PUBLISHED BY MEDIA DEVELOPMENT ASSOCIATION FEBRUARY 2008 NEWSLETTER Your Free Copy Issue NO. 02.08

Truth, Justice and Reconciliation Commission Is it a timely and important intervention for ? SHOULD THE WATCHDOG BITE? Kenya Media on the Line WHICH WAY THE 10TH PARLIAMENT POLITICAL SETTLEMENT MUST GO BEYOND POWER SHARING

Konrad Kindly supported by: Adenauer Stiftung ABOUT THE MEDIA DEVELOPMENT ASSOCIATION

he Media Development discuss development journalists; Association (MDA) is an issues and their link to Talumnus of graduates of journalism; · Reinforcing the values of University of 's School peace, democracy and of Journalism. It was formed in · Carrying out research freedom in society 1994 to provide journalists with on issues relevant to through the press; a forum for exchanging ideas on journalism; how best to safeguard the · Upholding the ideals of a integrity of their profession and · Organizing tours and free press. excursions in and to facilitate the training of Activities of MDA include: media practitioners who play an outside Kenya to widen journalists' knowledge · Advocacy and lobbying; increasingly crucial role in of their operating shaping the destiny of the environment; · Promoting journalism country. exchange programmes; · Publishing magazines for The MDA is dedicated to journalists, and any other · Hosting dinner talks; helping communicators come publications that are to terms with the issues that r e l e v a n t t o t h e · Lobbying for support of affect their profession and to promotion of quality journalism training respond to them as a group. The journalism; institutions; members believe in their ability to positively influence the · Encouraging and assist · Initiating the setting up conduct and thinking of their m e m b e r s t o j o i n of a Media Centre which colleagues. journalists' associations will host research and l o c a l l y a n d recreation facilities; The MDA aims at: internationally; · B r i n g i n g t o g e t h e r · Wo r k i n g f o r t h e journalists to entrench · C re a t i n g a fo r u m development of a news friendship and increase through which visiting network; professional cohesion; journalists from other countries can interact · Providing incentives in · Providing a forum with their Kenyan terms of awards to t h r o u g h w h i c h counterparts; outstanding journalists journalists can discuss and journalism students; the problems they face · Helping to promote in their world and find journalism in rural areas · I nv i t i n g re n ow n e d ways of solving them; particularly through the journalists and other training of rural-based speakers to Kenya; · Organising exhibitions correspondents; in journalism-related · Networking and liking a r e a s s u c h a s · Advancing the training of u p w i t h o t h e r photography; journalists in specialised j o u r n a l i s t s ' areas of communication; organisations locally and · Organising seminars, abroad. - workshops, lectures and · Create a resource other activities to centre for use by

KatibaNews FEB 2008 This newsletter is meant to: 1 Give critical analysis of democracy and governance issues in Kenya. THIS MONTH FEB 2008

2 Inform and educate readers on the ongoing Constitution Review Process.

KatibaNews is published by Media Development Association (MDA). This publication has been made possible with the kind support of the Konrad Adenauer Stiftung (KAS) in Kenya.

MDA is not-for-profit organisation registered under the Societies Act.

Managing Editor Stephen Ndegwa

Associate Editors Susan Kasera Patrick Mwangi Henry Owuor

Office Assistant Contents Monica Muthoni 3 Truth, Justice and Reconciliation Commission Photography MDA Library

Art Direction & Design Khafre Graphics 6 Should the watchdog bite?

KatibaNews is published monthly and is distributed free to all media houses, civil society organisations, and the public. All are welcomed to send their observations 9 The 10th Parliament? on the constitutional review process to be the Editorial Board. Views expressed in this newsletter do not necessarily reflect those of MDA, KAS or partners. Reprinting of materials permitted provided the source is acknowledged. 12 Political settlement

All Correspondence to: The Editor Katiba News P.O. Box 64254-00620 Tel. 020 2098548 Cell: 0724 376883 Nairobi, Kenya Email: [email protected]

1 KatibaNews FEB 2008 EDITORIAL OF PLAYING RUSSIAN ROULETTE AND BITING THE BULLET

ince the country gained independence from the neighbours. Like the proverbial thorn birds, we have British colonialists 44 years ago, Kenyans have been foolishly tempting fate. Sbeen living a very big lie! But hold on before you accuse me of making a blatant statement. The time for laying down and addressing the socio- economic and political baggage that we have carried as Going by what has happened in this country over the a nation in the last 40 plus years has come. It is going to last two months, you do not need to be a student of be a painful experience for all Kenyans as we search history to know that Kenya will now have to undergo a our souls and try to get back on our feet again. Yes, it is complete paradigm shift as far as democracy and going to be business unusual! governance is concerned. Although those of us who were born after independence are given accounts of In our second edition this year we start with the times in our history when the country nearly went increasing calls for the establishment of a Truth, Justice over the precipice, I believe past events do not come and Reconciliation Commission. That this is an close to what happened after the announcement of undertaking whose time has come needs not be the presidential results towards the tail end of 2007. overemphasised. As they say, those who do not learn from history are bound to repeat it. For years, Kenyans have been in denial about their true identity. Each and every Kenyan has been going on like Secondly, we take a look at the role, if any, the media he or she owns the place, oblivious to the fact that we played in sparking off and escalating the post election all carry ethnic tags in our names, language, culture, violence both just before and after the elections. My education and economic class. Innocently or obviously unpopular view is that the media, both print otherwise, we have for long branded each other with and electronic, have a case to answer to the people of jabs such as thieves, vagabonds, spendthrifts and Kenya. morally decadent depending on which tribe one is In our third analysis we give ask ourselves whether it is describing. going to be business as usual in the yet to be opened th Gradually, we have been sowing the seeds of conflict 10 Parliament or whether we expect a new direction with each other either as groups or individuals. But given our current circumstances. what we did not realise all this time is that we have Lastly, we go beyond the buzz of power sharing as a been dicing with death. And the one shot, the political solution between the PNU/ODM-K deadly ethnic shot, finally got fired on December Government and opposition ODM. Is it all about who 30th last year. will yield the big stick or are our politicians thinking of As we now bite the bullet, we have become a the 33 million inhabitants who walk on this our land nation of bleeding hearts and souls. We have been and nation? Your guess is as good as mine… playing a game whose grave consequences are so Stephen Ndegwa evident in the sorry state of most of our Managing Editor -

