encountered. 14Yet the view continues to be nurtured that modern approaches to conciliation and the lessening of tensions in inter-African relations are as uniquely African as the manifestations of conflict and hostility to which they are addressed. This is encapsulated thus: "Africans are more at ease with conflict in it's multiple manifestations than their contemporaries in Europe and the United States. Furthermore they tend to view it positively, as a source of major values and as a determining or intergrative factor in life, while denizens of the West ascribe essen tially negative aspects of its incidence". 15 Much as events and happenings mus be analyzed in a concrete situation, there is need to be cautious for there doesn't seem to be scientific/empirical evidence to support the aforegoing claim. If any thing, the approach rekindles Leopld Sedar Senghor's version of Negritude: "Consider then the white Europeans standing before an object, before the other. A man of will, a warrior, a bird of prey, a pure act of watching, the white European distinguishes himself from the object. He holds the object at a distance, he immobilizes it, he fixes it. Equipped wit his instruments of precision, he dissects it in a cold analysis. Moved by the will to power, he kills the other and, in a centripetal movement, he makes it a means to use for his own practical ends. He assimilites it... The black African is first of all in his colour as if standing in the primordial night. He does not see the object, he feels it..." 16It is not the intention to get into the gladiatorial controversy which has surrounded this viewpoint since Senghor uttered it over 30 years ago, save to say that there are nevertheless some uniform universal approaches to conflict management. This point will be revisited when examining the underying hypotheses of this paper.(e) On Electoral ViolenceElectoral violence can be manifested in various situations - political and non-political: political elections, trade union elections, co-operative society elections, elections in sports clubs, and elections in business organizations such as companies.For the purpose of this study, the concentration is on electoral violence in so far as this impinges on the presidential, parliamentary and local government elections in Kenya as well as inter-party elections and the nomination of candidates. This covers the period before and after the actual elections.The deep and fundamental involvement of parties in the electoral process leads one to recognize parties as more than just another form of private interest group. We can take a leaf out of the American experience. In one of the most important series of Supreme Court dicisions in US history, party primaries were established as part of the total formal election machinery, thus bestowing on parties much of the aura of formal governmental organisations.Local Government ElectionsLocal authorities form an important core of government structure.Local government in Kenya can be traced as far back as 1924 when it was practised under the nomenclature of Local Native Council. Among the aims of the establishment of the councils was to encourage and develop a "sense of responsibility and duty towards the state among the chiefs, and elders of the tribes and among the more thoughtful the native population".Sir Mitchell, then the Govenor, advised Jomo Kenyatta upon return from England in 1946 that "he (Jomo Kenyatta) should begin by seeking election to the Local Native Council of the area where he proposed to live and make a start in local government" if at all he wished to take part in politics. "Thus, local government was to form a jumping pad for national elective positions. This was not the route Kenyatta chose but many a politician learned the ropes of political skills in local authorities.However, this type of self-governance has never taken firm root and remains mired in execessive control by the Central Government, with very little leeway in making an impact as a motor of development at local level.However, the elections at local level continue to generate a lot of interest and are also subject to the same political whirlwinds as the other elections (that is presidential and parliamentary) which are held concurrently as general elections.The term violenceWe begin with the etymology of the word "violence". The word is derived from the Latin violentia, which means vehemence or impetuosity. It entails the exercise of physical force as to injure or damage persons or property. As we shall see later, there is also spiritual injury.One writer has seen violence through the following lenses: "...Sheer violence has always existed as it exists today. The human body is always available as a toll for the exercise of violence against powers and institutions. The body itself is a weapon. And it is capable of inventing an infinitude of othe weapons, to extend the aggressive capability of its mem bers. This violence can be used without reason, without intent. It can proceed from affective or Kenyan context, and most of Africa for that matter, there are cultural factors to consider as far as these impinge on the generation of conflict, as well as the palpable impact of colonialism.Intense ethnic conflict is one of the reasons which has contributed to the underdevelopment of Africa. This aspect of the African life was very much aided and abetted by the colonial regimes in the various parts of Africa. What's more, by its very nature colonialism engendered a culture of violence steeped in intolerance and denudation of traditional values.Prof. Claude Ake correctly points out that colonial politics was power politics in the most literal sense of the phrase. The colonial political culture to which the nationalist leaders were socialised was one characterized by a lack of public-spirited restraint in the quest for, and the exercise of power.Accordingly, the inherited political tradition was not one that enthused the African leaders in being interested in the fine debate about morality of power, the limits of political obligation, or indeed in good government. This situation no doubt served as humus for one-party system of politics and autocracy. Ake observes: "If we want to really to understand the single-party system, we must appreciate the significance for political competition of the statism of African societies, and the contradiction in their material base. The newly independent nations were and still are highly statist. This is the legacy of the colonial regimes which rested on the determined and sometimes brutal use of force, thereby ensuring for those who were exploited that their only effective choice was submission." 