REPORT OF THE TRUTH, JUSTICE ANDRECONCILIATION COMMISSIONVolume IIA
REPORT OF THE TRUTH, JUSTICE ANDRECONCILIATION COMMISSIONVolume IIA
© Truth, Justice and Reconciliation Commission, 2013This publication is available as a pdf on the website of the Truth, Ju...
His ExcellencyPresident of the Republic of KenyaNairobi3 May 2013LETTER OF TRANSMITTALBy Gazette Notice No. 8737 of 22 Jul...
iVolume IIAREPORT OF THE TRUTH, JUSTICE AND RECONCILIATION COMMISSIONTable of Contents	Foreword..............................
iiVolume IIAREPORT OF THE TRUTH, JUSTICE AND RECONCILIATION COMMISSION	 Mass Graves, Burial Sites and Forensic Possibiliti...
iiiVolume IIAREPORT OF THE TRUTH, JUSTICE AND RECONCILIATION COMMISSIONForewordThis Volume focuses on the major violations...
ivVolume IIAREPORT OF THE TRUTH, JUSTICE AND RECONCILIATION COMMISSIONviolations in this chapter, but also the violations ...
vVolume IIAREPORT OF THE TRUTH, JUSTICE AND RECONCILIATION COMMISSIONdescribes a particular form of violence committed aga...
viVolume IIAREPORT OF THE TRUTH, JUSTICE AND RECONCILIATION COMMISSIONList of AbbreviationsADC	 Agricultural Development C...
viiVolume IIAREPORT OF THE TRUTH, JUSTICE AND RECONCILIATION COMMISSIONMP	 Member of ParliamentNCPB	 National Cereals and ...
viiiVolume I  Chapter ONEVolume IIAviii REPORT OF THE TRUTH, JUSTICE AND RECONCILIATION COMMISSION
1CHAPTERONEHistorical Context:A General OverviewIntroduction1.	 On the eve of Kenya’s Independence Day, the Duke of Edinbu...
2Volume IIA Chapter ONEREPORT OF THE TRUTH, JUSTICE AND RECONCILIATION COMMISSION3.	 This Chapter locates gross human righ...
3Volume IIA Chapter ONEREPORT OF THE TRUTH, JUSTICE AND RECONCILIATION COMMISSIONBritish Colonial Era7.	 The creation of m...
4Volume IIA Chapter ONEREPORT OF THE TRUTH, JUSTICE AND RECONCILIATION COMMISSION11.	 In early 1890, the company started c...
5Volume IIA Chapter ONEREPORT OF THE TRUTH, JUSTICE AND RECONCILIATION COMMISSIONwas the child of His Majesty’s government...
6Volume IIA Chapter ONEREPORT OF THE TRUTH, JUSTICE AND RECONCILIATION COMMISSION18.	 Having been appointed as the first c...
7Volume IIA Chapter ONEREPORT OF THE TRUTH, JUSTICE AND RECONCILIATION COMMISSION‘the politics of this time were at one le...
8Volume IIA Chapter ONEREPORT OF THE TRUTH, JUSTICE AND RECONCILIATION COMMISSION23.	 Heandfourotherleadersdiedinexile.20T...
9Volume IIA Chapter ONEREPORT OF THE TRUTH, JUSTICE AND RECONCILIATION COMMISSIONcattlecaptured5,636sheepandgoats3,281and1...
10Volume IIA Chapter ONEREPORT OF THE TRUTH, JUSTICE AND RECONCILIATION COMMISSIONChiefs and forced labour30.	 British off...
11Volume IIA Chapter ONEREPORT OF THE TRUTH, JUSTICE AND RECONCILIATION COMMISSIONLand alienation33.	 After the First Worl...
12Volume IIA Chapter ONEREPORT OF THE TRUTH, JUSTICE AND RECONCILIATION COMMISSIONIt was described as the‘Valley of Death’...
13Volume IIA Chapter ONEREPORT OF THE TRUTH, JUSTICE AND RECONCILIATION COMMISSIONMau Mau War40.	 The Mau Mau war, from 19...
14Volume IIA Chapter ONEREPORT OF THE TRUTH, JUSTICE AND RECONCILIATION COMMISSION44.	 Between 150,000 and 320,000 African...
15Volume IIA Chapter ONEREPORT OF THE TRUTH, JUSTICE AND RECONCILIATION COMMISSION46.	 To establish the root causes of Mau...
16Volume IIA Chapter ONEREPORT OF THE TRUTH, JUSTICE AND RECONCILIATION COMMISSIONNyanza District African Political Associ...
17Volume IIA Chapter ONEREPORT OF THE TRUTH, JUSTICE AND RECONCILIATION COMMISSIONPresident Jomo Kenyatta’s Era52.	 On 12 ...
18Volume IIA Chapter ONEREPORT OF THE TRUTH, JUSTICE AND RECONCILIATION COMMISSION55.	 The attainment of political indepen...
19Volume IIA Chapter ONEREPORT OF THE TRUTH, JUSTICE AND RECONCILIATION COMMISSIONaround land and the colonial land aliena...
20Volume IIA Chapter ONEREPORT OF THE TRUTH, JUSTICE AND RECONCILIATION COMMISSIONShifta War61.	 After dealing with the Ma...
21Volume IIA Chapter ONEREPORT OF THE TRUTH, JUSTICE AND RECONCILIATION COMMISSIONprotecting the KANU-led government and t...
22Volume IIA Chapter ONEREPORT OF THE TRUTH, JUSTICE AND RECONCILIATION COMMISSION65.	 The polarization of the country bet...
23Volume IIA Chapter ONEREPORT OF THE TRUTH, JUSTICE AND RECONCILIATION COMMISSIONto allow any other tribe to lead Kenya.6...
24Volume IIA Chapter ONEREPORT OF THE TRUTH, JUSTICE AND RECONCILIATION COMMISSIONPresident Daniel Arap Moi’s EraFollowing...
25Volume IIA Chapter ONEREPORT OF THE TRUTH, JUSTICE AND RECONCILIATION COMMISSIONConstitutional amendments75.	 President ...
26Volume IIA Chapter ONEREPORT OF THE TRUTH, JUSTICE AND RECONCILIATION COMMISSIONAttempted Coup and the aftermath77.	 On ...
27Volume IIA Chapter ONEREPORT OF THE TRUTH, JUSTICE AND RECONCILIATION COMMISSION80.	 From various independent human righ...
28Volume IIA Chapter ONEREPORT OF THE TRUTH, JUSTICE AND RECONCILIATION COMMISSIONSliding back to old practices83.	 Howeve...
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  1. 1. REPORT OF THE TRUTH, JUSTICE ANDRECONCILIATION COMMISSIONVolume IIA
  2. 2. REPORT OF THE TRUTH, JUSTICE ANDRECONCILIATION COMMISSIONVolume IIA
  3. 3. © Truth, Justice and Reconciliation Commission, 2013This publication is available as a pdf on the website of the Truth, Justiceand Reconciliation Commission (and upon its dissolution, on the websiteof its successor in law). It may be copied and distributed, in its entirety, aslong as it is attributed to the Truth, Justice and Reconciliation Commissionand used for noncommercial educational or public policy purposes.Photographs may not be used separately from the publication.Published by Truth Justice and Reconciliation Commission (TJRC), KenyaISBN: 978-9966-1730-3-4Design & Layout by Noel Creative Media Limited, Nairobi, Kenya
  4. 4. His ExcellencyPresident of the Republic of KenyaNairobi3 May 2013LETTER OF TRANSMITTALBy Gazette Notice No. 8737 of 22 July 2009 and pursuant to section 10 of the Truth, Justice andReconciliation Act No. 6 of 2008, the undersigned were appointed to be Commissioners of the Truth,Justice and Reconciliation Commission. The Commission was established with the objective ofpromoting peace, justice, national unity, healing, reconciliation and dignity among the people of Kenya.Having concluded our operations, and pursuant to section 48 of the Truth, Justice and ReconciliationAct, we have the honour to submit to you the Report of our findings and recommendations.Please accept, Your Excellency, the assurances of our highest consideration.Amb. Bethuel Kiplagat ChairpersonTecla Namachanja Wanjala (Vice Chairperson)Judge Gertrude Chawatama Amb. Berhanu Dinka Maj. Gen (Rtd) Ahmed Sheikh FarahProf. Tom Ojienda Margaret Shava Prof. Ronald Slye
  5. 5. iVolume IIAREPORT OF THE TRUTH, JUSTICE AND RECONCILIATION COMMISSIONTable of Contents Foreword..........................................................................................................................................iii List of Abbreviations...................................................................................................................viCHAPTER ONEHistorical Context: A General Overview................................................................................................. 1 Introduction....................................................................................................................................1 British Colonial Era .......................................................................................................................3 President Jomo Kenyatta’s Era ............................................................................................. 17 President Daniel Arap Moi’s Era .......................................................................................... 24 President Mwai Kibaki’s Era................................................................................................... 27Appendix Selected major events in Kenya........................................................................................... 30 CHAPTER TWOHistory of Security Agencies: Focus on Colonial Roots of the Police andMilitary Forces ...................................................................................................................................................33 Introduction ................................................................................................................................ 33 The Police ..................................................................................................................................... 34 The Military .................................................................................................................................. 72 Conclusion ................................................................................................................................... 99CHAPTER THREEThe Shifta War................................................................................................................................................. 101 Introduction ..............................................................................................................................101 Origins...........................................................................................................................................103 Legal Framework .....................................................................................................................109 Socio-Economic Policy in Support of The War ...........................................................111 Fighting The War.......................................................................................................................113 Massacres During The Shifta War......................................................................................131 Assigning Responsibility.......................................................................................................137
  6. 6. iiVolume IIAREPORT OF THE TRUTH, JUSTICE AND RECONCILIATION COMMISSION Mass Graves, Burial Sites and Forensic Possibilities............................................. 142 War’s End - October 1964........................................................................................... 144CHAPTER FOURUnlawful Killings and Enforced Disappearances...........................................................................147 Massacres............................................................................................................................................. 149 Political Assassinations................................................................................................................. 430 Extra-Judicial Killings and enforced Disappearances ................................................... 477 Annex: List of Massacre Victims.........................................................................................552CHAPTER FIVEUnlawful Detention, Torture and ill-Treatment.............................................................................. 589 Introduction ..............................................................................................................................590 Definitions and Legal Framework ....................................................................................590 Methodology ............................................................................................................................594 Detention and Torture during the Colonial Era .........................................................599 Detention and Torture during President Kenyatta’s Era..........................................602 Detention and Torture during President Moi’s Era....................................................605 Detention and Torture during President Kibaki’s Era ..............................................662 Annex: List of Victims of Detention, Torture and ill-Treatment............................664CHAPTER SIXSexual Violence............................................................................................................................................... 707 Introduction ..............................................................................................................................707 Definition ....................................................................................................................................708 Methodology ............................................................................................................................712 Reporting of Cases on Sexual Violations........................................................................713 Sexual Violence during Peacetime ..................................................................................718 Sexual Violence during Conflicts.......................................................................................721 Sexual Violence in the Context of Interrogation .......................................................744 Sexual Violence during Forced Evictions.......................................................................746 Sexual Violence by the British Royal Army ...................................................................750 Impact of Sexual Violence on Victims and their Families ......................................753