2 KatibaNews FEB 2008 Truth, Justice and Reconciliation Commission Is it a timely and important intervention for Kenya? By Antointette Mulama econciliation and Justice are Indeed in 2003, the Government set almost twin notions. It is argued up a Task Force to examine the Rthat the search for peaceful q u e s t i o n a n d m a k e coexistence, trust, empathy and recommendations. The Task Force democratic power sharing demands recommended formation of such a that “justice be done”. Many Commission. However, the Task proponents in the West argue that Force's recommendation to establish “there is no peace and no reconciliation t h e C o m m i s s i o n w a s n o t without punitive justice”. Sceptics, implemented. In the aftermath of the however, have raised four objections to post December 2007 general the use of trials and criminal election violence in which there were prosecutions in dealing with a violent gross human rights violations of the past claiming: rights to life and property, the need to (a) It is affected by the current political establish the Commission has come climate. to the fore. (b) It ignores and sidelines victims. (c) Material obstacles may hinder the T h e e s t a b l i s h m e n t o f t h e delivery of justice. Commission is just one component (d) Trials have the potential to thwart of transitional justice. Transitional the reconciliation process. justice embodies an attempt to build sustainable peace after conflict, mass There have been debates in the past on violence or systemic human rights the need to establish a Truth, Justice and abuse. It involves prosecuting Hon. Martha Karua Reconciliation Commission in Kenya. perpetrators, revealing the truth Minister for Justice & Constitutional Affairs about past crimes, providing victims with reparations, reforming abusive i n s t i t u t i o n s a n d p r o m o t i n g non state actors in a defined part of The establishment of the reconciliation. Other measures that are recent history. The commission is a necessary to ensure transitional justice mechanism that complements, but not Commission is just one are institutional reforms, prosecution of substitutes, courts of law, and primarily perpetrators in domestic and focuses on the most serious violations c o m p o n e n t o f international tribunals, promoting such as extra judicial and summary reconciliation in divided communities, executions and torture. Establishing an transitional justice. construction of memorials to preserve official truth about a brutal past can help the memory of the past and taking into inoculate future generations against Transitional justice account gendered patterns of abuse to revisionism and empower citizens to enhance justice for female victims. recognise and resist a return to embodies an attempt to Transitional justice is an important and abusive practices. necessary intervention to create a rule of law State. From 1974 to 2007, at least 32 build sustainable peace t r u t h c o m m i s s i o n s w e r e after conflict, mass A truth commission is defined as an established in 28 countries. More official body that is mandated to than half of these commissions produce a formal record, within a have been established in the past 10 violence or systemic limited time frame, of past violations of years. Some of the African humanitarian or human rights law countries that have established human rights abuse. committed by a previous regime and truth commissions include Chad, the Democratic Republic of Congo,

continued next page 3 KatibaNews FEB 2008 the legislative process, such a Truth Commission can assist in combating a culture of Commission may function at the whims of and defer to the appointing authority impunity and unaccountability by exposing human and may be deemed to be dependent on the Executive, whose actions will be rights abuse to public scrutiny and attributing u n d e r i n v e s t i g a t i o n b y t h e Commission. Establishment as a responsibility for violations. Ideally, the findings of commission of Inquiry requires broad consultations to ensure that the the Commission form the basis for prosecutions. composition and mandate of the from page 3 Commission is acceptable to all groups.

Nigeria, South Africa, Ghana, Liberia, framework for reparations for We recommend that the Commission Morocco, Sierra Leone and Uganda. victims of the violations and should be established through an Act of their families. Parliament. Establishment through The establishment of the commission 4. Truth Commission can assist legislation offers a wide and largely should be preceded by broad in combating a culture of acceptable consultative process and consultations to ensure consensus in impunity and unaccountability insulates the Commission from the meaning of justice and by exposing human rights E xe c u t i ve m a n i p u l a t i o n a n d reconciliation is reached. The abuse to public scrutiny and institutionalises the independence of commission must be considered attributing responsibility for the Commission. Such an Act of neutral by all stakeholders, it must violations. Ideally, the findings Parliament will define all key aspects conduct its activities impartially and it of the Commission form the and the functioning of the Commission. should focus on past violations and basis for prosecutions. The T h e a p p o i n t m e n t o f t h e abuses. commission assists States to Commissioners can also be done fulfil their State party through a vetting process which The purpose of the Truth o b l i g a t i o n s u n d e r involves Parliament. Commission I n t e r n a t i o n a l L aw b y The Commission can play an important investigating serious violations The mandate of the Commission will role in a divided society emerging from of human rights, by provision be set out in the enabling instrument. It a period of gross human rights of a domestic remedy, by must be acknowledged that the violations. Consequently: bringing perpetrators to Commission cannot investigate all past 1. The commission can assist in justice and taking measures to human rights violations. An effective building confidence between prevent future violations. mandate must be flexible to the conflicting groups which 5. The Commission can make may undermine negotiations r e c o m m e n d a t i o n s f o r continued page 5 for a peaceful political institutional reforms that will settlement. prevent future recurrence of The political crisis in Kenya 2. The commission can assist in gross violations of human ending cyclical violence since rights. This would include has exposed the fragile state violent acts by one group repeal of discriminatory laws, usually begets retribution and reorganisation of institutions of State institutions and deep retaliation. The cycle of of the state such as the police, rooted grievances of a v i o l e n c e i s s p a n b y prosecution department and demagogues that aggravate t h e J u d i c i a r y a n d historical nature. It is, inter-group divisions by establishment of effective inflaming latent tensions and oversight mechanisms such as therefore, necessary that distorting facts. The media can office of Ombudsman. violations that have occurred a l s o c o n t r i b u t e b y providing biased news. Mandate of the proposed since independence be 3. The process of truth telling Commission a n d o f f i c i a l Under the Kenyan law, the Commission investigated with a view to acknowledgement of facts can be created by the President recreating the Kenyan State has therapeutic value for through a Presidential Order section 3 victims if the process is of the Commissions of Inquiries Act or a n d i n f o r m i n g t h e conducted in an inclusive by Parliament through an Act of constitutional review and participatory manner. Parliament. Whereas creation by a The Commission can Presidential Order can be done quickly process. provide solutions and and without undergoing the rigours of

4 KatibaNews FEB 2008 from page 4 known and so that the matters can be unity. accommodate unexpected challenges, closed. realistic in scope, match the resources Legal and other remedies available, and clear in the nexus The commission should have a available for victims between the Commission and courts prescribed time frame of one to two The remedies available at the of law. The mandate must define: years to complete its task. This will commission will be set out in the 1. T h e s c o p e o f provide quick results as confidence enabling instrument. The Commission i n v e s t i g a t i o n s : T h e building measures and capitalise on complements the other available commission must identify who political goodwill in the transitional structure of redress like the courts of are the victims and who are environment. Such a time frame may law. It does not replace their mandate the perpetrators. The allow for investigation of only select and some of the remedies available in commission should prioritise cases, thus decreasing the potential the courts can be pursued even when cases on the basis of legal reconciliation impact of the the commission is conducting its weight, number of victims, the commission's work. It is important to hearings. Some of the remedies meaning attributed to them by ensure the mandate of the commission available are: society in general and their is properly set out through wide a) Amnesty. The decision to impact on the conflict dynamic consultations to ensure the work of o f f e r a m n e s t y b y a and future reconciliation. the commission has the necessary commission is essentially a 2. The types of powers which impact and credibility. The commission political one. The amnesty is will be vested in the must adopt a victim centred approach granted in situations where commission to facilitate in its rules of procedure. due to the sheer numbers of its work: Such powers the potential indictments, the include power to conduct The commission should conduct judicial system is incapable of searches, call for production of hearings in a central location as well as effectively handling the cases relevant information and visit the areas where the violations or where the perpetrators summon witnesses. The have occurred. This will ensure wider wield significant power. recommendations of the participation and facilitate proper Blanket amnesty fosters a Commission should be legally understanding by the commissioners of culture of impunity and binding to prevent recurrence the local context in the violations. The undermines efforts to prevent of violations. commission must establish fair future rights violations. It 3. The time frames within procedures by ensuring the right to fair should be considered on a which it must achieve trial and protection from self case-to-case basis. Amnesty specified results: Ideally, the incrimination. should not be available for the commission should be sponsors of the violations. established soon after a The mandate of the commission will b) Lustration. This entails regime transition or signing of include investigations into purported d i s q u a l i f i c a t i o n o f a peace accord. Due to the crimes such as ethnic cleansing, perpetrators of past rights need to maintain public massacres and possible genocide, post violations from public service. confidence, the commission election political violence, economic c) Criminal prosecutions. should be established rapidly. crimes, torture, detention, exile, rape, This can proceed alongside or disappearances, political instigated only after the operations of The political crisis in Kenya has clashes, political assassinations and the commission. This will exposed the fragile state of State violations of economic social and ensure formal justice for institutions and deep rooted cultural rights. perpetrators identified by the grievances of a historical nature. It is, commission. Prosecution will therefore, necessary that violations In conducting its work, the commission provide the opportunity for that have occurred since independence should have the right to access uncovering complex and be investigated with a view to Government records and reports, highly detailed information recreating the Kenyan State and track down stolen public assets and and analysis into the informing the constitutional review recommend their return, negotiate commission of past human process. Some violations which with perpetrators of economic crimes rights abuses, including occurred soon after independence, for for the return of stolen assets in examination into chain of example, the murders of Hon Gama exchange for recommendations of command and level of Pinto, Hon Tom Mboya and Hon J. M. amnesty, should have independence knowledge. Prosecutions Kariuki were not satisfactorily and immunity for the commissioners can serve to deter future i nve s t i g a t e d a n d c o n c l u d e d . and wide powers of investigation. The crimes, be a source of Consequently, it is important that the commission should have the power to comfort for the victims, Commission collects evidence on make recommendations for amnesty these matters so that the truth is and to promote reconciliation and continued page 10