19 The colonial regime in Kenya used ethinicity as a tool of divide and rule, and of necessity, as a strategy of effective control. But what lies beneath the surface? The postulation that a conflict is bound to be influenced by the geopolitical, economic and sociological conditions surrounding the actors. Just as most peace theory deals with the absence of personal violence, so most conflict theory is developed on the assumption of symmetric conflict. But contrasting with personnal violence is the phenomenon of structural violence, that is the dominance of one group over the other, with subsequent exploitative practices. This leads to the conclusion that the general formula behind structural violence is inequality.From the point of view of avoiding direct violence, there are three approaches: efforts to ward off conflicts at an early stage or at least to prevent them from being perceived; efforts to descalate conflict; and efforts to resolve the conflict.Conflict management means conflict regulation whilst conflict resolution relates to the effort to attack the conflict at its roots, at the incompatibility level.The nature and extent of conflict depends on the causes and the degree of intensity. The extent of open conflict depends on the numbers mobilized by the challengers and on how they persist. Characteristically, action by challengers begets immediate response by authorities: the greater the extent of the challenge, the more intensive the response. But a sensible regime is bound to behave otherwise: faced by massive protest, cautious authorities are more likely to compromise than to risk further alienating their opponents with harsh tactics. The bottom-line is really that dictatorship is not a viable form of government.One form of conflict, and germane to the theme of this paper, is political conflict. This, distilled to its basics, is contention among collective actors over structures, incumbents or policies of a political regime and is a ubiquitous feature of political life.The concern here is with open political conflict, defined as physical confrontations between collective actors over politicalissues. These manifestations of political conflict include demonstrations, riots and clashes, general strikes, coups d'etat, clandestine armed attacks, and guerilla and civil warfare1A. The boundary which distinguishes these forms of political competition, such as elections and interest group action, is the use or threat of violence by one or both parties to exact concessions or compliance from their opponents.As to the paradoxical nature of political violence, Conor Cruise O'Brien has summed it up neatly, thus: "People who dislike anything to do with violence do not like to be reminded that hteir own habitural assumptions may be feeding the violence. Politicians are unwise to remind people who have votes of things they do not wish to be reminded of 2".When a conflict arises, it is always difficult ot isolate and identify the real causes. This difficulty is an important source of uncertainty. Often equlally difficult is the determination of the basic means for resolving the dispute because of the participants' divergent demands and expectations, and often the several alternate procedures and strategies each actor contemplates rarely coincide with those of his or her opponent. The climate that such differences and lack of common ground generate is often one of apprehensiveness if not acutally turbulence. When actors start struggling against uncertainty, they tend to take the steps they think are more adequate to their interests and ideologies. That is to say, actors attempt to impose their own particular conflict resolution approach. While some actors seek negotiated outcomes, others prefer to act unilaterally. Unilateral action, however, involves high risks and costs and is difficult to justify; consequently, collectivebargaining is the most frequently adopted approach for resolving conflicts. This approach, however, is potentially effective only when all parties realize that they need common creteral around which to link issues and build consensus. (b) Existing Empirical DataThree heads will be examined here, namely: (aa) A study by Professors Joel D. Barkan and John J. Okumu titled "Semi-Competitive Elections, Clientlism, and Political Recruitment in a Non-Party State: The Kenyan Experience"; 26 (bb) A research paper by Humphrey Tirimba titled "Ethnicity, Ethnic Conflicts and Voting Behaviour: A Case Study of Molo Constituency", 27 and (cc) An Analysis of some Election Petitions.(aa) Study by Joel Barkan and John OkumuThis was an extensive field study involving some thousands of respondents. The following are the major findings: (i) [As in most single-party systems in the developing world], the primary purpose of elections in Kenya is not to provide voters with a choice of policy alternatives or governing elites, but to recruit new individuals into the present ruling elite, promote other individuals within the elite, and to renew the legitimacy of the elite and its mode of governance in the minds of the electorate. (ii) Right from the start, electoral politics in Kenya developed on a highly parochial basis emphasiz ing ethnic ties and the personal qualities of the individual leaders and attempting to organise district machines on their behalf. (In the first parliamentary elections in which Africans par ticipated, that is in March 1957, it was noticeable that although the constituenceis encom passed several admininstrative districts, the boundaries between them also conformed to the boundaries between Kenya's major ethnic groups). (iii) Contrary to conventional wisdom, members of peasant societies frequently have a much higher knowledge of political events, including who their elected leaders are and what they do, than members of the public in politics, presumed to be more developed. 28Unfortunately, the study does not, to any significant extent, focus on the nature and incidence of electoral violence in Kenya's political history. However, the fundamental dynamics of the study will hold true even after the re-introduction of multipartyism in Kenya in 1991.In a later study,29 Barkan accentuated the context of the country's electoral process in a similar vein. Referring to the development of patron - client linkages which places a strong emphasis on the "distribution" of state resources to those supporting the party or regime in power, Barkan sees these features of the electoral process as ambiguous and self-destructive in the context of Kenya: "With each successive election more and more communities become more effectively linked to their government via a network of patron-client hierarchies or machines... [by which] those at the pe- riphery gain access to those at the top... as more and more communities make effective demands on the centre the amount of resources available for allocation to each community will be reduced and the intensity of political conflict... will increase." 30(bb) Tirimba's Study on Molo ConstituencyThe study was undertaken prior to, and immediately after, the 1992 general elections. Molo was chosen in view of the area being the vortex of the extensive occurence of ethnic oriented clashes which had flared before the general elections mostly in Rift Valley Province, and other areas of Western Kenya.A number of conlusions emerge from this study, as follows: (1) Beyond voting for the opposition candidates, "the move towards democratisation was distorted by ethnicity and ethnic conflicts Another thing, and this will be elaborated on later under the head "Methodology", is the fact that bargaining may, in some instances, be grounded exlusively on non-legal factors or perspectives.