  7. 7. iiiVolume IIAREPORT OF THE TRUTH, JUSTICE AND RECONCILIATION COMMISSIONForewordThis Volume focuses on the major violations of bodily integrity rights that werecommitted during the Commission’s mandate period. While most of the violations in thisvolume are traditionally defined to require state action – extra judicial killings, enforceddisappearances, detention, torture – the Commission adopted a more expansive view ofthese violations. This was for four reasons. First, while as a matter of law the distinctionbetween state and non-state action is important with respect to many of these violations,many victims are less concerned about the official status of those who wronged them,and more with identifying those individuals and addressing the consequences of theharm they suffered.Second, if the Commission were to strictly define these violations as requiring stateaction, the experience and narratives of many victims would be lost. This would diminishthe ability of the Commission to provide an accurate, complete and historical record ofgross violations of human rights committed during the mandate period.Third, while some of the violations described in this volume were not directly committedby state officials, the failure of the state to provide adequate security to many of itscitizens provided an opportunity for such violations to occur. In seeking to understandthe circumstances, factors and causes of violations committed by militias and other non-state actors, the Commission was inevitably drawn to an analysis of state inaction, andin particular the failure of the state to provide, and appear to be providing, justice andsecurity.Fourth, while the Commission does make recommendations with respect to the law andlegal structures, it is not a court of law, but rather a body dedicated to describing andexplaining historical injustices and gross violations of human rights. While accountabilityis part of the Commission’s mandate, justice is one of three equally important pillars,the other two being truth and reconciliation. In interpreting its mandate, therefore, theCommission was sensitive to furthering the fulfilment of each of the three pillars, andnot giving undue weight to any one over the other two.While much of this volume is focused on violations directly committed by the state,it also includes descriptions of killings, severe injury and violence, sexual violence,detention, and other similar violations committed by non-state actors.The volume starts with a general overview of the political history of Kenya. This chapterprovides the overall political context for understanding not only the other specific
  8. 8. ivVolume IIAREPORT OF THE TRUTH, JUSTICE AND RECONCILIATION COMMISSIONviolations in this chapter, but also the violations and other materials in the rest of thereport. Because the political history focuses heavily on the state and its development,we include it here in the volume that focuses most on some of the worst violationscommitted by the state.In the chapter on political history we also, as in other parts of the report, discuss someof the practices and violations of the colonial government. While the Commission’stemporal mandate formally commenced at independence, the Act also required us todescribe and analyze the ‘antecedents, circumstances, factors and context’ of violationscommitted during the mandate period. There is no question that in order to understand,for example, the newly independent government’s reaction to the Shifta War (notto mention injustices related to land, state abuse of power, corruption, and many ofthe other violations discussed in this Report), one needs to understand the policiesand actions of the colonial government, as well as the legal, political, and economicstructures they established and bequeathed to the newly independent government.This general political overview is then supplemented by a description of the historyof the state security agencies. While other agencies of the state were responsible forhistorical injustices and gross violations of human rights during the mandate period (seee.g. Volume 2B which focuses on land, economic crimes, violations of socio-economicrights, and corruption), the security agencies were both primarily responsible for manyof the acts of commission discussed in this volume, as well as the acts of omission (thefailure to provide security) that allowed many of the violations committed by non-stateactors to occur.The next chapter focuses on the major armed conflict (in this case a non-internationalarmed conflict) within the Commission’s mandate, the Shifta War. As the definingmoment of the independence of the nation, the Shifta War acts as a bridge from theviolations committed by the colonial power prior to independence and the violationscommitted by the newly independent government. The Shifta War had a profoundimpact on the early development of the state, the effects of which are still being felttoday, not least by the survivors and their descendants in the north eastern part of thecountry.The remaining chapters are organized by class of violations. Unlawful killings and enforceddisappearances are divided into three separate parts: massacres, political assassinations,and extra judicial killings. Detention, torture and ill treatment were unfortunatelypresent during all periods of Kenyan history. While the infamous Nyayo House torturechamber is often the first thing that one thinks of with respect to the Kenyan governmentand torture, this chapter illustrates how prevalent illegal detention, torture, and othersimilar treatment continues to plague the nation. Finally, the chapter on sexual violence
  9. 9. vVolume IIAREPORT OF THE TRUTH, JUSTICE AND RECONCILIATION COMMISSIONdescribes a particular form of violence committed against men and women, boys andgirls. It is only in the last three decades that the international community has becomemore aware of the use of sexual violence as a systematic tool of oppression and armedconflict. Sexual violence was prevalent during the colonial period, and unfortunatelycontinued unabated through independence to the present day.Investigations related to some of the events in this chapter – e.g. the Wagalla Massacre;the assassinations of, among others, Tom Mboya, J.M. Kariuki, and Robert Ouko – aresome of the most anticipated by many Kenyans. The report of the Task Force reportedthe high interest in providing truth and justice with respect to these violations, andthe experience of the Commission was the same. The Commission was able to unearthsome new information regarding some of these events. But there is no question thatthe Commission was unable to provide clear answers to all of the questions raised aboutthese injustices. A major cause of this inability was the difficulty the Commission facedin securing documents and the cooperation of witnesses and other interested partieswith respect to these events. It is our hope that the information provided here willre-emphasize the importance of the government coming clean and releasing all of theinformation within its possession with respect to these and other historical injustices.
  10. 10. viVolume IIAREPORT OF THE TRUTH, JUSTICE AND RECONCILIATION COMMISSIONList of AbbreviationsADC Agricultural Development ConsultAFC African Finance CorporationAP Administrative PoliceADCU Air Defence Control UnitASTU Anti- Stock Theft UnitAMREF African Medical and Research FoundationBBC British Broadcasting CorporationCBK Central Bank of KenyaCJPC Catholic Justice and Peace CommissionCEO Chief Executive Officer CEDAW Convention on the Elimination of All Formsof Discrimination Against WomenCID Criminal Investigation DepartmentCMS Church Missionary SocietyCOVAW Coalition of Violence against WomenCAT Convention against Torture and other Cruel,Inhuman or Degrading TreatmentDSC District Security CommitteeDNA Deoxyribonucleic Acid DO District OfficerDSBO District Special Branch OfficerDTM December Twelfth MovementEAR East African RiflesEATC East Africa Transport CorpsFAO Food and Agricultural OrganitzationFERA February 18 Revolution ArmyFEM February Eighteenth MovementFGM Female Genital MutilationGSU General Service UnitGVRC Gender Violence Recovery CentreICTY International Criminal Tribunal for the formerYugoslaviaIBEAC Imperial British East Africa CompanyIMLU Independent Medico-Legal UnitILO International Labour OrganizationIDPs Internally Displaced PersonsKAR King’s African RiflesKR Kenya RiflesKANU Kenya African National Union KDF Kenya Defence ForcesKPU Kenya Peoples UnionKCB Kenya Commercial BankKADU Kenya African Democratic UnionKGGCU Kenya Grain Growers Cooperative UnionKPTC Kenya Posts and TelecommunicationsCorporationKAF Kenya Air ForceKHRC Kenya Human Rights CommissionKNHRC Kenya National Human Rights CommissionKNH Kenyatta National HospitalKMC Kenya Meat CommissionKBC Kenya Broadcasting CorporationKWS Kenya Wildlife ServiceKIC Kenya Intelligence CommitteeKDHS Kenya Demographic and Health SurveyKPLC Kenya Power and Lighting CompanyKNUT Kenya National Union of TeachersMoU Memorandum of UnderstandingMoH Ministry of HealthMMB Meat Market Board
  11. 11. viiVolume IIAREPORT OF THE TRUTH, JUSTICE AND RECONCILIATION COMMISSIONMP Member of ParliamentNCPB National Cereals and Produce BoardNFD Northern Frontier DistrictNTZ Nyayo Tea ZonesNBC Nyayo Bus CompanyNTZDC Nyayo Tea Zones Development CorporationNARC National Alliance Rainbow CoalitionNPPPP Northern province People’s Progressive PartyNFDLA Northern Frontier District Liberation ArmyNSC National Security CouncilNSIS National Security intelligence ServiceNEP North Eastern ProvinceOLF Oromo Liberation ForceODM Orange Democratic MovementOCS Officer Commanding StationOCPD Officer Commanding Police DivisionOB Occurrence BookPPSA Preservation of Public Security ActPSBO Provincial Special Branch OfficerPPO Provincial Police OfficerPCIO Provincial Criminal Investigations OfficerPNU Party of National UnityPRCT People for Rural Change TrustPEV Post Election ViolencePC Provincial CommissionerPSC Provincial Security CommitteeRHA Royal Horse ArtillerySDO Special District OrdinanceSLDF Sabaot Lands Defence ForceSSAs State Security AgentsSYL Somali Youth LeagueSOA Sexual Offences ActTJRC Truth Justice and Reconciliation CommissionUAE United Arab EmiratesUNDP United Nations Development ProgrammeUNESCO United Nations Educational, Scientific andCultural OrganizationUPI United Press InternationalUN United NationsVOK Voice of KenyaVOCA Victims of Coup Attempt
  12. 12. viiiVolume I  Chapter ONEVolume IIAviii REPORT OF THE TRUTH, JUSTICE AND RECONCILIATION COMMISSION
  13. 13. 1CHAPTERONEHistorical Context:A General OverviewIntroduction1. On the eve of Kenya’s Independence Day, the Duke of Edinburgh said the followingto a people that about to become free citizens of a new African nation:Tomorrow a new volume will be opened and an independent Kenya will start to writea new story. The pages of this volume are still blank and empty; the story that is to bewritten on them is still in the hands and minds of all the people of Kenya.12. The next day, 12 December 1963, independence was greeted with jubilation andcelebrations across the entire country. Immediately, Kenyans began to write thecountry’s story. Almost 50 years later, Kenya’s story is a success story as it is a sad story.It is a success story because, despite the many challenges that have bedeviled thecountry, Kenyans have made huge strides in achieving the goals that had been setforth at independence, chief amongst which is the eradication of poverty, diseasesand illiteracy. It is a sad story because it is burdened by ghastly accounts of grossviolations of human rights and historical injustices. It is mainly this sad part of Kenya’sstory that the Truth, Justice and Reconciliation Commission was tasked to examineand document.1 Daily Nation, 13 December 1963.