5 KatibaNews FEB 2008 SHOULD THE WATCHDOG BITE? Kenya Media on the Line

By Eric Ombok

enyan media has expanded and 2007 general election g ro w n i n s o p h i s t i c a t i o n campaigns by the two main Ktremendously since the first political parties - Mwai private radio station, 98.4 Capital FM, Kibaki's Party of National went on air in September 1996. Unity (PNU) and Raila O d i n g a ' s O r a n g e Radio is the most influential form of Democratic Movement media in the country due to the relative (ODM). affordability of a radio set and almost every household in the country owns Election 2007 one. No other elections in Kenya have received as much media The public broadcaster Kenya coverage as the 2007 Broadcasting Corporation (KBC) has General Election. Live eight radio stations, in addition to the broadcasting was the more than 20 privately owned FM radio hallmark of coverage before stations in the country. The main and during the elections. television stations include KBC Channe1 Then on December 30, 2007 and Channel 2, moments after Mwai Kibaki (KTN), Nation TV (NTV), Citizen TV and was announced as the K24, which went on air in November winner of the disputed 2007. December 27, 2007 poll, the government banned live The mainstream daily newspapers include broadcasting. The , , The People Daily, The , Business Daily, Daily Metro and Nairobi Star. The ban was lifted on Hon. Samuel Poghisio February 4, 2008 but this has Minister for Information & Communication One cannot ignore the vibrant new media not stopped the raging in Kenya today. The first Internet Service debate on the role the media Provider (ISP) was the not-for-profit played in fueling post election violence Bitange Ndemo, says the task force will be African Regional Centre for Computing that resulted in more than 1,000 people set up to inquire into the role of all media, (ARCC) owned by renowned Computer dead, more than 500,000 internally including foreign correspondents during Scientist Dr Shem Ochuodho. displaced persons and more than 1,000 the post election period. Kenyan refugees in neighbouring Uganda. The taskforce's mandate is: ARCC begun offering its services in ·To inquire into the role of, and October 1995 followed in April 1996 make recommendations about, by Africa Online and Form-Net in The Government turned the heat on the the conduct, performance and May 1996. Today, there are 51 media when it announced plans to professionalism (or lack thereof) licensed ISPs and close to 10 million establish a task force to look into the of the media sector prior, during active mobile phone users. conduct of the media before, during and a f t e r t h e e l e c t i o n , a n d m a ke election 2007. ·To inquire into the role of, and Popular forms of new media include recommendations on how to achieve a make recommendations about, the Internet, e-mail, blogs and sms, all more non-partisan media. v e r n a c u l a r of which were extensively used for FM radio broadcasting during propaganda campaigns mostly Permanent Secretary in the Ministry of before and during the December Information and Communication, Dr. continued page 7 6 KatibaNews FEB 2008 from page 6 recommendations about, the t r a i n i n g o f One school of thought the same period and their journalists as regards the contribution to, and/or coverage of national democratic complicity in the preparations events such as general elections contends that the media for violence, the conduct of and referenda. violence and its aftermath. ·To inquire into, and make is a mirror that reflects ·To inquire into, and make recommendations about the recommendations about, the impact of the phenomena of the situation in a society impact and dynamics of media opinion polling and political ownership vis a vis election advertising on media content and if the reflection is an 2007. and conduct. ·To inquire into, and make ·To inquire into, and make ugly one, it can do little recommendations about, the recommendations about, the employment criteria and the role of foreign correspondents w o r k i n g c o n d i t i o n s o f and news agencies during about it. That the media journalists vis a vis their election 2007. commitment to professional ·To inquire into and make was just reporting facts standards and conduct as recommendations about the contained in the Code of accreditation of journalists, both and that the results of the Conduct of Journalism in Kenya. local and international. ·To inquire into, and make disputed presidential recommendations about, the One school of thought contends that the education and training of media is a mirror that reflects the journalists and the training situation in a society and if the reflection elections were merely the institutions that cer tify is an ugly one, it can do little about it. That journalists as professionals. the media was just reporting facts and trigger that broke the ·To inquire into, and make that the results of the disputed presidential elections were merely the camel's back resulting in trigger that broke the camel's back Indeed, the two largest resulting in post election violence. That post election violence. the real cause of the violence is historical underlying issues revolving around media houses in the equitable access to national resources, also get back to normal,” Waruru says in especially land ownership. the online discussion.

country, Nation Media ”I do agree with Kanja (Waruru, Indeed, the two largest media houses in Chairman of the Media Owners the country, and the Group and the Standard Association) that we need to audit all the Standard Group, issued guidelines on players in order to establish where the political advertising with the former rain started beating us. More importantly, ceasing acceptance of political Group, issued guidelines we need to ask ourselves as groups and as advertisements to give the mediation individuals what we can do so that our process led by former UN Secretary on political advertising country can never again find itself in such General, Kofi Annan, a chance. a bind,” KTN news anchor, Farida Karoney, wrote in an online discussion on Inspite of a high degree of self censorship with the former ceasing the matter. exercised by the mainstream media, I contend that a section of the media is acceptance of political Karoney, however, adds that the guilty as charged. Blanket condemnation mainstream media did a lot in the way of of the media is useful in moving the self regulation. “Many of the things that country forward. advertisements to give were available to us yet were never aired nor printed are indeed shocking,” she Therefore, a task force set up by the says. Government is not the way to go the mediation process about looking into the conduct of ”During the elections, the media was the media in election 2007 whereas led by former UN exercising the self regulation rule and a we have the legally constituted lot of the stories that were filed during Media Council of Kenya (MCK), this period were censored because they which is mandated to handle Secretary General, Kofi were hate speeches and issues not fit for complaints against the Fourth printing, but we thought it would all die Estate. Annan, a chance. out after the elections and things would continued page 8