(b) Conflict ResolutionTwo questions arise: "What is to be done?" , and "What ought not to be done?" There ar choices, each with different results.First is the use of violence. The rationale for the use of violence in conflict situations is that it compels or deters. Regimes which respond to challenges with deadly force expect to minimize the extent of future challenges. However, there is a counteragument that policies of repression on the part of authorities increase future mobilization.Secondly, there is the option of non-violence. This comprises "those methods of protest, noncooperation and intervention in which the activists, without employing physical violence, refuse to do certain things which thery are required to do; or do certain things which they are not expected, or are forbidden to do3.In a review of the works of Erkson and Sharp, 4Lewis Lipsitz and Hubert M. Kritzer concentrate their analysis on the following thematic strand: The role of psychohistory and the interpretation of Gandhian nonviolence and its significance to the students of conflict resolution. "Erkson's book calls us back to a reconsideration of the meaning of the meaning of nonviolence, both formally and politically. Erikson'sacknowledges, as Gandhi came to acknowledge, that nonviolence must be a method of the strong, not the weak - that it must develop on courage not cowardice or fear."5The two reviewers conclude: "Political power is at least partly rooted in habitual acquescence to authority figures. Unerstanding the roots of much obedience can therefore provide a method of moving from violence-prone socialization to one which emphasizes conflict resolution through non-violence. The healthy istrust of authority that people outht to grow up with in democratice societies could well be supplemented with a greater sophisticated about techniques of dissent, short of violence. The greater the number of our citizens who are familiar with the possibilities of non-violent pro test, the more energetic, yet democratic dissent and conflict resolution may become".6The third choice is that of mediation which is a complex social process which facilitates interpersonal, intergoup and international negotiations. Mediation as a strategy to facilitate agreement plays an intergral role in the resolution of conflicts in the public and private sectors.The techniques utilized by mediators in facilitating negotiations are numerous and divers. They include, for example, setting up the negotiation separating the parties, providing advice to an inexperienced representative, offering proposals, serving as a sounding board for both sides, protecting the negotiators from third parties and staying out of the way.Two of the essential charateristics for successful mediators espoused by several writers are perceived impartiality and ability for success. It should be noted that these characteristics relate to how the mediator is perceived by negotiators, not the actual mediatr's performance.Indeed, these perceived characteristics may have a dramatic effect on several aspects of the negotiation process. As to whether courts should make orders for oath clearing ceremonies, as a way of ensuring communal harmony, there is a divergence of opinion. For example, E.M. Kalali maintain in her study titled Oathing as an Election Offence: An Analysis of the Judicial Approach to the Problem,34 that courts should refrain from issuing cleasing orders because this is doubtlessly confusing, giving credence to the existence of witchcraft. This is as a counter to the reasoning in Kiilu's 35 case wherein it was stated: "It should seem a cleansing ceremony is now necessary to resotore the people of this constituency the freedom of choice which the constitution gives them".Another research holds a contrary view, observing that traditions serve "a very central aspect in the settings of the African community". 36 She is receptive to the idea of cleansing ceremonies, pointing out: "The High Court recognizes that peace and unity can be disrupted when oathing has taken place in a constituency. To maintain this peace and unity, cleansing ceremonies are orderd to take place so that people do not remain divided due to conflicting interests (sic)".As regards the element of intimidation, the petition Raphael Samson Kithika Mbondo V. Luka Galgalo and Paul Ngei 37 is usually cited as having been boldly decided notwithstanding that it involved a Cabinet Minister.The facts were briefly that the petitioner intended to stand for the Kangundo parliamentary seat in the general elections of 1974 but that circumstances forced him to withdraw his candidature. He alleged that he was illegally and improperly prevented from contesting the elections by the respondent (Paul Ngei) who personally threatened him with danger to his life unless he (Mbondo) withdrew from the race. Consequently, that is arising from Mbondo's non-participation in the electoral process qua parliamentary candidate, Ngei was the sole candidate so that he was returend to Parliament unopposed as Member of Parliament for Kangundo.The petitioner averred that the conduct of the respondents (that is including the returning officer) constituted the offence of undue influence under Section 9 of the Election Offences Act.In allowing the petition, the court observed: "He (the second respondent) was in our opinion acutely conscious of his high position in the govern ment and it was this which moved him to a sense of outrage when he learnt that he was to be opposed by the petitioner who was relatively unknown to him and to whom he slightingly referred to as a littleman..."The election of the Minister was nullified and he was found guilty of an election offence thus disqualifying him from contesting an election in the next five years. However, this was not to be. An amendment to the constitution was bulldozed through the National Assembly so that the President could extend his clemency to election offenders. 38(c) Field StudyA basic survery was undertaken with a view to obtaining from a wide spectrum of Kenyans - either through informal interviews or by way of a questionnaire - data relating to the incidence and nature of electoral violence and how this can be best handled within the context of conflict prevention, management and resolution. Within the context of time and reource constraints, it was not possible to apply any particular quantitative statistical method. However, from the random sampling employed, that is involving 250 respondents, a number of observations can be safely made. These are made hereinunder under the respective heads:Nature of ViolenceFrom a table of various forms of electoral violence, the following types were identified:(a) Physical AssaultThis topped the list from over 150 respondents, with about 45 per cent indicating having witnessed it, and in some instances more than once. There was of course the limitation in terms of definition: one respondent puting down "throwing stones" against the category shown as "Other" but not ticking "Physical assault".(b) Intimidation through ThreatsThis was reported by over 35 per cent of the respondents interviewed with some of them indicating having witnessed the incident more than once.Admittedly, there was the problem of clarity, that is the survey did not make it evident the nature of threats entailed in the intimidation.(c) Psychological FearAgain, it was not clear what this entailed, except the example given, and which was in some ways a leading one but unmistakably clear, that is: "heavy presence of security forces on polling day." A good percentage of respondents, about 35 per cent reported having witnessed such a situation, with one respondent (a court clerk aged 33 years) having witnessed the incident four times in Vihiga constituency where he has voted in several general elections. Some of the respondents reported more than one occasion in witnessing heavy presence of security personnel at polling stations.(d) Prevention of Voters from entering a Polling StationAbout 25 per cent of the respondents reported having witnessed this form of electoral violence.