  14. 14. 2Volume IIA Chapter ONEREPORT OF THE TRUTH, JUSTICE AND RECONCILIATION COMMISSION3. This Chapter locates gross human rights violations and injustices that occurred inKenya between 1963 and 2008 in their historical context. It provides a compositeaccount or historical overview of the dynamics and factors that nurtured anenvironment under which these violations and injustices thrived. The overview ispresented in a chronological order beginning from 1895 when the Kenyan statewas created to 2008 when it was at the edge of disintegration.4. For analytical purposes, the historical period has been divided into four distinctepochs. These epochs correspond with the four political administrations thatgoverned the country during the Commission’s mandate period: British colonial era (1895 to 1963); President Jomo Kenyatta’s era (1963 to 1978); President Daniel arap Moi’s era (1978 to 2002); and President Mwai Kibaki’s era (2002 to 2008).5. As a historical overview, the scope and focus of this Chapter is limited to describingand explaining key events in the political realm during these four epochs. Assuch, it does not describe any particular violations and injustices in great detail.Comprehensive descriptions of such violations and injustices are covered insubsequent chapters and volumes of the Report.6. In analysing these key events and their historical perspective, it is argued that theviolence generated in the context of colonialism was perpetuated in the post-colonial period through unaltered colonial structures, institutions and mentalities.Thus Kenya’s relatively long history of human rights violations cannot be explainednor understood adequately without unravelling the country’s colonial experience.Kenya’s story is a success story as it is a sad story. It is asuccess story because, despite the many challenges thathave bedeviled the country, Kenyans have made hugestrides in achieving the goals that had been set forth atindependence, chief amongst which is the eradicationof poverty, diseases and illiteracy. It is a sad storybecause it is burdened by ghastly accounts of grossviolations of human rights and historical injustices.
  15. 15. 3Volume IIA Chapter ONEREPORT OF THE TRUTH, JUSTICE AND RECONCILIATION COMMISSIONBritish Colonial Era7. The creation of modern day Kenya dates back to 1885 when European imperialpowers assembled in Berlin, Germany, to partition Africa among themselves. At theBerlin conference where these powers met, it was resolved that those interested inAfrica would declare their spheres of influence then follow such declaration witheffective control of the new territories. What followed was the partition of Africa,with little knowledge of the continent, especially its hinterlands. In the end, someroughly 10,000 African polities were amalgamated into 40 European colonies andprotectorates. These colonies and protectorates would later provide the basis forthe modern nation-states of Africa including Kenya. Some African societies with alot in common were rent apart while others with nothing or little networks werefused together8. To establish and consolidate their rule in Kenya, the British employed violenceon a locally unprecedented scale and with unprecedented singleness ofmind and purpose. The colonial violence was characterized by unimaginablehuman rights violations and injustices which reached its zenith in the 1950s,a time when communities in Kenya staged a fight for political and economicself-determination.9. The British, having earmarked Kenya for control, moved with speed to implementthe Berlin resolution. Within two years, the British East African Protectorate(where most of the present Kenya falls) had been declared. Henceforth, most lawsapplicable in England and its hinter territories such as India would be exerted inthe so-called ’protectorate’.Rule by proxy: Imperial British East Africa Company10. Initially, the British chose to administer its newly-acquired territory through aproxy: the Imperial British East Africa Company (IBEAC). The IBEAC was granteda charter in 1888 to administer and develop the territory as it saw fit. It used thisauthority to exploit natural resources such as ivory. The charter was exclusive butthe company faced numerous challenges in establishing its authority in Kenya.Its agents have been described as ‘alcoholics’ who failed to establish workingrelationships with the local populations with whom they were supposed totrade.2Moreover, the IBEAC lacked the finances to develop infrastructure andwas therefore unable to make the investments necessary to properly advance itsEast African presence.2 B Berman Control and Crisis in Colonial Kenya: The Dialectic of Domination (1990) 50.
  16. 16. 4Volume IIA Chapter ONEREPORT OF THE TRUTH, JUSTICE AND RECONCILIATION COMMISSION11. In early 1890, the company started constructing the Mackinnon-Sclater road, whichwas actually little more than cattle-track designed to link Mombasa and Busia.The company also ordered a large steamship, the SS William Mackinnon, in thehope that it would crisscross Lake Victoria and further stimulate commerce in theregion. Neither of these projects succeeded. Indeed the failure of these projects,coupled with high profile political disputes and wrangles in Uganda, eventuallyconvinced the British government that the IBEAC’s charter should be cancelled.Consequently, the charter was cancelled on 1July 1895. Administrative control ofthe territory passed from the IBEAC to the British Foreign Office. In effect, Kenyabecame a British protectorate.From British Protectorate to British Colony12. The declaration of Kenya as a British protectorate was primarily a diplomaticgesture, aimed at the Sultan of Zanzibar, Germany, Italy and Ethiopia. It was adeclaration of exclusion of these powers from this political space that ran fromJubaland to Lake Naivasha.3This ‘diplomatic gesture’ proved a major obstacle tothe British settlers and the British Colonial Office in their attempts to secure cheaploans under the Colonial Stock Act of 1900 for the development of the protectorate.The Colonial Stock Act of 1900 only benefitted British colonies and dominions andnot protectorates.4The crown agents, therefore, advised the colonial office to lookinto ways to change the status of the protectorate to a colony.13. It was this desire to change the status of the protectorate to a colony that exposedthe intricate political arrangement of the territory. It became clear that theincorporationofthe10-milecoastalstripintothecolonywouldarouseinternationalconflicts from other countries that had entered into trading agreements with theSultan of Zanzibar.14. The sultanate of Zanzibar for instance had signed treaties with various states:United States of America in 1833, France in 1862, and Germany in 1886. Thesetreaties recognized the sovereignty of the Sultan. Of particular importance wasthe 1886 Anglo-Germany treaty which internationally recognized the 10-milecoastal strip as the rightful dominion of the sultanate of Zanzibar.5As a result ofmanipulation, persuasions and coercions, the Sultan accepted the proposal andacknowledged that he:3 Atieno-Odhiambo ‘Mugo’s Prophesy’ in W Ochieng’ (ed) Kenya: The Making of a Nation. A Hundred Years of Kenya’s History 1895-1995 (2000) 7.4 M John ‘The Ten Mile Coastal Strip: An Examination of the Intricate Nature of Land Question at Kenyan Coast’ (2011) InternationalJournal of Humanities and Social Sciences 177.5 As above.
  17. 17. 5Volume IIA Chapter ONEREPORT OF THE TRUTH, JUSTICE AND RECONCILIATION COMMISSIONwas the child of His Majesty’s government and was always ready loyally to carry out itswishes. If His Majesty’s government considered the alienation desirable, he was quiteprepared to agree to it.615. Thus, in July 1920, the territory of the East Africa Protectorate was annexed tothe British Crown under the new name Kenya Colony. From then onwards, theformer protectorate became the Kenya Colony. The British colonialists imposedthe state structure on collections of ethno-political communities in Kenya thathistorically lacked the inter-communal coherence. The communities which livedindependently from each other were forced to live together in newly-createdcolonial Kenya7. This imagined or invented political community superimposed intomuch older alignments and loyalties has continue to be a fault line of ethnic socio-political mobilization and conflict till today.Resistance and military expeditions16. The conquest of state and territory for British settlement and exploitation in Kenyawas achieved through colonial violence.8To force Africans into submission, thecolonial administration in Kenya conducted ‘punitive expeditions’ in the 1890sagainst what they called ‘recalcitrant tribes’. There were military expeditionsagainst the Nandi in 1901, 1905, and 1906, against the Embu in 1905, against theAbagusii in 1904, 1908, and 1914, against the Kipsigis in 1905 and against theAbagishu and Kabras in 1907.17. Even the ‘angels’ within the British administration who recommended peacefulmethods of expansion discovered that the majority of the African people werenot willing to forgo their independence without some military show.9Sir ArthurHardinge, the first protectorate commissioner, could even remark: ‘Thesepeople must learn submission by bullets - it’s the only school; after that youmay begin more modern and humane methods of education’.10The aftermathof such violence was destruction of property, rape, torture, death, and destructionto property.6 As above.7 N Peter ‘Colonialism and Its Legacies in Kenya’, Lecturer Delivered During Fulbright Hays Group Project, July 6thto August 6th2009, Moi University-Kenya; O Bethwell “Introduction” in W Ochieng’ (ed) Kenya: The Making of a Nation. A Hundred Years ofKenya’s History 1895-1995 (2000).8 This study borrows from Tirop Simatei’s Work “Colonial Violence, Postcolonial Violations: Violence, Landscape and Memory inKenyan Fiction”. Here colonial violence is understood to mean relationships, processes, and conditions that attended the practiceof colonialism in Kenya and that violated the physical, social, and/or psychological integrity of the colonized while similarly impactingon the colonizer.9 W Ochieng’ A History of Kenya (1985) 89-9010 For details se J Lonsdale ‘The conquest state, 1895-1904’ in O William (ed) (1989) A Modern History of Kenya, 1895-1980(1989) 11.
  18. 18. 6Volume IIA Chapter ONEREPORT OF THE TRUTH, JUSTICE AND RECONCILIATION COMMISSION18. Having been appointed as the first commissioner, Sir Hardinge later realizedthe need to convert the external, costly and destructive force of conquest intointernal, negotiable and productive power.11In order to set up an administrativeand judicial system, Hardinge fell back on the IBEAC administrators, retainingpeople like Charles Hobley and Martin the Maltese. He proceeded to divide theland into provinces and districts. And since administrative boundaries tendedto be based on ethnic or linguistic units, they froze cultural development andpopulation mobility at a certain point in time, thus fossilizing situations whichhad been fluid.12But more importantly, the administrative creativity of Hobleywitnessed the planting of seeds for ethnic hatred as communities started toestablish ownership of their territories to the exclusion of others. Hardinge:had low opinion of the Africans, whom he regarded as barbarous races and he thereforehoped to rely on the Arabs and to a lesser extent, the Swahili people … who accordingto him were a civilizing influence for local administration. The process of dividing theKenyan people into primitive tribes and civilized tribes had begun … and intensified asthe administration spread into the interior”13.19. Sir Arthur Hardinge was succeeded as a commissioner by Sir Charles Elliot,who had an even lower opinion of the Africans. His first task was to consolidateBritish control within the protectorate and to formulate administrative policiesand structures suitable for white settlers. Unlike his predecessor, his actionswitnessed not only grave injustices against Africans, but also widespreadfighting between different African ‘tribes’ in the second half of the 19th Century.The tribal units thus created and defined were encased in district boundaries,but many of these classifications were arbitrary in some cases dividing groupsmore sharply than they had been previously while in others they combinedgroups that were originally distinct. As Ogot aptly concludes, ‘new and biggertribes such as the Luhya, the Kalenjin, and the Mijikenda had been invented …by the Africans themselves to safeguard the interest and welfare of smaller unitsagainst possible domination by the larger groups’. This kind of balancing actionhas tended to intensify ethnic chauvinism and the struggle for the capture of thepost-colonial state14.20. On the ground, the British sought to establish alliances and loyalties of Africans.In so doing, the British sought to manipulate, subvert and at times circumventthe existing indigenous systems of authority. As Atieno-Odhiambo explains:11 As above.12 Ogot Bethwell (2000:21) ‘Boundary Changes and the Invention of Tribes’ in William Ochieng’ (ed) Kenya: The Making of a Nation.A Hundred Years of Kenya’s History 1895-1995 (2000) 21.13 As above.14 As above.