7 KatibaNews FEB 2008 from page 7 media were used in to spread Kiss FM MCK has resolved a complaint lodged by hatred, to dehumanise people, and even to Classic FM the Embassy of Portugal against The People guide the “genocidaires” toward their Easy FM Daily and a complaint lodged by the Kenya victims. Simba FM Medical Association against KTN. Annan, who is now the Chief Mediator in Citizen FM According to the MCK code of conduct the crisis of the disputed presidential KBC General Service for covering elections, the way the media election between PNU and ODM, told covers an election process could give the symposium that, “It is encouraging to Vernacular radio stations good indicators on their value to society know that the news media are also Mulembe FM as agenda-setters. undertaking a process of self examination Kass aFM as we collectively remember this Musyi FM In fact, local media did this effectively not tragedy”. Coro FM only during the campaigns but also during Ramogi FM the actual elections when the media were Kameme ahead of the ECK in tallying of votes. “Three journalists have even been found guilty of genocide, incitement to genocide, Television stations “Coverage of elections provides one of conspiracy and crimes against humanity KTN the toughest ethical tests for media by the International Criminal Tribunal for CITIZEN TV practitioners. At times the Kenyan media Rwanda. We must find a way to respond to NTV tend to concentrate on parochial, such abuses of power without violating KBC TV unengaging and irrelevant issues that do the principles of freedom, which are an not benefit voters in their day-to-day life. i n d i s p e n s a b l e c o r n e r s t o n e o f The first report released in September They engage on personalities and the democracy,” Annan says. 2007 said: rhetoric spewed by them instead of ·The print media provided more matters that would help voters judge coverage to PNU and its affiliate whether such people deserve to be In the case of Kenya, Information and par ties than the other elected or not,” notes MCK. Communication Permanent Secretary, Dr competing parties. ODM-K was Bitange Ndemo, says in an online given significantly less coverage So what are the specific charges against discussion: ”When Rwanda had a political by all the monitored print media. the media? To begin with, there are crisis, some FM stations worsened the ·Coverage in vernacular stations parallels between Kenya and Rwanda in as situation. In our case, no one denies the tended to favour the political far as the media is concerned in fuelling fact that we were in a crisis towards the parties that were deemed to ethnic animosity. On April 6, 1994 a plane end of December (2007). It was have more following among the crash that claimed the life of Rwandan desperate and we took desperate communities. President, Juvénal Habyarimana, and measures. No one can say what would ·PNU received most of its B u r u n d i a n P re s i d e n t , C y p r i e n have happened if we let media inflame coverage during the launch of Ntaryamira, became the straw that broke passions of our people”. the party by the President. Most the camel's back in Rwanda, plunging the of the stations provided live country into a genocide that left over a The UNDP Kenya office sponsored media coverage of the event during million Rwandese dead. monitoring for elections under the which ODM and its candidate auspices of the 2007 election assistance was mentioned more times than “Local media fuelled the killings, while the programme as part of an initiative to PNU and its flag-bearer Mwai international media either ignored or strengthen the overall capacity of the Kibaki. The coverage was seriously misconstrued what was Electoral Commission of Kenya (ECK), negative to ODM and positive to happening,” says Allan Thompson, who civil society, media and other agencies PNU. edited the book, The Media and The critical to the achievement of free and fair ·The Orange Democratic Party Rwanda Genocide. elections, and improvement of citizens' (ODM) received significant participation in the electoral process and coverage by the various media Thompson is a Professor of Journalism at understanding of their rights and duties. houses. Overall, the coverage Carleton University in Ottawa, Canada, was accurate and fair. The party and a columnist with the Toronto led in the number of mentions as Star, Canada's largest circulation The monitored media were: other parties tended to refer to daily newspaper. Newspapers it in a negative light during their The Nation newspapers campaigns. And on March 13, 2007 Kofi Annan, The Standard ·The Orange Democratic the then Secretary General of the Kenya Times Movement of Kenya (ODM-K) United Nations, told a symposium People received the least mentions of on the media and the Rwanda The East African the leading political parties. The genocide at the Carleton Nairobi Star coverage was generally fair and U n i v e r s i t y S c h o o l o f accurate. J o u r n a l i s m a n d Radio stations ·There was a general bias in Communication that that the Capital FM continued page 16 8 KatibaNews FEB 2008 Which way the 10th Parliament?

By Paul Mwangi

f tradition were being followed, the However, this would only extend opening of the first session of the 10th to questions and motions. IParliament is now overdue. The first session of the last Parliament was In respect of Bills, the mandate officially opened by President Mwai lies with the Executive. Save for Kibaki on 18th February 2003. However, Bills sponsored by individual we did begin this year in a rather dramatic members of parliament as Private fashion. We can expect, therefore, that Members Bills, all other t h e re w i l l b e d e l ay s i n t h e legislation is proposed by the commencement of the Parliamentary Government. The Government agenda. will thus make the decision whether to re-introduce Bills In common logic, one would expect that that were pending by the time the Parliament works successively and that ninth Parliament was dissolved. the new Parliament will automatically Since the Government of take over the unfulfilled agenda of the last President Kibaki was given a one. In some ways this does happen. In second term, one would expect legal principle, however, one Parliament is that the legislative agenda of totally distinct from the other and each Government will remain the has it own independent agenda. same and that the pending legislation will be re-introduced. Legally, when Parliament is dissolved, all unfinished business dissolves with it. All But the old legislative agenda is pending questions, motions and Bills that unlikely to be the starting point th Kenneth Marende had not been addressed as at October 22, for the 10 Parliament. The Speaker of the National Assembly 2007 when the ninth Parliament was political upheaval through which dissolved are no longer alive. They this country has come through following Party of Kenya (ODM –K) on the one dissolved with the House. the December 2007 elections will hand, and the Orange Democratic determine the short term priorities of Movement (ODM) on the other through Other arms of government do operate the new house. The 10th Parliament is the Kofi Annan led negotiations. Indeed, differently. If a new president is elected, all expected to legislate a new legal the new Speaker of Parliament, Hon government projects continue framework through which peace and Kenneth Marende, has stated several unaffected by the change. While a new reconciliation will be worked out. times that Parliament will play its role in president may implement new and providing the legal framework through different policies, programmes Already, there are indications that which agreements at the negotiations will implemented by the last regime remain extensive amendments will have to be be realised. valid unless expressly altered. carried out to our current Constitution and other laws within the next one year. But one can expect that the mere signing In the Judiciary, however, nothing is Whether for purposes of legislating new of the agreement and the promises of the affected by a change of personnel. All governance structures or constituting a speaker will not be enough to litigation continues from where it was Truth, Justice and Reconciliation determine the conduct of MPs left. In fact, one Judge can validly write a Commission, laws will have to be enacted once the legislative proposals are judgment on a case heard by a totally to establish the political infrastructure presented to the House. Each MP different judge. through which the problems we are in holds an independent vote on the can be addressed. floor of the House and there are no Therefore, it is now up to the new sanctions for an MP who refuses to Parliament to decide whether to give the The nature of these amendments will vote in accordance with his party's business pending in the ninth Parliament depend largely on the agreements that wishes. Regardless of what the a new lease of life. If it does, then the are reached by the government (made up Government or ODM agree on, business will have to be introduced anew, of the Party of National Unity (PNU) and Parliament will remain an though it may be identical in substance. the Orange Democratic Movement continued page 10 9 KatibaNews FEB 2008 from page 9 by upholding points of order raised by independent institution to which these the Government side while dismissing So, despite his initial impartiality, Hon agreements must be sold. those raised by the opposition ODM. Yet, Marende, may find himself under It is not inconceivable that members of he was to later issue a very scathing pressure to adopt the view of each PNU, ODM-K or ODM who feel that the indictment of the Government regarding competing faction and of individual party leadership has compromised the its apparent failure to provide security to members. And whatever side he appears political position of their party will refuse t h e M P s a f t e r t w o O D M to support, the others will condemn him. to vote for any legislation brought to parliamentarians were shot dead in the He will have to find a way of getting the implement such an agreement. Each party span of a week. MPs to see things from one perspective. will undoubtedly hold parliamentary To achieve this, he may require the help of group meetings to campaign for the But delivering the parliamentary vote for the leaders of each political side and of agreement but the final decision on the peace talks may turn out to be a opinion leaders in the House. whether the agreement will be simple test in a very complex political implemented will lie in the hands of situation. The swearing-in session And that will set the tone for all further individual MPs. showed how much the House was business of the new Parliament. If Hon divided and how deeply mistrust ran on Marende manages to unite the House Consequently, it behoves on the Speaker both sides. The colour of justice is under his command and win the respect to talk to his members and unite them in increasingly determined by the sight of and support of all members, we can voting for the agreement. To do this, he the seer. What is truth today largely expect that the 10th Parliament will not go will have to convince them that he is an depends on who is talking. By the time down the road of infamy as its honest broker pursuing a national the House meets to vote on the predecessor. If he fails, the 10th Parliament agenda. So far, he has shown himself proposed political solutions, each MP will deteriorate into the worst capable of impartiality and fairness and may have an independent view of what is Parliament yet in Kenya's history. above petty party politics. During the true and just, and this may not concur swearing in of members of the 10th with the views of Kenyans or of the party The writer is an a-uthor and Parliament in January, he surprised many leaders. advocate of the High Court of