(e) Spiritual Fear e.g. WitchcraftOnly less than 10 per cent of the respondents reported having witnessed incidents where witchraft was practised with a view to influencing electors to vote in a certain manner. Methodological ProblemsApart from some of the definitional problems as observed herinabove, there was also the unintended impression that the questionnaire only referred to forms of electoral violence on the polling day, which was in fact nto the case. The study also intended to establish the place of electoral violence before and after the elections.Actors in the Electoral ViolenceSecurity forces featured most, mainly the regular police, the General Service Unit (GSU), and the Administrative Police. Nobody ticked Special Branch, although it is logical to assume that in any polling station, or any major gathering, there is bound to be a representative of the Special Branch. (c) Enacting an electoral code setting down, amongst other things, ways and means of preventing electoral violence; (d) Imparting human rights education on security forcs, and (e) Drawing up a code of ethics for political parties.It was quite a demanding job collating the responses, but a general picture did emerge. The other items of support, were the "surmounting of actual and potential ethnic prejudices and tensions" and" enhancing the capacity of conflict prevention, management and resolution."As was the case with the most responses, there were respondents who were quite innovative as witness the respondent who penned this: "Specify what traditional means as it may include a 'Njuri Ncheke' 39 decision and/or at worst witchcraft".ConclusionsThe following broad conclusions can be drawn:1. Electoral violence is a familiar feature in Kenya's electoral process - that is during party elections, nominations, and general elections - both before and after the events.2. The prevalence of electoral violence within the country's body politic is a composite malaise of various factors which are steeped in lack of sufficient political education, and lack of solid sense of civic duty and responsibility on the part of both the electorate and political actors.3 There is presently no effective machinery of preventing, managing and resolving conflicts which engender political violence and of which electoral violence is a feature.4. In preventing, managing and resolving conflicts, both legal and no-legal approaches are applicable.5. CONFLICT RESOLUTION ACTIVITIESOn a national level, the national government has tried to grapple with political violence mainly through invocation of law and order, a process, which as will be seen later, is tantamount to a palliative rather a cure, in other words, dealing with the symptoms rather than the disease itself. Accordingly, the cumulative apparatus has consisted of legistative, administrative and judicial measures. Two major pieces of legislation obtain, namely, the Election Offences Act and the National Assembly and Presidential Elections Act and, of course, the Constitution, which albeit not specifically laying down the right to vote, provide for some safeguards in the electoral process.The provision for sanctions against election offences was first legislated in 1958 as one of the measures of coping with electoral malpractices, soon to be followed by the other statute to regulate the procedural aspects. No premium, as we shall see later, was placed on offering civic education to the citizens (wananchi) as the best bulwark against abuses and misuses of the electoral process, flaws which include electoral violence.Although there has been political violence in the eastern region of Africa, which includes Kenya, mainly of an ethnic and/or clan nature, no co-ordinated regional machinery has been put in place to deal with the imbroglios which have in the past riddled, and continue to engulf, such countries as Sudan, Ethiopia, Somalia, Kenya and Uganda.Within the traditional milieu, political violence has been, to a certain extent, an importation - dividing family members, villages and clans. This has been accentuated by the corrupt practices which have rendered elections a "money-spinning" industry exemplified in the culture of "eating". Finally is the search for a political culture which nurtures stable democracy. The following observation is apt in this regard: "The statesmen who attempt to create political democracy often concentrate upon the reation of a formal set of democratic governmental institutions and the writing of a constitution. Or they may concentrate upon the formation of a political party to stimulate the participation of the masses. But the development of the stable and effective democratic government depends upon more than the structures of government and politics: it depends upon the orientation that people have to the political process - upon the political culture. Unless the political culture is able to support a demo cratic system, the chances for the success of that system are slim".7(c) Can ther be Legitimate Violence?In all major revolutions and revolts world over (including the Mau Mau nationalist movement), there seems a ready salute to violence although nobody wants to be loud-mouthed about it.8From a jurisprudential point of view, the legal philosopher Ronald Dworkin considers that the linkage between law and coercion is justified when coercion is used by the state to maintain individual rights.9 But more often than not, coercion, under the guise of "law and order", is justified by authoritarian regimes for ther undeclared object of political survival, pure and simple. O'Brien has no doubt that violence can be legitimate. He opines: "It is quite true that violence is institutionalized in all forms of organised society. Only an anarchist, only a man or woman who would in no circumstances invoke the law or call in the police, can consistenly claim the name of pacifist. It is also true that, since all forms of organized society that we know - or that man ever has known - contain great inequalities of power, wealth, and status, and since these inequalities are in the last resort defended by violence, anyone who lives in any such society and accepts its rules is condoning some degree of oppressive violence."10The political scientist goes on to point out that we can't, without hypocrisy, claim to rule out now all violence, either inside human institutions or as a means for changing them. He adds: "We cah continue to try to reduce the incidence of violence in bothe senses. This means both greater activity in the criticism and peaceful change of our institutions, and a no less critical and suspicious attitude towards those who offer change by violece".11(d) Conflict in the African ContextAre African patterns of conflict and accord, and of war and peace, sufficiently similar to those recorded in the West to allow for secure accommodation to the theories of conflict fashioned in Europe and North America?Or do comparative studies indicate, instead, that the African experience of dissension, hostility and strife, cannot be intergrated in the Western conceptual references because it offers different, perhaps entirely new, perspectives on these perennial human concerns? Two institutions need a special mention, that is the Judiciary and the Electoral Commission.Going through the election petitions to date, it is evident that no action, by way of a prosecution, has even been taken by the Attorney-General's Chambers despite some persons having been found guilty of having committed an election offence or offences by the electoral court.As for the Electoral Commission, its lack of majority acceptance, in view of it being perceived as lacking independence and impartiality, renders it ineffective as a ralling point for conflict resolution.The Government's lack of commitment to the democratisation process makes official handling of conflicts unsatisfactory: there is need to embark on democratic institution which would be involved in, amongst other things, imparting human rights education on the provincial administration and the security forces. The donors seem to be riding an ambivalent wave: on one hand seeing the salutariness of offering assistance in the betterment of the electoral process, and reluctance on the other, on account of the uncertainty/uneasiness of participating in an electoral process which gives the appearance of being rotten to the marrow.Be that as it may, it behoves both the Government, the Electoral Commission, civil society and other actors to instil on wananchi the much desired enlightenment on the electoral process. This would involve implementing public education