  19. 19. 7Volume IIA Chapter ONEREPORT OF THE TRUTH, JUSTICE AND RECONCILIATION COMMISSION‘the politics of this time were at one level the politics of conquest, but the moreenduring heritage was the politics of manipulation’.15Such were evident as theBritish manipulated leaders of the Maasai namely Olonona, Ole Galisha, andOle Masikonti. The British too manipulated the power equation in Luhya landby inventing empires for Mumia in Wanga and for Sudi Namachanja in Bukusu.This was followed by imposition of new leaders such as Karuri wa Gakure andKinyanjui wa Gathirimu among the Kikuyu. In the coastal region, the Sultan ofZanzibar was manipulated by Sir Edward Northey and the British residents inZanzibar to allow annexation of his 10-mile coastal strip to be part of the newcolony.1621. Practically everywhere in Kenya, as was the case in the rest of Africa, theimposition of colonial rule was resisted. Such resistance inevitably provokedmilitary retaliation from the colonial powers. Better armed and employing crackshot mercenaries, colonial powers imposed their rule by violence and/or militaryexpeditions. This was particularly the case between 1895 and 1914; a phase ofpacification of ‘recalcitrant tribes’ fighting for the preservation of their political,cultural and economic independence.17The period was thus characterized byan unimaginable degree of human rights abuses against defenceless Africans.The military expeditions were accompanied by crimes such as theft, rape,death and destruction of property by the colonial soldiers or their associates.Such actions defy the view that the British colonialist used humane andgentle methods to impose their rule in Kenya.1822. Examples abound of how the British used brutal force to impose its rule. On theKenya coast, Swahili chiefs like Mbaruk were famous for resisting alien rule. Whenthe British took over Kenya, the Mazrui chiefs resisted British rule as they hadrepeatedly done in the past. They knew that they could not win pitched battlesagainst an enemy who was far more powerful and better armed than they. Sothey concentrated on fighting limited engagements and making lightning attacks,and they sustained a fairly successful resistance movement for some time. But theBritish were in Kenya to stay. They therefore imported Baluchistan regiments fromIndia to crush the African resisters.19Mbaruk, the leader of the resistance, fled toTanzania, only to fall into German hands.15 Atieno-Odhiambo (2000:7) “Mugo’s Prophesy” in William Ochieng’ (ed) (2000) Kenya: The Making of a Nation. A Hundred Years ofKenya’s History 1895-1995. Maseno University: Institute of Research and Postgraduate Studies.16 Mwaruvie John op.cit, pg 17717 S Kiwanuka From Colonialism to Independence: Reappraisal of Colonial Policies and African Reactions 1870- 1960 (1973) 20.18 As above, 21.19 As above, 21.
  20. 20. 8Volume IIA Chapter ONEREPORT OF THE TRUTH, JUSTICE AND RECONCILIATION COMMISSION23. Heandfourotherleadersdiedinexile.20ThesamefatebefelltheOgadenSomaliin1889,when they too attempted to resist British rule. Their opposition to British colonialismforced the British to resort to more violent methods. Convinced that the best‘tutors’tomake the Ogaden see reason were bayonets and machine guns, the British in KenyamovedagainsttheOgadenwiththehelpofIndianregimentsin1889.Ogadenresisterswere smashed and hundreds of their cattle confiscated by the British.21Similarly, whileforcing theTaita to submission, Captain Robert H. Nelson remarked:In a few minutes the men cleared out, leaving some fifteen dead on the spot and I haveno doubt that a good many received fatal wounds. I then marched on to the village ofthe men who had been fighting us, burning the surrounding villages and seizing thesheep and goats belonging to them.2224. In the Mount Kenya region, Colonel Richard Meinertzhagen also led many bloodyexpeditions between 1902 and 1906, in which many Kikuyu and Tharaka peoplewere killed and about 11,000 head of stock captured.25. British soldiers, porters and other associates made more injustices in westernKenya, particularly among the Kisii and the Luo people. When a message arrivedin 1905 of the Kisii revolt, a detachment of a hundred African Police under RobertForan and a company of the Third King’s African Rifles (KAR) under captainJenkins were immediately dispatched to quell it. This is how Foran described theencounter:The machine gun was kept in action so long during this sharp engagement that itbecame almost red-hot to the touch. Before then … they left several hundreds deadand wounded spearsmen heaped up outside the square of bayonets. This was not somuch a battle as a massacre, but wholly unavoidable under the circumstances. It was anurgent case of decimating the determined attack or else being completely wiped out bythe Kisii warriors.2326. In 1908, the British organized another expedition, when the Kisii ambushed andspeared a colonial administrator, Northcote. One of the relief patrols headed by Foransent to Northcote’s aid explained that ‘… the African Rifles were putting in somestrenuous work – burning villages, devastating standing crops, capturing livestockand hunting down the bolting warriors’24A series of telegrams conveyed the resultsof the expeditions to the colonial office in London. On 1 February 1908, a telegramreceived by the colonial office read in part:‘Result of operations in Kisii to 28 January -20 Ochieng’ William A History of Kenya (1985) 90.21 As above.22 As above, 91.23 For details see W Audrey Rural Rebels: A Study of Two Protest Movements in Kenya (1977) 25.24 As above.
  21. 21. 9Volume IIA Chapter ONEREPORT OF THE TRUTH, JUSTICE AND RECONCILIATION COMMISSIONcattlecaptured5,636sheepandgoats3,281and100Kisiikilled’.Twodayslateranothertelegram reported the number of Kisii dead had risen to 160.25Manipulations27. The British colonialists’injustices against the people of Kenya were not only limitedto the 1895-1914 military expeditions. British administrators and functionariesused manipulation, colonial laws and policies, and continued to use violenceand harassment to appropriate both human and natural resources from Kenyathroughout the colonial period.28. Manipulations were more evident in the signing of treaties involving Britishadministrators and African leaders to create frontiers for European settlers fromBritain, Canada, South Africa, Australia and New Zealand. One such ‘treaty’ whicheasily comes to mind was the first and the second Maasai Treaty of 1904 and 1911.Thefirsttreaty,signedwithouttheknowledgeoftheMaasaipeople,agreedtomovethe Naivasha Maasai en masse to the Laikipia plateau, together with their cattle.Such a move enabled white settlers to occupy the whole of the Rift, Zedong andGong. But even this grave injustice committed against the Maasai by the colonialgovernment did not satisfy the appetite of the white settlers for more productiveland. They pressed that the Laikipia Maasai should be moved again to a southernreserve so that the Maasai tribe could be together in a United Maasai Reserve. On4 April 1911, the second Maasai agreement was signed according to which thenorthern Maasai had agreed to move to the southern reserve. Subsequently, thenew Maasailand was declared a closed area and the policy of reservation for thenew tribe continued throughout the colonial period. As such, attempts to furtheralienate Maasai land during the post-colonial period engendered strong ethnicfeeling among the people.2629. It was not only the Maasai who suffered colonial manipulations, the same wasthe case in the Kiambu-Thika area from 1903 to 1908, central Rift Valley 1904to 1914, and lastly in the Kericho to Nyeri/Nanyuki areas through the soldiersettlement schemes following the First World War. This last scheme left theKipsigis without Kimulot, the Nandi without Kipkarren valley, the Sabaot withoutthe Trans-Nzoia pastures and made the Samburu, Meru and Kikuyu squatters inthe Timau-Nanyuki areas.2725 As above.26 For details, see O Bethwell ‘Boundary Changes and the Invention of Tribes’ in William Ochieng’ (ed) Kenya: The Making of aNation. A Hundred Years of Kenya’s History 1895-1995 (2000) 21; Ochieng’ William A History of Kenya (1985) 90.27 Atieno-Odhiambo (n 3 above) 8.
  22. 22. 10Volume IIA Chapter ONEREPORT OF THE TRUTH, JUSTICE AND RECONCILIATION COMMISSIONChiefs and forced labour30. British officials, with African submission to their authority after pacification, werepressed by the reluctant metropolitan taxpayers to find means of making thecolonial territories self-financing. They achieved this through the creation ofthe office of the chief as agents of local administration and tasked them withthe responsibility for tax collection, maintenance of law and order and moreimportantly to supply cheap labour for public and settler requirements. It wasthe assignment of these tasks which put the colonial chiefs at the forefront in theabuse of human rights.31. During the mobilization of labour for Europeans, chiefs were empowered by aseries of labour laws to call out any number of able-bodied persons to labourwithout pay on public works28. This mandate was extended at the outbreak ofWorld War 1 to finding able-bodied manpower for the First World War, a war thatcaused the death of over 50,000 Africans and left thousands more wounded.Astonishingly, most Africans who were recruited into the war had very limitedunderstanding of why the Europeans were fighting. In 1919 the Northey Circularspelt out its extension to embrace the directive on African labourers to work forsettlers at very low wages. These aspects of chief authority were backed by force.Chiefs had retainers who in the process of tax collection, punitively confiscatedpeoples’ animals and produce, seized their women and routinely whipped theyoung men.29Such coercive chiefly authority, supervised and approved by thedistrict commissioners, brought in the intense hatred of the system, even in thepost-colonial period.32. In his 1936 report on Kenya’s finances, Sir Alan Pim identified two potentialopportunities for corruption - the counting of huts for hut tax, and the enforcementof tax payment by chiefs. The hut counters responsible for determining tax liabilitywere, certainly not of a type likely to be exempt from the temptation to make alittle money; they used both influence and bribery to exempt some who wererequired to pay and to extort taxes from those who were not. Additionally, due tolimited staffing at the district level, collection was largely enforced by employingthe services of the chiefs or headmen with their various satellites. This unavoidablygave opportunities for the abuse of authority, either in the direction of usingimproper means to enforce payment, or in connection with applications forexemption.28 Ochieng’ William A History of Kenya. Nairobi (1985) 16.29 Atieno-Odhiambo (n 3 above) 8
  23. 23. 11Volume IIA Chapter ONEREPORT OF THE TRUTH, JUSTICE AND RECONCILIATION COMMISSIONLand alienation33. After the First World War, the colonial administration was keen at increasing thenumberofsettlers,increasingsettlerlandholdingandboostingsettleragricultureby providing them with good infrastructural services. Needless to say, the landalienated to the settlers was carved out of the most fertile regions, land whichwas inhabited by the Africans. Therefore, the main injustice on Africans afterthe First World War focused on land alienation and the creation of the Africansquatters, both in Central and the Rift Valley regions of colonial Kenya.34. In enforcing this injustice, the colonial administration introduced the CrownLands Ordinance of 1915,30which declared all ‘waste and unoccupied’ land inthe protectorate ‘Crown Land’ subject to the governor’s powers of alienation. Inthe British imagination, such land included any empty land or any land vacatedby a native.31The protectorate administration gave no cognizance to customarytenure systems, and by 1914 nearly 5 million acres (2 million hectares) of land hadbeen taken away from Kenyan Africans, mostly from the Kikuyu, Maasai and Nandicommunities. It created the reserves for‘natives’and located them away from areasscheduled for European settlement. These developments witnessed the creationof what Mamdani refers to as ‘citizen’ (settlers) and ‘subject’ (Africans) – a dualsystem of land tenure and land administration to consolidate colonial rule.3235. Colonial appropriation of land and alienation of a large section of the African peopleproduced a situation where by 1930, probably more than 15 000 Kiambu Kikuyu hadlost their land ownership, while a similar number lost their communal or ‘tenant atwill’ use of land. Thus, approximately 30,000 Kikuyu had lost land rights in Kiambudistrict alone. About half that number lost land rights in Muranga and Nyeri districts.The total loss of land among the Kikuyu could therefore involve well over 45,000people. Annual reports for the period indicate that there were 41,156 Africans inEuropean-settled areas of Nakuru and Naivasha and these would seem to supportour estimates, given that the majority of Africans in these areas were Kikuyu.3336. Other ‘troublesome communities’, like the Talai, were in 1934 forcibly evicted fromKericho/Nandi areas on accusations of being extortionist and sent to open jails inLambwe, a tsetse-flies infected area in a valley where sleeping sickness was rampant.30 S Wanjala Essays on Land Law: The Reform Debate in Kenya (2002).31 Syagga Paul (undated) Public Land, Historical Land Injustices and the New Constitution. Society for International Development(SID): Constitution Working Paper No. 932 M Mamdani Citizen and Subject: Contemporary Africa and the Legacy of the Late Colonialism (1996).33 Alila Patrick Kinyanjui Kabiru, and Wanjoyi Gatheru (Rural Landlessness in Kenya (1985) 2.