from page 5 human rights abused in the complex process. It is reflect a new set of social past was not a typical or i m p o r t a n t t o d e f i n e norms and begin a process of isolated phenomenon, the victimhood in the context of reforming and rebuilding trust commission can strengthen reparation in order to clearly in Government institutions. the wish of the Government define the class of victims d) Civil litigation. Victims of and the public to realise and eligible to compensation. The human rights violations can file implement reforms. The reparation policy should not cases seeking compensation targeted institutions in the seek to create divisions among a g a i n s t t h e S t a t e o r Kenyan context include the the different classes of victims. perpetrators of violations Kenya Police, the Office of the g) Compensation. This can be once their role is unravelled Attorney General, the provided by the commission and clarified. Such cases will be Electoral Commission of or the courts as part of the filed in the national courts. If Kenya and the Judiciary. The remedy. The South African not addressed satisfactorily, political crisis has recreated Truth and Reconciliation such cases may be referred to the constitutional moment for Commission included a international human rights Kenya to realise a new R e p a r a t i o n s a n d treaty monitoring bodies for c o n s t i t u t i o n a l o r d e r. Rehabilitation Committee redress. Therefore, it is important that which sought to restore e) Legal and institutional Ke n y a n s d e m a n d a n d victims' dignity and formulate r e f o r m s . T h e s e a r e Parliament provides a p o l i c y p r o p o s a l s a n d important measures to guard framework for realisation of a recommendations for healing against future rights new Constitution within the of survivors, families and violations. Such laws shortest time possible. communities, some of which should address relevant f) Reparation. This can take included compensation c o n f l i c t - g e n e r a t i n g many forms such as material packages paid to victims. grievances and facilitate assistance, psychological h) Witness protection. The re c o n c i l i a t i o n . T h e assistance and symbolic commission must put in place Commission can facilitate measures such as monuments, effective witness protection and add impetus to the memorials and national days. programmes to ensure the transformation of state The formulation of a security of persons who i n s t i t u t i o n s . B y reparation policy is a politically testify before the Commission demonstrating that the delicate and technically is safeguarded. Witness continued page 11 10 KatibaNews FEB 2008 from page 10 perspectives of the persons Committee r e s p o n s i b l e f o r t h e The role of the committee was to relocation programmes as commission of the violations, provide victim support to ensure that contemplated in the Witness by conducting investigations the Truth Commission process Protection Act could be an and holding hearings; restores victims' dignity; and to option in some cases. The b) Facilitating the granting of formulate policy proposals and Commission should facilitate amnesty to persons who make recommendations on rehabilitation the attendance of witnesses full disclosure of all the and healing of survivors, their families and design special measures relevant facts relating to acts and communities at large. The for vulnerable groups such as associated with a political envisaged overall function of all women and children. objective and comply with the recommendations was to ensure non requirements of the Act; repetition, healing and healthy co- The South African experience c) Establishing and making existence. A President's Fund, funded Serious discussions about the idea of a known at a public forum the b y P a r l i a m e n t a n d p r i v a t e commission began after Nelson fate or whereabouts of victims contributions, was established to pay Mandela was elected President in 1994. and by restoring the human urgent interim reparation to victims in After considerable input from the civil and civil dignity of such victims terms of the regulations prescribed by society and hundreds of hours of b y g r a n t i n g t h e m a n the President. hearings, in 1995, the South African opportunity to relate their Parliament passed the Promotion of own accounts of the violations 3. Amnesty Committee National Unity and Reconciliation Act of which they are the victims, The primary function of the committee e s t a b l i s h i n g t h e Tr u t h a n d and by recommending was to consider that applications for Reconciliation Commission. Following reparation measures in amnesty were done in accordance with a public nomination and selection respect of them; and the provisions of the Act. The process, 17 commissioners were d) Compiling a report providing committee considered those who appointed. The cut off date for the as comprehensive an account committed abuses during the apartheid mandate of the Commission was as possible of the activities and era as long as the crimes were March 1, 1960. It had a staff of 350, a findings of the commission, politically motivated, proportionate budget of USD $ 18m each year for two a n d w h i c h c o n t a i n s and there was full disclosure of the and a half years. The establishment of r e c o m m e n d a t i o n s o f person seeking the amnesty. Applicants the commission was agreed as a measures to prevent the could apply for amnesty for any act, measure to break with the past future violations of human omission or offence associated with a violations of human rights in the rights. political objective committed from apartheid era and to ensure national March 1, 1960 to December 6, 1993. reconciliation and healing between The commissioners were appointed by The cut-off date was later extended to members of different races. It gave the the President in consultation with the May 11, 1994. The final date for the commission the power to grant Cabinet and were to be less than 11 but submission of applications was amnesty, search premises and seize not more than 17. The commission September 30, 1997. Being granted evidence, subpoena witnesses and run operated through three committees amnesty for an act means that the a sophisticated witness protection created under the Act. The perpetrator is free from prosecution programme. Committees were: for that particular act. This was the most controversial of all its powers. It The Act set out the objectives of the 1. Human Rights Violations was the subject of unsuccessful commission as to promote national Committee constitutional challenge and unity and reconciliation in the spirit of The committee investigated human subsequent court battles. It received understanding which transcends rights abuses that took place between over 7,112 applications for amnesty. conflicts and divisions of the past by: 1960 and 1994, based on statements 5,392 people were refused amnesty a) Establishing a complete filed before the commission. The while 849 were granted amnesty. picture of possible causes, committee established the identity of Approximately 10 per cent of the nature and extent of the gross victims, their fate or present victims gave evidence at public violations of human rights whereabouts and the nature and hearings. which were committed during extent of the harm they suffered, and the period from March 1, 1960 whether the violations were the result The commission heard from over to the cut-off date including of deliberate planning by the State or 2,000 victims, perpetrators and t h e a n t e c e d e n t s , other organisation, group of individual. witnesses of violation and circumstances, factors and It took statements from thousands of presented its report on October context of such violations, as survivors and witnesses. 28, 1998 after dealing with more well as the perspectives of the than 21,000 victims. Due to the victims and the motives and 2. Reparation and Rehabilitation continued page 14 11 KatibaNews FEB 2008 POLITICAL SETTLEMENT MUST GO BEYOND POWER SHARING