and information programmes to make the electoral process known to the public, particularly those persons and groups most likely to experience difficulties in exercising their democratic rights.7. PROGRAMME ACTIVITIES(a) Some Preliminary RemarksKenya has continued to exhibit manifestations of unmitigated political violence; this has to be staunched and the obvious question is, how?First and foremost, the prevailing state of insecurity countrywide has to be effectivly tackled for this is sure fetile humus for chaos and even national disintegration.Secondly, the Government of the day must be seen to be really committed to democratic precepts as opposed to the present water-and-milk situation whereby statements are made from the highest official level in the land militating against multipartyism. Recently, for example, the Head of State made the faffle that Rift Vallet was a sealed KANU zone to which opposition politicians were exluded. What's more, even where prominent politicans were humiliatingly beaten up, the official line has maintained, quite feebly it must be observed, that they were not scathed at all as they had not reported the matter to the police! The Head of state has further exacerbated the state of concern by declaring publicly that it is unrealistic to speak of a level playing ground in Africa.Even the Government-established Standing Committee on Human Rights has recently made strong statements excoriating the security forces for violating human rights in the performance of their duties. As a first step, the Committee has suggested the teaching of human rights to these people; the body has also recommended the teaching of human rights in schools. According to the Presidential Standing Committee on Human Rights Chariman Prof. Onesmus Mutungi, there is urgent need for the Kenya Institute of Education to incorporate topics on human rights in the syllabus so that students can know their constitutions rights at a tender age.And who will guard the guards? Much as it is not possible to legislate that public officials must be democratic • The intiation of the constitutional process • Ensuring independence and impartiality of the Judiciary. • Strengthening of the various Parliamentary Committees. • Non-selective enforcement of laws and order. • Introduction of human rights education in primary and secondary schools. • Prevention and alleviation of poverty • Delinking of the public service from the ruling party. • Promotion of dialogue between the Government and Civil Society institutions. • Promotion of dialogue between the Government and political parties. • Creation of a conducive environment for the 1997 general elections and beyond.(b) Civil Society • Strengthening of institutional capacity. • Training of civil society leaders • Self - reliance in raising funds. • Dialogue betweem civil society organisations/institutions and the Government • Dialogue between civil society organisations/institu tions and the political parties. • Dialogue between civil society organisations/institutions and donors • Uninhibited registration of NGOs • Review of the NGO Coordination Act • common civil society strategies in the process of democratisation including the electoral process (e.g. civic education, provision of election monitors). • Observance of code of ethics • Practice of internal democracy. • A research on the performance of civil society organisations/institutions in Kenya to date, with regard to the protection and promotion of huma rights, peacemaking and conflict resolution. • Identification of non-legal mechanisms of peacekeeping and conflict resolution including traditional ones. • Creation of a regional centre for research in peace and conflict by a consortium of NGOs.(c) Political Parties • Estalbishment of a code of conduct • Public education of party leaders. • Financing of political parties by the Government. • Ceiling of funding of political parties from private sources and the vetting of such sources. • Formation of coalitions amongst political parties. • Removal of the "turn coat" provision in the Costitution to ward off "defections". • The right of independent candidates to take part in elections for public offices. • Speedy registration of political parties. • Supervision over the conduct of political parties to be within the province of the Electoral Commission registration to be also effected by the electoral body. • Recognition, via substantive law, of Official Opposition. ööin serving the people of Kenya, ways and means (including civic education) should be found to inculcate democratic culture on the part of the governors. Magnanimity is clearly a mark of polished leadership, a characteristich which was wanting when recently the Kenyan Cabinet blocked suggested amendments to the Public Order Act, aimed at making multiparty politics meanigfulGreat leaders, the well known American historian, Arthur M. Schlesinger, observes, justify themselves by emancipating and empowering their followers.The lack of this is a recipe for disaster or doom. He goes on: "Irreverence irritates leaders but is their salvation. Unquestioning submission corrupts leaders and demeans followers. Making a cult of a leader is always a mistake. Fortunately hero worship generates its own antidote. 'Every hero' said Emerson, 'becomes a bore at last'".There are the basic legal and humanitarian principles which those entrusted with the governance of the country must uphold.The principles are embodied in the rules of international humanitarian law and international human rights law which regulate the exercise of state power at all times, and in the rules of internations humanitarian law of which regulate it in times of conflict. Some of those rules, probalbly the most fundamental and important them, exert, or should exert, a restraining influence on the exercise of police power and herein lies a paradox. Human rights are protected by law and yet are at risk from the law enforcers.The entire rationale behind international standards designed to protect and promote human rights during the process of law enforcement is to influence interaction which occurs between the operational police official and the citizen - to affect the behaviour of the official so that he or she delivers effective policing in accordance with international standards. This means that whilst rules expressing those standards must focus on that interatction, they must also focus on the command, management and administration of law enforcement agencies and on the accountability and external supervision of police.Policing is one of the means by which a state meets its obligations to protect the most fundamental of civil rights - the rights to life, liberty and security of person, and other important civil rights such as the right to a fair trial and the right to equal protection of the law. However, unlawful and unethical police action can and does, lead to serious violations of those rights. Policing is also a significant factor in the protection or abuse of political rights and in the delivery of economic, social and cultural rights. Effective policing can secure social peace and tranquility which is necessary for the enjoyment of those categories of rights, where insensitive or thoughtless policing can be a positive or negative factor in securing respect for humanitarian standards.Two viewpoint keep on re-surfacing in view of some evident flaws (which include violence) which impinge on this year's general elections. Should there, for example, be an election boycott by the electorate? Allied to this, should the donors withhold financial assistance to the electoral process on the premise that it does not seem justifiable to be a party to elections which are derailed right from the word "go"?These are difficult questions