  24. 24. 12Volume IIA Chapter ONEREPORT OF THE TRUTH, JUSTICE AND RECONCILIATION COMMISSIONIt was described as the‘Valley of Death’where 30 years earlier, 60 percent of Lambwevalley inhabitants had been killed by diseases.3437. By 1945, there were about 203,000 people rendered squatters and labourers inEuropean farms, with 101,000 Kikuyu as resident labourers on European farms andabout 21,000 more employed mainly in the government’s department of forestry. Asubstantial number of Africans in the settled area were not enumerated in this labourcensus and the total number of the Kikuyu in the alienated area must have been alot more than 150,000 by 1945. No wonder, three years later, in 1948, the number ofKikuyu recorded as living outside their ‘native reserves’ was more than 294,000 ornearly 29 percent of the total Kikuyu population. Some of them lived in towns or inother African reserves, but nearly all of them had been effectively uprooted by theprocess of alienation. They were outside their reserves in search of work and or newland as a means of subsistence.3538. The creation of reserves in areas deemed unsuitable for European settlement hadfar-reaching implications, both for the natives and the colonial administration.Underlying them was a policy of exploitation and oppression against thecolonizedpeopleaccentuatedbylandalienation,forcedmalelabourmobilization,overcrowding, insecurity, stagnation in African agricultural production, massivelandlessness and rapid land deterioration due to fragmentation, over-stockingand soil erosion.39. In the long term, the problems in the reserves led to unrest and eventually to apolitical uprising – the Mau Mau resistance movement that organized aroundthe issue of foreign rule, land alienation and political and economic inequality.36The colonial state’s answer to the unrest was to initiate an ambitious project ofland tenure reform in the reserves that would serve as a bulwark against ruralradicalism. The colonial agronomist’s thought about the individualization of landtenure was first contained in the less well-known JH Ingham Report published in1950. However, the blueprint that was to destroy the indigenous/communal accessto land was formulated by Roger Swynnerton in what was to be known as the1954 Swynnerton Plan. The architect of this plan argued persuasively in support ofindividualization of tenure in Kenya as a pre-condition for enhanced agriculturalproduction37.34 D Anderson ‘Black Mischief: Crime, Protest and Resistance in Colonial Kenya’ (1993) 36 The Historical Journal 36, 851-87735 For details see: A Patrick et al Rural Landlessness in Kenya (1985) 2.36 S Okuro Land Reforms in Kenya: The Place of Land Tribunals in Kombewa” in Elisio Macamo ed. Negotiating Modernity (2005).37 Studies have shown that those on whose names land was registered as principal landholders-men, assumed exclusive individualrights in given pieces of land at the expense of women, widows and juniors whose rights to land remained either secondary orusufruct.
  25. 25. 13Volume IIA Chapter ONEREPORT OF THE TRUTH, JUSTICE AND RECONCILIATION COMMISSIONMau Mau War40. The Mau Mau war, from 1952 to 1955, marked the climax of African resistance toBritish colonial rule in Kenya. It was a key event in Kenya’s history. Recent studiesby Caroline Elkins, David Anderson and Charles Hornsby have demonstrated theextent of British atrocities hitherto undocumented in Kenyan History.41. In contrast to the conventional notion that the counter-insurgency was aimedat the Mau Mau militants, Elkins recognizes that the British interned practicallythe entire Kikuyu population as Mau Mau. Key to this was turning the insurgencyinward, into a battle of Kikuyu militants against Kikuyu loyalists, thereby turningMau Mau insurgency into civil war. The turning point came on the night of 26March 1953, at Lari, which was the site of two successive massacres, the first bythe Mau Mau and the second by homeguards. During this massacre, Andersondescribes how the Mau Mau militants herded Kikuyu men, women and childreninto huts and set them on fire, hacking down with pangas anyone who attemptedescape, before throwing them back into the burning huts. The vast majority of the400 killed at Lari were women and children.42. But even more importantly, the Mau Mau started to target, less and less the settlerson the highlands or even less the colonial power itself, but increasingly those theyperceived as local beneficiaries of colonial power, turning neighbours and relativesagainst each other in a rapidly brutalizing civil war. This was not the only massacre;the colonial administration also committed a similar massacre in Hola in 1959 inwhich 11 detainees were clubbed to death, with 77 having permanent injuries.38The submissions of Michael Gerard Sullivan, the colonial officer in-charge of Holacamp to the commission investigating the death of the detainees revealed the firminstructions from Compell, the deputy commissioner of prisons, to torture the MauMau detainees by denying them drinking water for a number of hours, weedingrice fields with bare hands and use of batons on the non-cooperative ones.3943. Elkins has indeed demonstrated the injustices meted on the Mau Mau by the colonialpolice and the loyalist. For example she argues that electric shock was widely used, aswell as cigarettes and fire. Bottles (often broken), gun barrels, knives, snakes, vermin,and hot eggs were thrust up mens rectums and womens vaginas. The screeningteams whipped, shot, burned and mutilated Mau Mau suspects, ostensibly to gatherintelligence for military operations and as court evidence.38 M Wunyabari Mau Mau and Kenya: An Analysis of a Peasant Revolt (1993).39 KNA, Documents related to the death of 11 detainees at Hola camp in Kenya. Reference No. K967.62
  26. 26. 14Volume IIA Chapter ONEREPORT OF THE TRUTH, JUSTICE AND RECONCILIATION COMMISSION44. Between 150,000 and 320,000 Africans were detained for varying lengths of timein more than 50 detention and work camps. The treatment in the camps, staffedby little trained non-Kikuyu, loyalists and European settlers, was often brutal. Theinformation about what was happening there was carefully controlled and thecolonial office and the governor systematically denied reports of mistreatment.Elkins’ extended descriptions of the regime of torture, one is struck by itspredominantly sexual nature. Male detainees were often sexually abused‘throughsodomy with foreign objects, animals, and insects, cavity searches, the impositionof a filthy toilet bucket-system, or forced penetrative sex’. Women had ‘variousforeign objects thrust into their vaginas, and their breasts squeezed and mutilatedwith pliers.’Variations abounded, with sand, pepper, banana leaves, flower bottles(often broken), gun barrels, knives, snakes, vermin, and hot eggs being thrust upmen’s rectum and women’s vaginas. A common practice during interrogation wasto squeeze testicles with pliers. Josiah Mwangi Kariuki (popularly known as J.MKariuki) was detained in 14 detention camps between 1953 and 1960. In his book‘Mau Mau Detainee’, he wrote that his experience at Kwa Nyangwethu detentioncamp was the worst:Kwa Nyangwethu was, however, particularly bad and was notorious not for merebeatings, but for castration. I have seen with my own eyes that Kongo Chuma whomI first met in Nakuru before he was detained and who is now living at Kianga inEmbu district, has been castrated. He had not been like this when he was in Nakurubut when we met in the detention camp at Athi River he told me it has been done tohim by the screeners at Kwa Nyangwethu. He also told me that bottles of soda waterwere opened and pushed into the uterus of some women to make them confess.Kongo said these things were done by the Africans but the European officers knewwhat was going on.4045. The Mau Mau fighters were also responsible for unspeakable atrocities. Contrary toAfrican customs and values, they assaulted old people, women and children. Thehorrors they practiced included decapitation and general mutilation of civilians,torture before murder, bodies bound up in sacks and dropped in wells, burningvictims alive, gouging out of eyes and splitting open the stomachs of pregnantwomen41. Mau Mau officially ended with the capture and execution of DedanKimathi, the uprising’s most senior leader in October 1956. While the figures aredebatable, the Mau Mau are said to have caused the death of at least 14,000Africans, 29 Asians and 95 Europeans.40 JM Mwangi Mau Mau Detainee (2009) 30.41 O Bethwell Alan ‘BRITAINS GULAG Histories of the Hanged: Britains Dirty War in Kenya and the End of Empire. ByDAVID ANDERSON. London: Weidenfeld and Nicolson, 2005. Pp. viii+406 (ISBN 0-297-84719-8). Britains Gulag:The Brutal End of Empire in Kenya. By CAROLINE ELKINS (London: Jonathan Cape, 2005). Pp. xiv+475". TheJournal of African History (Cambridge University Press) 46: 493–505.
  27. 27. 15Volume IIA Chapter ONEREPORT OF THE TRUTH, JUSTICE AND RECONCILIATION COMMISSION46. To establish the root causes of Mau Mau, the colonial administration appointedthe Corfield Tribunal, which relied extensively on psychologist JC Carothersand in their report recorded 11,503 Mau Mau dead. It was understandable thatthe number was under-estimated to disguise the ferocity of the colonial officeresponse to Mau Mau. A thousand were hanged upon being convicted by courts,while more were killed by troops in the forest. There were also extra-judicialexecutions by the colonial police and homeguard units. Moreover, the beatingand torture of Kikuyu suspects was commonplace, and the security forcesmurdered hundreds. The Mau Mau war did not only mark the end of the Africanresistance against colonial rule, but it was the climax of colonial atrocities onAfricans suspected to be members of Mau Mau.47. In 1999, a few former fighters calling themselves the Mau Mau Original Groupannounced that they would attempt a £5 billion claim against the UK, on behalfof hundreds of thousands of Kenyans for ill-treatment they said they sufferedduring the rebellion. In November 2002, the Mau Mau Trust - a welfare groupfor former members of the movement - announced it would attempt to sue theBritish government for widespread human rights violations committed againstits members. With the assistance of the Kenya Human Rights Commission, in2011, the Mau Mau group succeeded in suing the British after a British courtruled that the Kenyans could sue the British government for their torture.48. After the Mau Mau War, the colonial government not only relaxed the ban onthe formation of African political parties, but also attempted to increase Africanrepresentation in the colonial administration. The colonial administrationpermitted the re-establishment of African district- based political parties and/or associations and disallowed national organizations. The first to be registeredwas the Nairobi District African Congress in April 1956, with Mau Mau lawyerArgwings Kodhek as the president. The other district-based associations thatemerged at this time were the Mombasa African Democratic Union, the AfricanDistrict Association, the Abagusii Association of South Nyanza District, the SouthThere were also extra-judicial executions by the colonialpolice and homeguard units. Moreover, the beating andtorture of Kikuyu suspects was commonplace, and the securityforces murdered hundreds.