By Tom Kagwe

lot of positive and negative things been overtaken by events. There are four massive and unchecked powers that have happened in our beloved elements of the short term settlement reside in the presidency. Anation. While one month ago which could be realised between March Kenya seemed to be on the cusp of and June 2008. Finally, it is indeed commendable and precipice as if the country was sinking, encouraging that there was a national day today there are some rays of hope that First, there should be recognition, for prayer for peace on February 8, 2007. indicate Kenya is, indeed, rising from the acknowledgment and apologies by both Another good idea is the proposal to have ashes of the politically-instigated violence. President Kibaki and Orange Democratic a national day of rallies for peace in all the Many commentators have written about Movement's, Hon Raila Odinga, that the 210 constituencies, done on the same day the efforts by the National Dialogue and presidential elections were full of and hour by all elected MPs. Since cheap Reconciliation Committee led by former impropriety. Results from ODM and PNU propaganda and hate speech by the UN secretary general Kofi Annan. Many strongholds indicate that the results were political elite fuelled intolerance (not that commentaries have been written, tampered with. This is the case in Rift Valley the people are saints anyway), all MPs especially related to components of a and Nyanza provinces that voted strongly should go back to the same people to political settlement, which seems to be the for Raila, while the same is true for Central repent and talk about peace. way the mediation talks are going. and Eastern provinces that voted overwhelmingly for Kibaki, not to mention Medium-term settlement However, while some writers such as the electoral fraud that took place at the In the mid term, perhaps targeted Barrack Muluka in the Saturday Standard national tallying centre. The summary between July 2008 and June 2009, there on February 9, 2007 and Prof Makau statement may not be popular with many are also four critical issues that could be Mutua in the Sunday Nation on February Kenyans, but the truth is that it is proposed. First, within that period, Kenya 10 have really addressed the issues, many impossible to know who actually won the should establish a transitional justice other commentaries have generally presidential elections. mechanism, be it a Truth, Justice and addressed a 'power-sharing' formula Reconciliation Commission or whichever among the political class to the exclusion The second element is connected to the the mediation talks will agree on. It is of other agendas that constitute what first, which must involve an independent imperative that all Kenyans understand should and must be addressed beyond and international forensic audit of the the purview of that Commission as cutting deals among the political elite. same results. This should be able to illuminated by proposals such as those of indicate to Kenyans that indeed the last 30 Prof. Makau's led Taskforce on the For any political settlement to be hours, between December 29 and 30, establishment of such a Commission. The sustainable, there should be a three- 2007, were a “countdown to deception” integrity of the Commission, its pronged approach as to what should as Kenyans for Peace with Truth and independence, its modalities and constitute such a settlement, without Justice termed the situation. The third operationalisation, its terms of reference, which Kenya could once again sink after element of the short-term measure at the appointment of the Commissioners the 2012 General Election no matter who settling the political scores is the and the follow-up of its recommendations wins. Generally, the political settlement devolution of presidential powers to among other factors must be carefully must stagger the issues in the short term, other offices - not necessarily that of the considered within the legal framework medium term and also long term. The prime minister if the mediation talks ever that will establish it. following are staggered proposals, settle on such a position. The imperial some of which have been put on the presidency must be democratised by The Commission should not and must not table of the mediation talks, while returning power to where it belonged be established under the Commissions of some have not found their way there. before the notorious 40 or so Inquiry Act which gives the presidency amendments to the Constitution of unchecked powers and has rendered all Short-term settlement Kenya, which created an undemocratic past commissions of inquiry useless since At the beginning of the mediation and unaccountable presidency. In this all their reports are still gathering dust on talks, there were proponents of a re- regard, power must be 'shared' (returned) shelves or are somewhere in shreds. The run, re-tallying of votes or even to other offices such as Legislature, Akiwumi, Goldenberg, Kiruki and Ndung'u resignation of President Mwai Kibaki. Judiciary and other constitutional offices. Land commissions are just a few However, these proposals have since This will go a long way at reducing the continued page 13

12 KatibaNews FEB 2008 politically instigated violence - where much money Nairobi can send to the Impunity has taken root some crimes border on crimes against grassroots, but how much political and humanity - must be taken to courts of economic power and autonomy Nairobi law either individually or in groups. can cede to the grassroots for the latter in Kenya for far too long to collect, collate and utilise funds at the Impunity has taken root in Kenya for far local levels guided by the principle of to the extent that some too long to the extent that some subsidiarity. individuals, especially in the political class, individuals, especially in have presided over both political and The second, and perhaps key component, economic crimes but still 'roam free'. which should be agreed on at the the political class, have Some even have become 'consultants of mediation talks is the issue of a new and political thuggery' for some political better Constitution for Kenya. Most of parties and their candidates in every the above proposals or components presided over both election year. within the short, medium and long terms could be settled faster if and when a new political and economic The fourth component under this and better constitutional dispensation is category should be judicial reforms. finalised. However, it is deliberate that crimes but still 'roam While the 2003 'radical surgery' of the this proposal is coming towards the end Judiciary was hailed by many Kenyans, since if it comes at the beginning, a whole free'. there were some who remained set of 'contentious issues' will once again sceptical not just about the process of be in public domain. from page 12 'getting judges on the corruption list' but equally the haste and complicity with This could rob off this country an reminders of how Kenyan taxpayers' which the then Narc Government opportunity to address many other money has been used without achieving addressed the matter. Two things abound. issues that could be settled in a new and the stated objectives. No wonder the better constitutional dispensation. Any country is on fire today since all issues First, while some of the judges on the list new dispensation, however, must be brought before these commissions were have since resumed duty, some of the accompanied by a vigilant and inquisitive either swept under the carpet or put on rulings that are now judicial precedents citizenry since Africa is a graveyard of ice. in our laws are not worth the paper they very good constitutions, as former are written on. Second, the way in which Constitution of Kenya Review The second component in the mid term the Judiciary is structured, especially the Commission chairman, Prof Yash Pal revolves around electoral reforms, appointment of judges through the Ghai, once argued. A good Constitution, especially with regard to two issues. The politically correct Judicial Service therefore, is one which the people live first one concerns the Electoral Commission - compromises judicial out as written on paper. Commission of Kenya (ECK) and independence and professionalism. The secondly, the electoral system of first- Judiciary is still a system where justice, The third settlement under the long- past-the-post where the winner takes all. more often than not, is auctioned to the term framework could be to deal with On the ECK, fundamental changes must highest bidder and hence has become the issue of ethnicity and its attendant ills. be made to the electoral body. A more of a legal system than a justice To resolve this matter is not simple, but proposal would be both in hard and soft system. In this regard, it is essential to there are two proposals. First, there is options. The hard option is to fire all ensure that judicial reforms are need to investigate all manner of hate commissioners and some members of concluded before anyone can talk about speech campaigns carried out through staff and reconstitute the entire body seeking justice of any kind. SMSes, e-mails and leaflets among others afresh using the Inter-Par ties by all political players and Kenyans as a Parliamentary Group (IPPG) formula. Long-term settlement whole. All those to have been guilty must But the latter must be made tighter than The components of this long term be dealt with through prosecution under it was 10 years ago where our elite-based political settlement could be realised both the Penal Code and the Election parties nominated their kindred or between July 2009 and December 2010. Offences Act. Secondly, since some of the cronies to be named as commissioners. There are also four proposals here. First, issues are outside the purview of the two The soft option would be to isolate powers that do not belong to the capital Acts, there is need to legislate against commissioners and the election staff, and city Nairobi must be ceded to the hate speech - while still guarding our a way is found to prosecute all those who grassroots. This means political power freedom of speech. committed or presided over the and authority must be devolved from electoral fraud at the constituency and Nairobi. But the concept of devolution The fourth and final component of the national levels. must be understood by all in terms of the long-term issues has to do with structure, levels and format. Sending incorporating traditional methods of The above element leads to the third money through CDF is not devolution. avoiding or resolving conflict. This can be component of the mid term settlement, Majimbo as provided for in the Lancaster done through an interrogation of the which is to root out impunity from the Constitution was closer to devolution past, perhaps within the Truth, Justice and face of this country. All those involved in but the systems and structures of that Reconciliation Commission, or some the December 2007 electoral circus and Majimbo were done hurriedly and also continued page 16 all those allegedly involved in the not well secured. Devolution is not how