requiring well-thought-out decisions with cogent merits and demerits, but it seems to be for the overall benefit of the Kenyan voter if the elections go on; it follows then, that it will be to the benefit of the Kenyan people if assistance, both technical and financial, is forthcoming so as to prevent obvious anomalies and instil a sense of discipline in the whole exercise. An election boycott can only have a meaning if it is total and if the incumbent leadership have a consience which is not yet numb. There is no doubt that the ruling party will have no qualms with proceeding with the general elections even if all the major political parties boycotted the elections. Zambia offers a good example and so did Ghan in the previous general elections. As for the 1969 national election, this was also tinged with ethnic suspicion and animosity.The deaths of two important Luo Ministers in 1969 created a crisis for government, which included maintaining Luo representation in the Cabinet. Argwings-Kodhek died in a car accident on January 29, 1969. The assassination of Tom Mboya on July 5 led to rioting by Luos in several sections of the country. Accordingly, it has been correctly observed that the 1969 elections were held in "an atmosphere which was for far from normal"22AThe other major incident occurred in Kisumu in October 1969 where violence broke when President Kenyatta travelled to the lake town to open the Russian built Nyanza General Hospital. The police opened fire on the crowd killing ten people. Immediately thereafter, the Kenya People's Union (KPU) was banned and its leaders detained only about two months before elections were held. The political sky was thereful pregnant with resentment at government intransigence and possible invlovement in "finishing" the tribe through assasination of key leaders.The tense political situation in the country was exacerbated by the mass oathing amongs the Kikuyu (vowing that the flag will not leave the House of Mumbi), "a development which reminded other Kenyans of the Mau Mau and made them afraid that something more serious might be about to happen."22BThe Luo factor will also dominate this year's elections although this time round not pitted against the Kikuyu. The Government's vulnerability (compounded by a glaring lack of credibility) will no doubt act as a spur for the administration to act rashly recklessly, a real recipe for electoral violence. One also senses potential electoral violence in other parts of Nyanza, especially the districts inhabited by the Gusii. Flashlights of electoral violence have aready stated flickering from the Coast where high-noon resentment against the treatment of Muslims is evident, especially with the stripping of Sheikh Balala's citizenship thus rendering the fiery preacher stateless. Kitui District, from which the presidential aspirant Charity Ngilu hails, is another possible "hot" spot and, so are some parts of the Rift valley where the opposition parties seem to be making some tangible inroads. The North-Eastern province, where security is elusive and where the governement's popularity is not as strong as is painted will have its sparks of violence, and so will be some opposition strongholds such as Kiambu, Muranga and Nyeri in Central Province, and Bungoma and Sabot in Western Province.There does not seem to have been such red-hot tension in the country (except during the State of Emergency declared after the outbreak of Mau Mau) and the reality seems that Kenyans are headed for a catacylsm.Electoral violence militates against the democratic process and is clearly a boil of a sick polity. After all, voting forms the foundation of democratic politics. It is the basic art of democracy: first because it is the mode of formal governmental action taken by the greates number of people; and second, because it is the operational link between democratic theory and the real world.Electoral violence is laden with threats to interpersonal harmony. Tet, one of the characteristics of politics in a democracy is that they are controversial. Indeed, many of the propaganda activities of organized groups become more intense when they are given personification by means of the electoral process. The upshot is that it is quite in order for donors to support the electoral process by, amongst other things; supporting the Electoral Commission, especially in the field of civic education and the training of election officials.The other thing is support to the police in terms of human rights education; the British Overseas Development Administration (ODA) has made some inroads in this, whilst UNDP has made some efforst in "democratising" public administration.It is hardly possible to force administrators be democratic Democracy in administration depends very much upon the heart of the administrator. He must want to be democratic if there is to be democracy. There is no statute that can make an autocratic heart democratic, although statutes can tell administrators how to be democratic heart.Parallel to the assistance to the Government (including the local authorities), there is also need for donors to continue supporting the civli society in their civic education initiative which include voter education.(b) Calendar ActivitiesDemocratisation is a continuous process whose time space is infinite. However, there are things which are to be done now, in the near future and years to come. Thus, in dealing with minimizing the incidence of electoral violecne, we have to be concerned with both short-term and long-term considerations. And not only that; we have also to look at the issue in a wider perspective, that is witin the matrix of conflict prevention, management and resolution. Although the focus is mainly on Kenya, there will also be a mention of the situation in the Greater Horn of Africa as well as in some of the other neighbouring countries. A definitive calendar of events seems unrealistic so that what is required is the prioritization of what needs to be done in 1997 and beyond. The time-frame for 1997 can be more rigorously projected whilst thereafter, say in the next four years, there can be tolerable flexibility.The year 1997 is particulary improtant because it is the year during which general elections will be held.Actors in the electoral processThe following are the major actors in the electoral process, namely: (a) Government;(b) Civil Society;(c) Political Parties;(d) Electoral Commission;(e) Citizenry;(f) Leaders;(g) Donors;(h) Institution of higher learning;(i) International and Regional Bodies;(j) The Press. (i) International and Regional Bodies • Creation of a regional centre on documentation in the area of peacemaking and conflict resolution. • Involvement of the people of the Greater Horn of Africa in the activities of the various regional arrangements such as IGAD and the revived East Afrian Community. (the activitiews of IGAD and also the other regional arrangements need to be systematically documented and popularized. • Creation of a regional Human Rights Court. • Linkages of efforts of civil society institutions in the states comprising the sub-region in the area of peacemaking and conflict resolution. • The development of a regional Charter on Peacemaking and Conflict Resolution. (j) The Press • Training of journalists on human rights, democracy and the Rule of Law. • Abrogation or repeal of laws which impede the exercise of the Freedom od the Press. • Involvement in the constitutional Process • Freeing of the air waves. • Civic education through the media.