  28. 28. 16Volume IIA Chapter ONEREPORT OF THE TRUTH, JUSTICE AND RECONCILIATION COMMISSIONNyanza District African Political Association, the Taita African Democratic Union,the Nakuru African Progressive Party, the Nakuru District Congress, the AbaluhyaPeoples Association and the Nyanza North African Congress42.49. One of the legacies of these district-based political associations was that the paceof political developments among the various districts continued to be unevenand parochialism rooted in ethnic loyalties was encouraged at the expense ofAfrican unity.43It provided the foundation of alignment of political orientation andethnicity. The other effect was the emergence of local powerful figures that wouldresist attempts at political centralization by colony wide political organization suchas the Kenya African National Union (KANU).50. The process of increasing African and other races’ representation into the colonialadministration was initiated by the British Colonial Secretary Oliver Lyttletonin 1954. In his advice to the administration, he said ‘it is prudent to have all theinhabitants of the colony to share in the responsibility of government, albeit at asubservient level’. His advice resulted in the enactment of the Lyttleton Constitutionin 1954, which put in place institutional structures to curb anti-colonial revolts,establish a multi-racial society and provide a timetable for independence. Butin reality it asserted minority interests while the language of democracy wasemployed to hoodwink the majority.44The War Council created by the constitutionwas racially exclusive and emerged as the supreme organ with powers to enactlegislation to deal with the Emergency without reference to the legislative council.Even the Council of Ministers was by and large in the hands of a handful of settlers.The contradictions emanating from the dispensation of the Lyttleton Constitutionculminated in protracted political struggle in which Africans, Arabs and Asiansdemanded an all-inclusive political process. The political crises after the 1957general election witnessed the enactment of another constitution, the LennnoxBoyd Constitution in 1956.51. While the Lennox Boyd Constitution increased the number of African representativesin the Legislative Council, it did not adequately address the Africans’ grievances.However,itsharpeneddivisiveracialandethnicpoliticalintereststhatspilledoverintothe 1960 Lancaster House Constitutional Conference where a new constitution wasnegotiated. Therefore the Lancaster House conferences became a space for contestby various racial groups and emerging political elites and commitment to democraticand social change remained abstract.4542 Ogot Bethwell and Ochieng William (eds) Decolonization and Independence in Kenya (1995) 52.43 As above.44 For details see: Samwel Alfayo Nyanchoga et al Constitutionalism and Democratisation in Kenya, 1945- 2007 (2008).45 As above.
  29. 29. 17Volume IIA Chapter ONEREPORT OF THE TRUTH, JUSTICE AND RECONCILIATION COMMISSIONPresident Jomo Kenyatta’s Era52. On 12 December 1963, Kenya got independence from British rule with JomoKenyatta as the Prime Minister. A year later, Kenya became a Republic with JomoKenyatta as the President and Jaramogi Oginga Odinga as the Vice President.Within a short period into independence, gradually returned to the ways of thecolonial master. The government and the ruling political party, Kenya AfricanNational Union (KANU), not only retained repressive colonial laws, but also becameincreasingly intolerant of political dissent and opposition. Political assassinationsand arbitrary detentions were turned into potent tools for silencing dissentingvoices and ultimately for dismantling opposition political parties. For the largerpart of Kenyatta’s reign Kenya was a de facto one-party state.Official amnesia53. TheattainmentofKenya’spoliticalindependenceonthe12December1963,withJomo Kenyatta as the first Prime Minister, marked the culmination of 68 years ofanti-colonial struggles waged by Kenyan Africans to free themselves from Britishdomination, oppression and exploitation. However, in his independence speech,Jomo Kenyatta did not suggest any substantial change in the colonial structures.Thecolonialstatewouldremainintact–despitethefactthatthefightfornationalindependence had been dominated by demands for social justice, egalitarianreforms, participatory democracy, prosecution of those who had committedmass killings and other forms of crimes during the war of independence, andthe abolition of the colonial state and its oppressive institutions.54. Also, in his independence speech, Jomo Kenyatta never mentioned theheroism of the Mau Mau movement.46No Mau Mau freedom songs weresung, no KLFA leaders was allowed to speak during the historic day. Instead,Kenyatta asked the people to forget the past – to forgive and forget theatrocities committed against them by the British and their Kenyan supportersduring the war of independence47. He became no radical on nationalizationof foreign-held assets including land and often remarked: “I regard titles as aprivate property and they must be respected … I would not like to feel thatmy shamba (smallholding) or house belongs to the government. Titles mustbe respected and the right of the individual safeguarded48”. In this way, theKenyatta administration provided a relief to the settler community that theirland will not be taken away from them without compensation.46 The usage of KLFA to refer to Mau Mau is rather problematic in literature. KLFA is not simply another name for Mau Mau: it was thename that Dedan Kimathi used for a coordinating body which he tried to set up for Mau Mau. It was also the name of another militantgroup that sprang up briefly in the spring of 1960; the group was broken up during a brief operation from 26 March to 30 April47 Maina wa Kinyatti (2008:363) History of Resistance in Kenya, 1884-2002 (2008) 63.48 For details see Daniel Branch Kenya: Between Hope and Despair, 1963-2011 (2011)
  30. 30. 18Volume IIA Chapter ONEREPORT OF THE TRUTH, JUSTICE AND RECONCILIATION COMMISSION55. The attainment of political independence shadowed several tensions andcleavages which occupied the new ruling elites prior to and immediately afterindependence.49For example, the radicals represented by Oginga Odinga andBildad Kaggia who favoured nationalization of foreign owned corporations,seizing of white settler farms without compensation and following more pro-Eastern foreign policy. Odinga persuasively argued that “I understand thatin communist countries the emphasis was on food for all. If that was whatcommunism meant then there was nothing wrong with that50”. He as hissupporters opted to look to Soviet Union, China and their allies for backing.On the other hand, conservatives led by Jomo Kenyatta and Tom Mboya - thenationalists who espoused a constitutionalist and reformist approach andwere after independence concerned with the maintenance of the coloniallegacy. As the struggle raged for control of the state, decisions based on short-term expediency were interspersed with fundamental directional choices.56. Kenya soon returned to a command and control leadership model strikinglysimilar to that of the colonial era. Decisions about development, money andmilitary protection drove foreign relations, domestic policy and land policy,which in turn drove greater centralization and a conservative social andpolitical model that combined individual accumulation with a partisan andinterventionist state.51The struggle for power saw the abandonment of theMajimbo Constitution, which conceded much autonomy to the regions for a defacto one party state. The dissolution of the Kenya African Democratic Union(KADU) was a critical moment, setting the stage for three decades of single-party dictatorship and prioritisation of the maintenance of public order by theKenyatta administration.Dealing with Mau Mau57. Jomo Kenyatta took over power in a country which was already polarized bythe Mau Mau issue over land and more importantly“ownership of the fight forindependence”. The reason for this was the expectation that those who foughtfor Uhuru (independence) should exclusively eat the fruits of independence52.This debate thrived even in the context of the revelations that Kenya had manypowerful voices in the anti-colonial movement. Indeed Bethwell Ogot hasdemonstrated the roles and responsibilities of all the communities in Kenya, inanti-colonial movements53. Therefore the first issue which Jomo Kenyatta hadto deal with was the Mau Mau – a movement whose main agenda revolved49 For details see: Hornsby Charles Kenya: A History Since Independence (2012)50 For details see Branch (n 48 above) 36. 201151 As above.52 E Atieno Odhiambo ‘Matunda Ya Uhuru, Fruits of Independence: Seven Theses on Nationalism in Kenya’ in E Atieno Odhiamboand John Lonsdale (eds) Mau Mau and Nationhood: Arms, Authority and Narration (2003).53 O Bethwell ‘Mau Mau and Nationhood: Untold Story’ in ES Odhiambo and J Lonsdale (eds) Mau Mau and Nationhood: Arms,Authority and Narration (2003).
  31. 31. 19Volume IIA Chapter ONEREPORT OF THE TRUTH, JUSTICE AND RECONCILIATION COMMISSIONaround land and the colonial land alienation among the Kikuyu, which hadcreated a special group of Kikuyu without land54. Before independence,Kenyatta had pardoned the remaining Mau Mau detainees in prison andissued an amnesty for Mau Mau fighters to leave the forest and surrender theirweapons. More than 2,000 did so in the first weeks after independence far morethan the British had expected55. But after the amnesty for Mau Mau expired inJanuary 1964, the government started treating the remnants as criminals.58. By early 1965, most of the remaining Mau Mau hard-core fighters had beencaptured and killed by the new independent government. The Mau Mau whomade good their threat to return to the forest under the slogan of ‘Not yetUhuru,’ Baimungi, were quickly executed. Kenyatta’s message in the 1960swas clear - there would be nothing for free. In the 1970s, it was politicallyimprudent to be called Mau Mau. Although on paper, Kenya acknowledged therole Mau Mau had played in the struggle for independence; his governmentpersistently downgraded its importance and did nothing to reward the thosewho had suffered. Despite President Kenyatta’s promise in 1964 that the landconfiscated during the Emergency would be returned, nothing happened.59. TheBritishremovedandhidmostrecordsofthewarontheeveofindependencetoprotect loyalists from reprisals and themselves from demands for compensationfor atrocities. Ex-Mau Mau were given no preferential treatment in access to landand jobs.5660. The ex-Mau Mau fighters were thus short-changed after independence. Evenwhen the settlement schemes were initiated between 1963 and 1967, theMaasai whosufferedthemostgotnothingandthe Kalenjin receivedsmall areasaround Sotik and Nandi. The squatters were not any better in their continueddemand for cultivatable land across the highlands. Those living in the formerWhite Highlands were evicted. In the majority of the settlement schemes inNakuru and Nyandarua, the existing squatters were simply removed by force,with new claimants chosen to occupy the plots. The situation of the landlessdid not improve with the sale of larger farms under the ‘willing buyer, willingseller’model. A decade after the implementation, one sixth of the settler landswere found to have been sold intact to the emerging African elite comprisingKenyatta, his wife, children and close associates. These elites did not even needmuch money to buy settler farms, as they were also able to raise loans fromgovernment bodies such as the Agricultural Finance Corporation (AFC) andthe Land and Agriculture Bank.5754 M Patrick The Land Question and the Mau Mau today (2005) IFRA: Kenya Studies, IFRA ~ Les Cahiers, N° 2855 The Times, 19thDecember 196356 Hornsby Charles (2012: 117) Kenya: A History Since Independence. London I. B. Tauris57 As above.