13 KatibaNews FEB 2008 from page 11 success of the reconciliatory approach There is need for massive civic education targeting in dealing with human rights violations, other countries have instituted similar the citizenry with a view to inculcating nationhood commissions. Various films and plays have been produced. However, it has and countering negative ethnicity. The media will be been criticised for failing to end racism and bring reconciliation between blacks an important partner in such a project. and white, political bias, while many of its findings have been questioned. Commission should be persons with evidence at the commission Its processes of selection and high moral integrity, respect for human c) The Government may fail to interpretation were critiqued. Most rights and acceptable to all parties and i m p l e m e n t t h e people felt that justice was a groups to be investigated. The public recommendations of the prerequisite for reconciliation and not needs to be aware of the Commission's commission. It is necessary an alternative to it. Further, the role and rationale. It is important that a that the enabling legislation commission had been weighted in public information campaign be carried empowers the commission or favour of the perpetrators of abuse. out to dispel misinformation and a n o t h e r s t a t u t o r y o r Many black South Africans were increase public involvement by building constitutional body to follow angered at an amnesty granted for confidence. In the Kenya context, it is up on implementation of the human right abuses by the apartheid important to appoint persons with recommendations. government. A high profile objection integrity through a bipartisan d) Truth Commission may not was the case of Steve Biko who was consultative process. A vetting lead to reconciliation. Such killed by Police and whose story procedure by Parliament is also reconciliation is dependent on featured in the movie “Cry Freedom”. necessary to ensure credibility and commitment by all parties to The family described the Commission acceptability of the appointees. end the threat to violence, as a “vehicle for political expediency” setting up of a reparations which had robbed them the right to While local commissioners may programme for victims of justice. understand the dynamics of political v i o l e n c e , a t t e n t i o n t o conflict better and possess language structural inequalities and It opposed amnesty on this and other skills, they may be susceptible to real or provision of material needs of grounds. In a case filed in the High perceived partiality. Due to the political the victimised communities. Court, it argued that the commission divisions generated by the disputed e) Balancing the power of was “unconstitutional”. In addition, 2007 General Election, it is important amnesty and the need to meet former President P W Botha defied a to consider inclusion of international the ends of justice. The major subpoena to appear before it calling it a experts to serve as commissioners or role perpetrators of the “circus”. His defiance resulted in a serve in a supervisory capacity to human rights violations should suspended sentence which was later ensure impartiality and fidelity of the not benefit from amnesty. overturned on appeal. commission's recommendations. Such f) The commission lacking the experts can offer the commission the powers to compel witnesses Composition of the proposed required technical support and to attend hearings of the Commission perception of independence and commission. The persons appointed to serve in the impartiality in its design, programmes and activities. Reconciliation and peaceful co- It is important that its existence in Kenya Challenges to establishment of Reconciliation is a concept with a establishment be part of the proposed Commission controversial pedigree in transitional Some of the challenges that can be justice. Some people interpret it as the political settlement anticipated in the move to setting up of forced forgiveness, impunity and the commission in the Kenyan context amnesia. Governments can invoke the of the political impasse include: concept to insulate themselves from a) Documents that are relevant responsibility for their role in the acts of c u r r e n t l y u n d e r to the work of the commission omission and commission that resulted may be destroyed. in the mass human rights violations. negotiation under the b) Kenya has not put in place a Reconciliation can serve the purpose of Freedom of Information healing suspicions, grievances and chairmanship of His legislation that would allow animosities in societies that have come public officers to be compelled from periods of mass atrocities and Excellency Kofi Annan. to give information and continued page 15 14 KatibaNews FEB 2008 from page 14 during elections, thereby reducing widespread conflicts. These divisions negative ethnicity generated at The persons appointed to endure after the conflict and have the elections. potential to return the society to serve in the Commission violence and recurrence of rights The Kenyan situation requires other abuse. measures that will supplement the should be persons with work of the commission and ensure Reconciliation will assist in breaking enduring peace. Such measures include high moral integrity, the cycle of impunity such as in Rwanda i m p l e m e n t a t i o n o f t h e and Yugoslavia which have emerged recommendations of the commission. respect for human rights from painful conflicts. It will also In the past, the reports generated by individualise guilt as opposed to similar Commissions in Kenya have and acceptable to all collective guilt which is a source of been disregarded. The root causes of impunity in future. A case in point is the the violations are not addressed parties and groups to be eradication of the dangerous comprehensively to the satisfaction of perception of a whole community, for all. Traditional forms of Justice may investigated. example, Serbs, Muslims, Hutu and complement the commission. They are Tutsi's. It will protect the return of designed to deal with a small number of investigate have been dealt with in the perpetrators and fulfil the obligation of cases, for example, livestock theft past. For example, the murder of Hon J the victims to see perpetrators between neighbours. An example of M Kariuki was investigated by a punished. In addition, it will avoid such tribunals is the gacaca tribunals in Parliamentary Select Committee unbridled private revenge and such self Rwanda whose aim was to speed up which submitted a report to help justice can trigger social and prosecution in the 1994 genocide, Parliament. The murder of Hon Robert political disturbance. thereby increasing the participation of Ouko was investigated by a Judicial all in the reconciliation efforts. In Kenya, Commission of Inquiry which was Victims must not take justice into their we can remodel this to deal with disbanded before it could complete own hands. By breaking the cycle of incidences of cattle rustling, theft and hearing all witnesses. The ethnic clashes impunity in Kenya, the electoral inter community issues threatening of 1991-1993 and 1997-1998 were the arithmetic of democracy can peace. subject of an inquiry by a Judicial exacerbate these cleavages by Commission of Inquiry chaired by Hon delivering political power only to the There is need for massive civic Justice Akilano Akiwumi. It is important majority ethnic communities, leaving education targeting the citizenry with a to consider the work of past other groups leaving vulnerable and view to inculcating nationhood and commissions and committees when marginalised. There is, therefore, need countering negative ethnicity. The the commission is eventually to reorient the constitutional order to media will be an important partner in established to avoid duplication. Their offer adequate protection and such a project. Thirdly, it is important to findings will be useful in informing the reassurances to vulnerable groups. complete the process of constitutional mandate of the commission. There Introduction of a rule requiring the reforms to strengthen institutions and s h o u l d a m o n i t o r i n g a n d winning presidential candidate to restructure state power. The resultant implementation organ that will oversee garner more than 50 per cent of the structure must reflect the will of the t h e i m p l e m e n t a t i o n o f t h e votes can assist to ensure there are people and the realities of the nation. commission's report. cross ethnic collations that emerge The new constitutional order must be based on broad consultations that will The establishment of the commission build on the work that has gone on in requires an infrastructure of trust, The persons appointed to the past in generating a new political will and commitment. It is Constitution. Such realignment will important that its establishment be serve in the Commission include provisions to solve the part of the political settlement of the question of equitable distribution of political impasse currently under should be persons with resources and the land tenure system. negotiation under the chairmanship Ultimately, the ethnic tensions and the of His Excellency Kofi Annan. To high moral integrity, resultant human rights violations will complement the work of the be solved through economic commission, a FOI Act is necessary respect for human rights empowerment of all citizens and to ensure that the commission is and acceptable to all creation of an environment where all able to call for production of citizens have equal opportunity. documents that are necessary to its parties and groups to be work. Conclusion investigated. Some of the matters that the The writer is a development commission will be required to worker-