* The writer is a Lecturer in Law, Faculty of Law, University of Nairobi. öThere is also the lack of sufficient political education/consiousness on the part of the masses so that "the rules of the game" in the political sphere, say in the electoral process, are not adhered to. This is typically an African phenomenon. A political scientist ruefully admonishes: "A valuable part of political experience in a mature tradition is the lesson that politics becomes destructive for nearly all its participants, once constitutionalism - which is a mixture of just or a cceptable law and the rules of the game - is flouted. It does seem that only in the continuing vicissitudes of the politics of independence can the new political classes learn that without tolerance and conciliation politics becomes dangerous for all its participants."21Ethinicity continues to be exploited by out political actors with no end in view. Pro. Ake dissects the issue in his characteristically scholar fashion: "...Clearly ethnic identity serves the objective interests of the bourgeoisie in important ways. For instance, it is a major antidote against the development of class consiousness. It creates vertical links across the class strata, and helps the political systems to maintain a level of intergration quit out of proportion to objective class differnces. ...The immediate cause of ethnic conflict in contemporary Africa is the struggle among the factions of the bourgeoisie for hegemony, a contest which reflects the contradictions and the general coherence of neo-colonial economy. Extrapolating from this analysis, I wish to suggest that ethnic conflict will diministh only in so far as i) the bourgeois class becomes more cohesive and (ii) the contradictions between the interests of the masses and the bourgeioise become sharper and penetrate the consciousness of the peasants and workers."22In modern industrial society, there is no definition of democratic politics that is very far from Schumpeter's that democracy "is that institutional arrangement in which alternative governments, competing elites, offer themselves for selection by an electorate whose sole political function is to choose, lock, and barrel, one of these teams every few years."This is of course ideal; electoral violence has continued to plague our body politic since 1957 when, for the first time, Africans wer given the franchise. It is possible that there were isolated forms of electoral violence before that date, but it would seem that no preponderant data exists to support this.Multiparty politics have in Kenya's history engendered more violence than the "semi-competive" elections in the one-party system. This was true in 1961 and 1963 when two things were brought to the fore: first the ethnic factor, and the indisciplined youth groups of both the parties. However, 1966 was clearly the most intense election, with paradoxically some parallels to the 1969 election, which were actually held under a monolithis political system.The 1966 "Little General Election" was to remain the only post-independence multiparty election up to 1992 and it stands out in that it was held at the backdrop of a political storm engendered by the calculated move to dislodge Oginga Odinga then the country's Vice-president from the mainstream of KANU leadership. According to a respected political scientist, Proessor John Okumu, the 1966 campaign demonstrated that there was "a dose of interconnection between the purely personal and ethnic trust and loyalties. He observes: "There was fear and terror in Central Nyanza in 1966 caused partly by indisciplined youth wingers, and partly by uncertainties regarding the late granting of registration to K.P.U. (Kenya People's Union)".17c The United Nations General Assembly resolved in the same year to request its members to take steps as appropriate, and according to the scholastic system of each State, to introduce or encourage the principles proclaimed in the Universal Declaration of Human Rights and in other declarations. It called for progressive instruction of this sort in the curricula of both primary and secondary schools, and invited teachers to seize every opportunity to draw the attention of their students to the growing role the United Nations system plays in fostering peaceful international relations and co-operative efforts to promote social justice and economic and social progress in the world. Similar requests have been reiterated since then. Additionally, Kenya is a signatory to the African Charter on Human and People's Rights which also requires that State Parties undertake human rights education within their countries.The Standing Committee on Human Rights in Kenya has agreed with this position underlining that it will work towards this noble goal.(f) Legislative PathThe ruling party has a majority of MPs in the National Assembly so that the contribution by the incumbent government is required for the much needed weeding out of obnoxious laws, basically inherited from the colonial rule, so as to create a conducive environment for democratisation. The government's positive role is also required in the constitutional reform process. (g) Checks and BalancesThe activities of the Executive should be closely scrutinised by the other organs of government, namely, the Judiciary and Parliament.This is to say that the judiciary should ensure that government officials do not misuse and/or abuse power. Parliament, on its part, should effectively play its traditional role, namely, being the watchdog of the Constitution.(h) Social JusticeInsecure and deprived people are potential candidates for ethnic manipulation, ready combatants for ethnic conflict. Accordingly, the problem of poverty should be addressed squarely.2. Civil SocietyThe commonly held view is that a vibrant civil society serves a critical check on authoritarian rule. Thus the creation of a viable civil society is widely perceived as "the most effective means of controlling repeated abuses of state power, holding rulers accountable to their citizens, and establishing the foundations for durable democratic government." 48In addition, the civil society fills a void in view of the social fragmentation and instituional breakdown. From this perspective, civil society provides "an adhesive that brings togetheer disparate groups and interests within a common framework." 49But as has been pointed out in a number of writings, the concept of civil society is fraught with controversy "over its location, its constraints and under what conditions it can be said to exist." 50The undersighed once remarked to a representative of a major donor agency in the cuntry that a cynical viewpoint prevailed to the effect that there were 50 persons in Kenya's metropolis, Nairobi, representing civil society. In response, he (the donor agency representative) opined that there were 50 persons in Nairobi who were actually the civil society itself! This statement, one hopes, is laced with a light touch for there is no way it can stand serious scientific scrutiny.The success of any democratic project sponsored by civil society will depend on its ability to curb the potential for internal division, and capacity to formulate a single and coherent agenda in its confrontation with the state. The absence of this common solid organizational agenda does not necessarily lead to the pessimistic conclusion that civil society does not exist in Kenya, and Africa, for that matter.Indeed, the following caution is in order: "To assume that civil society does not exist because groups in society are not cohesive is to banish from analysis, an important weapon in the terrain of confrontation between state and society and that is the capacity for (mutual) penetration. Given this, civil society may not necessarily be non- existent because of an inability to forge an organizational principle. Rather, it may be more approprieately described as weak in relation to the state." 