  32. 32. 20Volume IIA Chapter ONEREPORT OF THE TRUTH, JUSTICE AND RECONCILIATION COMMISSIONShifta War61. After dealing with the Mau Mau issue, the next issue that the emergentfragile state had to deal with was the Shifta War. Before independence, theSomali had maintained a constant attack on police posts and army camps inSomali-inhabited regions. Two days after independence, the Somalia stagedfive more incursions, forcing the government to declare a state of emergencyon 25 December 1963. The government became convinced that Somalia wastraining and providing bases for up to 2,000 shifta (bandit) guerrillas. While theshifta used guerrilla tactics, including hit-and-run attacks and mining of roads,the Kenya government adopted British counter-insurgency techniques usedduring the Mau Mau uprising, including the establishment of collective villagessurrounded by barbed wire and guarded by troops. There were widespreadbeatings and killings of civilians and mass confiscation of livestock. As withthe Kikuyu in 1953 to 1955, every Somali was seen as a potential shifta andtreated accordingly, although, there was no equivalent of the detention camppipeline, and the loyalists were not so well rewarded.62. The government used its ability to detain without trial anyone it believedto be helping the shifta. No official death figures were published for theconflict, which received little international attention. The conflict establishedpatterns of suspicion and hostility between ethnic Somali and other Kenyansthat has endured for decades. Development in the colonial era in NorthEastern where the Somali live had been non-existent and this changed littleafter independence. The state treated the Kenyan Somali as subjects ratherthan citizens and the region as a military-ruled colony.Consolidation of power63. On 24 January 1964, there was a strike by several hundreds of soldiers ofthe Kenya Rifles 11thBattalion, based in Lanet near Nakuru. The mutineerswere driven by disgruntlement over pay, working conditions, and fear oftheir future under the KANU government which held on to British expatriateofficers. With increasing internal tensions and external threats, the Kenyattaregime became even more repressive after the January 1964 mutiny. With noreference to the cabinet, Kenyatta appealed for and received the support ofthe British Army units to restore order without significant bloodshed.64. But to make an example to mutineers, 43 soldiers were court-martialed, andthe military court jailed 16 ring leaders for a total of 197 years. To consolidatepower, the Kenyatta regime supported constitutional amendments between1964 and 1969 whose objective were to destroy democratic institutions while
  33. 33. 21Volume IIA Chapter ONEREPORT OF THE TRUTH, JUSTICE AND RECONCILIATION COMMISSIONprotecting the KANU-led government and the interests of the compradorclass.58Selected constitutional amendments (1963-1969)The Constitution of Kenya (Amendment) Act No. 14 of 1965This Amendment Act reduced the threshold for amending the Constitution from 90percent to 65 percent in Senate and 75 percent to 65 percent in the National Assembly.It also increased the days within which Parliament should approve a state of emergencyfrom 7 to 21 days. Importantly, it reduced the threshold for approval of state ofemergency from 65 percent to a simple majorityThe Constitution of Kenya (Amendment) Act No. 16 of 1966The Amendment Act introduced the rule that a Member of Parliament would lose hisseat in Parliament if he missed 8 sittings or was imprisoned for a period of over sixmonths. This amendment was intended to deal with KANU ‘rebels’ and those who hadjoined KPU. The amendment also increased the President’s powers to rule by decree inNorth Eastern Province.The Constitution of Kenya (Amendment) (No. 2) Act No. 17 of 1966 (Turn Coat Rule)UnderthisAmendmentAct,aMemberofParliamentwouldbylawlosehisparliamentaryseat of he defected to another political party. The amendment was meant to deal withMembers of Parliament who had defected from KANU to KPU.The Constitution of Kenya (Amendment) (No. 3) Act No. 18 of 1966This Amendment Act increased the period for National Assembly’s review of emergencyorders from 2 to 8 months. It permitted greater and wider derogation powers offundamental rights and freedoms. It also removed the provision calling for reasonablejustification for such derogations. This amendment was intended to allow for detentionof KPU members who had defected from KANU.The Constitution of Kenya (Amendment) Act No. 13 of 1967This Amendment Act was intended to clear doubt over section 42A which spelt out theTurn Coat Rule. It backdated the effect of the Fifth Amendment to 1963.The Constitution of Kenya (Amendment) (No. 2) Act No. 16 of 1968Under this Amendment Act, independent candidates were barred from participating inelections.The amendment also removed parliamentary approval for state of emergencydeclaration.The Constitution of Kenya (Amendment) Act No. 5 of 1969This amendment Act consolidated all the constitutional amendments as at February1969 thereby resulting in a revised Constitution of Kenya in a single document whichwas declared to be the authentic document.58 For details see: Samwel Alfayo Nyanchoga et al (2008) Constitutionalism and Democratisation in Kenya, 1945- 2007. CatholicUniversity of Eastern Africa
  34. 34. 22Volume IIA Chapter ONEREPORT OF THE TRUTH, JUSTICE AND RECONCILIATION COMMISSION65. The polarization of the country between the radicals and the conservativescontinued to remain a threat which Kenyatta had to handle. The first attemptto deal with this situation was the development of Sessional Paper Number 10of 1965, which was a mix of the socialist and capitalist models, rejecting bothMarxism and laissez-faire capitalism, and stressing African traditions, equity andsocial justice. Kenyatta made it clear in his introduction to the paper that theintent was not to stimulate discussions on Kenya’s economic policy, but to endit. However, Oginga Odinga and his camp instructed Pio Gama Pinto to preparea competing paper to mobilize for the rejection of the government sessionalpaper. But before Pinto could prepare the parallel paper, he was murdered on24 February 1965 outside his home in Nairobi by people believed to have beenauxiliaries loyal to Kenyatta. The killing of Pinto marked the process of politicalassassinations under the Kenyatta regime.66. The year 1966, marked the turning point in Kenya’s political history andwitnessed the introduction of the motion of confidence in the president by TomMboya without the knowledge of Oginga Odinga, who was then the leaderof government business. The year also saw the holding of the KANU NationalDelegates Conference in Limuru, which created a new position of eight newprovincial vice-presidents. These actions forced Odinga and his supporters topursue the constitutional opposition by forming a political party, the KenyaPeoples Union (KPU). On 14 April 1966, Odinga resigned as vice-president andtogether with his supporters joined KPU. In his resignation statement, Odingaargued that he refused to be part of a government “ruled by undergroundmasters serving foreign interests”, and accused the Limuru Conference of beingrigged in favour of Kenyatta and his allies. The Kenyatta regime also passed thePreservation of Public Security Act in 1966, which provided the state with widepowers for detention without trial and allowed control of free movement, theimposition of curfews and press censorship. The Act was used effectively from1966 to 1968 in dealing with those perceived to be critical of the Kenyatta regime,particularly in the jailing without trial of Odinga and KPU supporters.67. Next was the assassination of Tom Mboya on 5 July 1969 in the current MoiAvenue.59As with Pinto’s death, the apparent culprit was a petty crook withconnections to the intelligence service who was charged with the murder on 21July the same year. Facing a revolt from the Luo and the growing support forchange among many Kenyans horrified by Mboya’s assassination, Kenyatta’sclosest allies reverted to their ethnic bailiwicks, through oathing to force Kikuyuvoters to return sitting members of parliament in the election.68. KPU MP Okelo-Odongo claimed that those being oathed were stripped naked,tied with a rope around their neck and forced to swear to fight the Luo and not59 Other prominent leaders and academicians who died in politically controversial circumstances included but were not limited toArgwings Kodhek (1969) and Ronald Ngala (1972)
  35. 35. 23Volume IIA Chapter ONEREPORT OF THE TRUTH, JUSTICE AND RECONCILIATION COMMISSIONto allow any other tribe to lead Kenya.60The worst came on the 25 October1969, when Kenyatta visited Kisumu to open the Russia-built Nyanza ProvincialGeneral Hospital. The opening of this health facility coincided with the KisumuDistrict sports day, with a huge number of students attending. Odinga was notinvited, but he and his supporters came in force shouting Dume (Bull, the partysymbol of KPU).69. In the ensuing commotion, a full-scale riot erupted, the presidential escortand the dreaded crack paramilitary General Service Unit (GSU surroundedthe president, shot their way through the threatening crowd and continuedshooting 25 kilometres outside the town. When the dust settled, the ‘KisumuMassacre’of 1969 was complete, with many shot dead, including school pupils,by the presidential security. Virtually all the films of the incident was seizedand destroyed. Odinga and his supporters were arrested and detained withouttrial and KPU, the party associated with Odinga was banned. A curfew wasimposed in Central Nyanza and Siaya and hundreds were arrested.70. Although KPU was banned and its leaders arrested, after 1969 Kenyatta’slegitimacy and that of his government was still being questioned by left-wing politicians. Kenyatta himself became more intolerant of dissent and thecentralization of power around him encouraged sycophancy, exploitationand the creation the so-labeled ’Kiambu Mafia‘ Josiah Mwangi Kariuki wasthe government’s most influential critic between 1970 and 1974. ‘J.M’ Kariukicatalysed the wishes of the poor, landless and those unhappy with the directionthat Kenya was taking. It was Kariuki who coined the phrase“we do not want …a Kenya of ten millionaires and ten million beggars”. He was also at the forefrontof the fight against corruption and the social policies of the government. Asassistantministerfortourismandwildlife,hewasprobablyinvolvedinrevelationsabout poaching and ivory smuggling.6171. Under a state orchestrated fear on 3 March 1975, Maasai herdsmen discoveredJM’s tortured and mutilated corpse on the slopes of Ngong Hills near Nairobi.His fingers had been cut off and his eyes gouged out before he was shot. Thekillers had burnt his face with acid to prevent identification of the body and hisfingerprints were gone. JM’s death also joined the long list of unresolved politicalassassinations during the Kenyatta era. To respond to Kariuki’s murder and torebuild his authority, the Kenyatta regime continued arresting and jailing thosehe labelled troublesome MPs such Jean Marie Seroney, Martin Shikuku, ChelagatMutai, Peter Kibisu, Mark Mwithaga and George Anyona on dubious groundseven within the precincts of Parliament Buildings. As Kenyatta departed fromthe political scene with his death in Mombasa in August 1978, he left a handfulof unaddressed issues including: corruption, tribalism, state orchestratedrepression, political assassinations, and land distribution policies.60 Okelo- Odongo East Africa Standard 12 August 1969.61 For details see Daniel Branch Kenya: Between Hope and Despair, 1963-2011 (2011)