15 KatibaNews FEB 2008 from page 8 of the coverage. employing not only legal and administrative measures, the MCK's code favour of President Mwai Kibaki of conduct must be thoroughly enforced. Radio coverage was skewed in favour of in both state-owned and private PNU with 44 per cent of the total media. The president received coverage compared to ODM which On training there is need to start from more air time and space received 34 per cent. ODM-K got 22 per having closer supervision of training allocation than his competitors cent of the total amount of coverage in institutions, particularly latter day ones across all the major channels. the radio stations monitored over the mushrooming in down town Nairobi The coverage was largely period. claiming to provide media training favourable and painted him in without even a single inhouse studio. We good light except for the Newspaper coverage need to have a minimum standard for occasional criticism by his admission and accreditation of first time competitors. Political Nation Standard People Nairobi Kenya journalists. ·Raila Odinga, the ODM flag- Groups % % % Star % Times % bearer received the second PNU 34 32 32 34 36 While the Kenya Union of Journalists most coverage in both ODM 31 33 34 35 32 (KUJ) is legally mandated to negotiate electronic and print media. Even ODM-K 29 29 28 26 27 terms of service for journalists, the reality though some of the mentions on KPP 6 6 6 5 5 is that majority of journalists are not KUJ Raila were negative, the media Total 100 100 100 100 100 members and are indifferent to its largely reported it factually. activities. ·Kalonzo Musyoka, the ODM-K S O U R C E : U N D P / S T R AT E G I C presidential candidate, received RESEARCH LTD This is exhibited by the establishment of significantly less coverage in several professional associations of both print and electronic media Recommendations journalists that focus on specific genres compared to his competitors. Following the post election mayhem, like the Parliamentary Journalists The reporting was largely there is an emerging school of thought Association, Sports Journalists accurate and fair. that we should cease broadcasting in A s s o c i a t i o n , B u s i n e s s M e d i a ·The media made a fair attempt local languages. The radio stations Development Institute and ICT Media to bring to the public domain broadcasting in vernacular languages Network among others. There is now cases of violence with the should be given a one year period to need for a professional umbrella intention of alerting responsible phase in broadcasting in either English or association on one hand and on the other authorities to take appropriate Swahili, the official and national languages the establishment of a commission to action. A case in point is the Kisii respectively. This is in not an extreme review the current terms of service and violence. Across the board, the measure because in Tanzania, radio make recommendations to the Media media presented the scene and stations can broadcast only in Swahili and Owners Association. allowed the public to make English. j u d g m e n t o n w h o w a s Additionally, the MCK should be responsible for the violence. PS Ndemo says that Kenyan media was strengthened and the first opportunity liberalised without putting a legal we have to do so is to lodge all complaints ·Hate speech was not widely framework in place, particularly for we have against the media in the pre and reported by the mainstream electronic media. “We are the least post election coverage in 2007 to MCK. m e d i a . T h e r e w a s a regulated (electronic media) country in commendable attempt by the the world. This is not good for a Just like in the legal profession where mainstream media to give developing country like ours,” he disgruntled clients first seek redress blackout to speeches that may observes. through the Law Society of Kenya and the have caused violence and medical profession where dissatisfied anarchy. However, there were Dr Ndemo says the electronic media has patients tend to first seek redress from cases where media houses did taken advantage of the vacuum and the Media Practitioners and Dentists not have the time to edit recalls that last year the Government lost Board, those who have a bone to pick inflammatory statements. A case a case against a leading media house when with media houses should in future in point is the live broadcast it tried stopping it from airing adult consult the MCK before seeking other during the PNU launch. movies during prime time. avenues.

The second report released in ”Our hypothesis on the Fourth Estate is Bibliography October 2007 says the overall that its important role in society is www.idrc.ca/en/ev-108170-201-1- coverage of political parties by all the seriously threatened by multiple factors DO_TOPIC.html television stations showed PNU including tribalism, lack of ethics, poor www.kenyaelections2007.org receiving most of the coverage at 36 training, poor pay …” Ndemo says. per cent of the total airtime. ODM The writer works for a Nairobi- was second in the television stations While dealing with tribalism is a long based FM radio station- with 35 percent of the coverage term matter that must be addressed by while ODM-K received 28 per cent

16 KatibaNews FEB 2008 THE KONRAD ADENAUER FOUNDATION IN KENYA onrad-Adenauer-Stiftung is a German development of the country. political Foundation which was founded in 1955. The Foundation is named after the Our programmes K Among other activities we currently support: first Federal Chancellor, Prime Minister and Head of Federal Government of the then West Germany ● Working with political parties to identify their after World War II. Konrad Adenauer set the pace aims and chart their development so that for peace, economic and social welfare and democratic institutions, including fair political democratic development in Germany. competition and a parliamentary system, are regarded as the cornerstones for the future The ideals that guided its formation are also closely development in Kenya. linked to our work in Germany as well as abroad. ● Dialogue and capacity building for young leaders For 50 years, the Foundation has followed the for the development of the country. Therefore, we principles of democracy, rule of law, human rights, organise and arrange workshops and seminars in sustainable development and social market which we help young leaders to clarify their aims economy. and strategies. ● Reform of local governance and strengthening the In Kenya, the Foundation has been operating since activities of residents' associations. These voluntary 1974. The Foundation's work in this country is associations of citizens seek to educate their guided by the understanding that democracy and members on their political rights and of good governance should not only be viewed from a opportunities for participation in local politics. They national level, but also the participation of people in provide a bridge between the ordinary citizen and political decisions as well as political progress from local authorities, and monitor the latter's activities the grass roots level. with special focus on the utilisation of devolved funds. Our aims ● Introduction of civic education to schools and Our main focus is to build and strengthen the colleges. We train teachers of history and institutions that are instrumental in sustaining government in civic education. In addition, we democracy. This includes: ? Securing of the constitutional state and of free participate in the composition of a new curriculum and fair elections; on civic education. ? Protection of human rights; ? Supporting the development of stable and Our principle is: Dialogue and Partnership for democratic political parties of the Centre; Freedom, Democracy and Justice. ? Decentralisation and delegation of power to Contact address lower levels; Konrad-Adenauer-Stiftung ? Further integration both inside (marginalised Mbaruk Road No. 27 regions in the North/North Eastern parts) and P.O. Box 66471 outside the country (EAC, NEPAD); and ? Development of an active civil society Nairobi 00800, Kenya participating in the political, social and economic

KatibaNews FEB 2008 MEDIA DEVELOPMENT ASSOCIATION Promoting Democracy And Good Governance through the Media