51In Kenya, civil society is yet to re-emerge to its former vibrancy which had been whittled down over the years by the Government in its systematic assault on the autonomous voluntary associations. Such was the fate which befell the trade union movement, the numerically strong Maendeleo ya Wanawake, the Academic Staff Association of the University of Nairobi, the student movement, farmer's associations, and so forth.The plurality of the civil society organizations has been both the blessing and the bane of the non-state sector of Kenya's national life. In the former situation creativity and innovativeness of civli society implies divisions and cleavages which may be harmful to the common interests. In Africa, for example, where norms of hierarchy and authority are highly pronounced, civil society may be a significant reservoir of authoritarianism and antidemocratic values. What's more, power relations also encumber civil society. These are expressed in the family, the community and in religious organizations and all of these are more or less authoritarian. The informal sector actually contains severe forms of exploitative relationships. In sum, civil society (or at least, aspects of it) has the capacity or potential of thwarting the process of democratisation.Be that as it may, civil society bodies/institutions are a power to reckon with in regaining human values in Kenya. Accordingly, the civil society has to come up with an agenda, the definition of a common project, in order to effect the transition to democracy. This entails two major tasks. First, it must be able to articulate a programme of restraints on the use of state power. Second, it (civil society) should be able to articulate a programme for the democratic selection of those who are to exercise state power. The first is what has come to be termed by some scholars as the liberalisation process,, involving the struggle for Fundamental Human Rights. The second stage is that of democratisation and it involves citizens' participation in governance. This is based on elections. It therefore requires organization for the elections and control of state machinery.Finally, it is important to break the prevailing hiatus between human rights organisations and the NGOs usually referred to as "development" associations in the areas of, for example, health, agriculture and environment. This is premised on the principle that civil and political rights as well as economic, social and cultural rights, are indivisible. Commununity Based Organisations (CBOs)There is a tradional premium placed on the utility of grassroots organisations as the basic plank towards giving voice to popular demands, thereby creating confidence at the local level. Yet, it is equally plausible, as the late Claude Ake suggests, to view grass-roots organizational activity as a constraint on democracy that separates citizens fro meaningul paricipation and "underlines the confinement of local people and their disenfranchisement." 52 However, there is no doubt that in a place like Kenya, where provincial administration is pervasive, organized activity at the local level serves as a bulwark against misuse or abuse of power at that level; it is instructive that theGovernment has always discouraged such manifestations of self-governance and self-reliance which are elements which militate against the notion sheepish followers.As one scholar has noted of Ethiopia, "the democratic traditions of many local cultures suggest a stronger basis of a civil society than is often acknowledged, and as Ethiopian political life becomes more inclusive, these traditions may contribute to the growth of democracy.." 533. Political PartiesThe first necssity for meaningful elections is an organized party system. This is so because political parties play a key role in the electoral process. They provide the means through which voter needs and discontents are heard and resolved. Without a choice between at least two parties, the electorate is powerless to exert its influence.A related vital requirement is for free competition between parties. The voters must be able to hear divers opinions and be able to make a free choice. To provide this, the parties must be allowed significant opportunities to make their appeals. Nomination and campaigning must be available to the full range of candidates and the means provided for getting across their views and policiess to the electorate.Political parrties in Kenya generally lack clear - cut ideological standpoints. Additionally, and this applies especially to the recently established ones, they lack resources to enable them function properly and efficiently.4. The Electoral CommissionSection 42A of the Constitution of Kenya, added through a constitutional amendment passed by Parliament in 1992, provideds that the Electoral Commission shall be responsible for: (a) the registration of voters and the maintenance and revision of the register for voters; (b) directing and supervising the Presidential, Nationa Assembly and Local Government elections; and (c) such other functions as may be prescribed. The Electoral Commission is also responsible for the determination of boundaries of parliamentary constituenceis. In sum, this electoral body is the very nerve-centre of the electoral process. À�7Z�‹$4�c��À�n"‹$"C�
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The Electoral Commission has been perceived as not being independent and impartial on account of its composition which is not broad-based and whose members are seen as pro-executive.The electoral body also suffers from a number of weaknesses, namely: (a) lack of adequate resources, especially material and human resources (To date, that is over five years since its "resurrection" in 1992, the Electoral Commission has not appointed a Director of Elections and his or her Deputy); (b) lack of financial autonomy; (c) Worryingly inadequate civic education programmesIt is important to attend to the aforegoing factors which have been debilitating the efficacy and effectiveness of the electoral body.5. The PressThe press can play a very significant role in the minimization of conflict. An independent and impartial press can greatly assist in the democratization process. As such, then, it is necessary to do all that is possible to ensure there is in place a fearless but fair press - both electronic and print - out to establish the truth and to speak for the majority who are voiceless.6. A Conference on Peacemaking and Conflict Resolution in the Greater Horn of AfricaSuch a regional meeting is necessary so that the needs in the states concerned can be clearly delineated.Ideally, the meeting should be attended by representatives of both the governments and civil society institutions in the region as well as political parties or movements.Summary of Strategies/Plan of Action (with Special Emphasis on Kenya)(a) Government • Public education of public servants on human rights, democracy on the Rule of Law. (Already there is a programme fincanced by ODA to sensitize the Kenya Police on some aspects of huma rights like domestic violence and social conflict).Target Groups: Security forces, including the armed forces). • Civic education programmes on the electronic media. Special emphasis on voter education. • Freeing of the airwaves: Balanced coverage on Kenya Broadcasting Service and licensing of radio/tv stations as a matter of course. This includes community radio stations. • The ending of corruption which has eaten into the marrow of the body politic. • Abrogation and/or repeal of oppressive laws such as the Public Order Act, Societies Act, Chiefs' Authority Act, Preservation of Public Security Act and sections of the Penal Code (on sedition) criminalising activities of a purely political nature. • Enactment of electoral laws aimed at ensuring free and democratic elections. "