  36. 36. 24Volume IIA Chapter ONEREPORT OF THE TRUTH, JUSTICE AND RECONCILIATION COMMISSIONPresident Daniel Arap Moi’s EraFollowing in Kenyatta’s footsteps72. Daniel arap Moi assumed the presidency after Kenyatta’s death in 1978.On assuming power, President Moi promised that he would follow in JomoKenyatta’sfootsteps.InDecember1978,PresidentMoireleasedallthe26politicaldetainees across the ethnic spectrum, most of whom had been languishingin jail for years (Shikuku, Seroney, Anyona, Koigi wa Wamwere, and Ngugi waThiong’o). He also reassured Kenyans that his administration would not condonedrunkenness, tribalism, corruption and smuggling – problems which werealready deeply entrenched in Kenya under President Kenyatta’s administration.This was partly a strategy geared towards the achievement of specific objectives,namely, the control of the state, the consolidation of power, the legitimisationof his leadership and the broadening of his political base and popular support.62President Moi was well aware of his own underlying problems, especially the factthat he was from a minority community. Leading the country to independencehad brought President Kenyatta economic opportunities that had permittedhim to rule over a period of prosperity.6373. President Moi’s first priority was to secure his position and to weaken not onlyhis most vociferous Kikuyu opponents, but also those he perceived to be criticsof his regime. To achieve his objective, President Moi under the cover of ananti-corruption crusade, systematically started replacing President Kenyatta’scourtiers with his own to topple the Kikuyu ascendancy. Like his predecessor,he also resorted used the law to consolidate his power.74. To bolster his grip on power, President Moi also embarked on the gradual‘Kalenjinisation’of the public and private sectors from the 1980s. President Moi is aTugen, one of the smaller Kalenjin ethnic groups. He began to "de-Kikuyunize" thecivil service and the state-owned enterprises previously dominated by the KikuyuethnicgroupduringPresidentKenyattasadministration.HeappointedtheKalenjinto key posts in, among others, the Agricultural Development Corporation (ADC),Kenya Commercial Bank (KCB), Kenya Posts and Telecommunications Corporation(KPTC), Central Bank of Kenya (CBK), Kenya Industrial Estates (KIE), National Cerealsand Produce Board (NCPB), Nyayo Tea Zones (NTZ), Nyayo Bus Company (NBC),Nyayo Tea Zones Development Corporation (NTZDC) and the Kenya Grain GrowersCooperative Union (KGGCU).64This process marked the rise of the Kalenjin elite,who strategically positioned themselves to benefit from state resources.62 Korwa G. Adar and Isaac M. Munyae ‘Human Rights Abuse in Kenya under Daniel arap Moi 1978-2001’ (2001) 5 African StudiesQuarterly 1.63 Hornsby Charles Kenya: A History Since Independence (2012) 334.64 Ibid
  37. 37. 25Volume IIA Chapter ONEREPORT OF THE TRUTH, JUSTICE AND RECONCILIATION COMMISSIONConstitutional amendments75. President Moi’s government sponsored a series of constitutional amendments in abidtoconsolidatepowerinthepresidency.TheConstitutionofKenya(Amendment)Act No. 7 of 1982 introduced Section 2(A) which had the effect of transformingthe country into a de jure one-party state. Moreover, Parliament reinstated thedetention laws which had been suspended in 1978. The application of a numberof laws had the effect of denying citizens’ enjoyment of human rights. These lawsincluded the Chiefs Authority Act, the Public Order Act, the Preservation of PublicSecurity Act, the Public Order Act, and the Penal Code.The parliamentary privilege,which gave representatives the right to obtain information from the Office of thePresident, was also revoked. Parliamentary supremacy became subordinated tothe presidency and the ruling KANU party.6576. Moreover, the provincial administration became highly politicized and provincialadministrators wielded wide discretionary powers. In 1981, President Moi bannedall ethnic-centred welfare associations. The president also outlawed the civilservants union and the university academic staff union.Selected Constitutional amendments, 1982 -1991The Constitution of Kenya (Amendment) Act No 7 of 1982This Amendment Act introduced Section 2A that changed Kenya from a de facto to dejure one party state. It also abolished the Turn Coat Rule.The Constitution of Kenya (Amendment) Act No 14 of 1986This Amendment Act removed security of tenure of the Attorney General and Auditorand Controller GeneralThe Constitution of Kenya (Amendment) Act No 20 of 1987This Amendment Act made all capital offences non-bailableThe Constitution of Kenya (Amendment) Act No 8 of 1988This Amendment Act made it lawful to detain capital offenders for 14 days before theycould be formally charged in a court of law. It also removed the security of tenure ofconstitutional office holdersThe Constitution of Kenya (Amendment) Act 1990This Amendment Act reinstated the security of tenure of constitutional office holdersThe Constitution of Kenya (Amendment) Act No 12 of 1991This Amendment Act repealed Section 2A of the Constitution hence bringing an endto the de jure one-party rule in Kenya. It also reintroduced the Turn Coat Rule. Thenomination procedure leading to elections of the National Assembly and Presidencywere amended to accommodate multi-party system of governance.65 Weekly Review, Nairobi, 8 May 1987. See also, Ogot, B. A., "Politics of Populism", pp. 187-213, in Ogot and Ochieng,op. cit., 187-213.
  38. 38. 26Volume IIA Chapter ONEREPORT OF THE TRUTH, JUSTICE AND RECONCILIATION COMMISSIONAttempted Coup and the aftermath77. On 1 August 1982 there was a military coup attempt by Kenya Air Force (KAF)officers.The attempted coup was however brutally quashed by Kenya Army officerswho were loyal to President Moi. It was put down at an estimated cost of 600 to1,800 lives lost in addition to other human rights abuses, including arbitrary arrests,detention and torture. The coup attempt and the punitive reaction accelerated theprocess of the control of the state and solidified President Mois authoritarian rule.In 1986, Parliament amended the Constitution to remove the security of tenure ofthe Attorney General and of the Auditor and Controller Genera. This was followedin 1988 by another constitutional amendment that removed security of tenure ofconstitutional office holders. The amendment also made it lawful to detain capitaloffenders for 14 days before they could be formally charged in a court of lawLimitations on the independence of the judiciary, with far-reaching human rightsviolations. By this time, Parliament was functioning largely as a rubber stamp ofpolicies initiated by the presidency.6678. Following the attempted coup, the government resorted to even more vicious andrepressive ways of dealing with dissent. Political activists and individuals who daredoppose President Moi’s rule were routinely detained and tortured. This led to theformation of dissident groups whose main focus was to agitate for opening up of thedemocratic space, social justice and respect for human rights.The best known of thedissidents groups is Mwakenya movement. The government moved to quash thismovement with brutal force. In 1986 alone, 100 people were arrested and detainedfor their alleged association with Mwakenya. Moreover, between March 1986 andMarch 1987, at least 75 journalists, academics, and university students were jailed forcrimes such as the possession of seditious literature. In the 1990s, the governmentused the same tactics to denounce and quash the February Eighteenth Movement(FEM), which was accused of planning attacks on Kenya to be launched from Uganda.Multi-party and ethnic clashes79. But as government’s crackdown of pro-democracy activists intensified so did thepressure on government increased. In 1991, in response to local and internationalpressure prompted by the end of the Cold War, President Moi yielded to demandsfor a multi-party state. However, political and ethnic violence, reportedlyorchestrated by the state became integral to multi-party elections held in 1992 and1997. Ethnicity was used as a political tool for accessing power and state resourcesand for fuelling violence.66 Korwa G. Adar and Isaac M. Munyae ‘Human Rights Abuse in Kenya under Daniel arap Moi 1978-2001 (2001) 5 African StudiesQuarterly 1.
  39. 39. 27Volume IIA Chapter ONEREPORT OF THE TRUTH, JUSTICE AND RECONCILIATION COMMISSION80. From various independent human rights reports, the 1992 and 1997/1998ethnic clashes in the Coast, Rift Valley, and Western Provinces were deliberatelyinflamed for political purposes by members of the government. Violence spreadin the Likoni-Kwale (Coast Province) prior to and after the 1997 elections, in areaswhere opposition to KANU was strong. These clashes led to the displacement ofmany people from their lands in the Rift Valley. Reports by the KHRC indicatesthat the 1991 to 1997 election-related clashes displaced more than 600,000people in the Coast, Rift Valley, Nyanza and Western provinces.6781. The displacements, which were occasioned by the ethnic clashes in the RiftValley has been used to explain the emergence of Mungiki in Kenya.68Most of theMungiki members, are victims of land clashes in the Rift Valley region who wereaffected by ethnic conflicts on the eve of the 1992 multi-party General Electionin Kenya, the majority of whom are either Standard Eight or Form Four schooldropouts composed mainly of low-income earners in the Jua Kali (hot sun) sector.However, in the rest of the country, the ethnic clashes and the use of privatemilitias witnessed the rise of the so-called “armies of the elders” known at leastto be backed by an ethnic leader. For example, during the multi-party era therewere the Taliban, Jeshi la Mzee, Jeshi la Embakasi, Baghdad Boys, Sungu Sungu,Amachuma, Chinkororo, Dallas Muslim Youth, Runyenyes Football Club, Jeshi laKing’ole, Kaya Bombo Youth, Sakina Youth, Kuzacha, Kamjesh, Charo Shutu, SriLanka and the Banyamulenge.69President Mwai Kibaki’s EraGoodwill82. On 30 December 2002, Kibaki was inaugurated as Kenya’s third President.Presidents Kibaki’s NARC government had huge goodwill, both domestically andinternationally. NARC had to come to power on a platform that promised to curband ultimately eliminate the political transgressions and human rights violationsthat had been regularised during the 39 years of KANU’s rule. NARC had alsopledged to address and rectify historical injustices. The first few months of itsoperations the NARC Government initiated numerous legislative and institutionalreforms and a range of activities aimed at redressing past injustices.67 Kenya Human Rights Commission Justice Delayed: A Status Report on Historical Injustices in Kenya (2011).68 Grace N Wamue ‘Revisiting Our Indigenous Shrines Through Mungiki” (2001) 100 Africa Affairs (2001) 454.69 Okuro Samwel “Thinking Through the Chequered History of Mungiki in Kenya. A Historiographical interrogation” (2006) Journal ofHistorical Association of Kenya
  40. 40. 28Volume IIA Chapter ONEREPORT OF THE TRUTH, JUSTICE AND RECONCILIATION COMMISSIONSliding back to old practices83. However, before long, President Kibaki’s government started to renege on itspromises.70The emerging“Mount Kenya Mafia”behaved as its predecessor had done:corrupt,intolerantandethnicallychauvinistic.AsputacrossbyDanielBranch,“behindthe scenes, the newly-appointed ministers and their supporters had quickly easedthemselves into positions at the top of corruption networks’ and that ‘the apparenthypocrisy of the government, whose ministers continued to attack Moi’s regime forits corruption, angered many in KANU”. These corruption networks crystallized intowhat became known as the ’Anglo-Leasing Scandal‘. As was the case with PresidentMoi, the new Kibaki administration soon began to ‘Kikuyunise’ the public service.In essence, despite NARC’s many promises, the new government soon adopted thepractices of its predecessors, and while the economy improved, it unable to reducecorruption and human rights abuses.84. Moreover, during the first term of President Kibaki’s administration, insecurityremained high, particularly between 2005 and 2008. In January 2005, more than50 Kenyans lost their lives in various clashes between communities over grazing,access to water and cattle raiding. In July the same year, Boran cattle raiders attackedGabbra village in Turbi, in which over 50 people were killed (many of them children)at Turbi primary school.712005 Constitutional Referendum85. Thestateofinsecurityworsenedasthecountrypreparedforthe2005constitutionalreferendum. The constitutional referendum seems to have shattered the dreamsof key players in the NARC coalition. At the Bomas constitutional conferencethere were two contentious issues on which the coalition partners sharplydisagreed on - the powers of the president and devolution. In return to RailaOdinga’s endorsement of Kibaki as the NARC presidential candidate in 2002, hewas promised the position of the prime minister. The coalition collapsed whenthe Kibaki side of the coalition reneged on the coalition’s two key pillars.86. And when the resultant constitution (with clauses promising devolution anddilution of presidential powers removed) was put on the referendum in November2005, it was overwhelmingly defeated. The main architect of the crusade against thewatered down constitution Raila Odinga and his supporters joined with some KANUleaders and other dissatisfied members of the government and campaigned for a‘No’vote. The‘No’campaign was triumphant, claiming 57 percent of the vote.70 See Chapter One of Volume 1 of this Report.71 For details see Daniel Branch Kenya: Between Hope and Despair, 1963-2011 (2011).

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