Kenya National Commission on Human Rights STILL AMIRAGE AT DUSK A HUMAN RIGHTS ACCOUNT OF THE 2017 FRESH PRESIDENTIAL ELECTIONS STILL A MIRAGE AT DUSK A HUMAN RIGHTS ACCOUNT OF THE 2017 FRESH PRESIDENTIAL ELECTIONS © 2018 Kenya National Commission on Human Rights. ISBN: 978-9966-040-54-1 COPYRIGHT CONTACT INFORMATION The contents of this publication Kenya National Commission on Human Rights may be freely used and copied Head Office, for educational and other non- P.O. Box 74359-00200, Nairobi, Kenya commercial purposes, provided 1st Floor CVS Plaza, Kasuku Rd off Lenana Road, that any such reproduction [email protected] / [email protected] is accompanied by due www.knchr.org acknowledgement of the Tel: +254-020-3969000 authors of this publication. KNCHR hakiKNCHR KNCHR 22359 © KNCHR, 2018 KNCHR would appreciate receiving a copy of any materials in which information from this report is used. COVER DESIGN AND LAYOUT Intercode Solutions / Email: [email protected] / www.intercode.co.ke PRINTED IN KENYA Concept Branding Limited All sovereign power belongs to the people of “Kenya and shall be exercised only in accordance with this Constitution.” ~Article 1, Constitution of Kenya, 2010. ii www.knchr.org Acknowledgements 1 Executive Summary 3 List of Abbreviations 5 CHAPTER 1 The Fresh Presidential Election 7 1.1 Introduction 7 1.2 KNCHR Fresh Presidential Election Monitoring Strategy 8 1.3 The Legislative, Political and Electoral Contexts Ahead of the Fresh Presidential Poll 9 CHAPTER 2 KNCHR’s Findings on Violations Arising out of the Fresh Presidential Election 18 2.1 Introduction 18 2.2 Electoral Violence 18 2.2.1 The Deaths and Injuries Recorded by KNCHR. 27 2.2.2 Injuries 28 2.2.3 Log of Injuries Resulting from Anti-IEBC Demonstrations 28 2.2.4 Assault on Police Officers by Civilians 30 2.3 Fair Electoral Campaign Opportunities and Practices 30 2.4 Misuse of Public Office and Officers, Bribery and Inducement 31 2.5 Incitement 36 2.6 The Right to Security during the Fresh Presidential Election 38 CONTENTS 2.7 Special Interest Groups 41 2.7.1 Persons with Disability (PWDs) 42 2.7.2 Violation of Children’s Rights 42 3.1 Security during the Polling Process 44 CHAPTER 3 The Polling Process 44 3.2 The Electoral Environment 47 3.2.1 Campaigns Within and Around the Polling Centers 47 3.2.2 Interference with the Polling Process 48 3.2.3 Undue Voter Influence: Ferrying of Voters 52 3.3 Polling, Counting and Transmission of Results 52 3.3.1 Commencement of Voting 52 Still a Mirage at Dusk | A Human Rights Account of the 2017 Fresh Presidential Elections iii 3.4 Polling Process 56 3.4.1 The Kenya Integrated Elections Management Systems (KIEMS) 58 3.4.2 Close of Voting Exercise 60 3.5 Counting, Collating and Tallying Process 61 3.6 Tabulation, Announcement and Signing off the Final Results 64 3.7 Transmission of Results 65 CHAPTER 4 Post Election Process 72 4.1 Introduction 72 4.2 Violation of the Right to Life 73 4.3 Freedom from Torture, Degrading, Cruel and Inhuman Treatment 83 4.4 Violation of the Right to Property. 100 4.5 Inaccessibility to Essential Goods 107 4.6 Heightened Civil Society Repression 110 CHAPTER 5 Recommendations 114 5.1 The Independent Elections and Boundaries Commission (IEBC) 114 5.2 The National Police Service (NPS) 115 5.3 The ODPP 115 CONTENTS 5.4 The Judiciary 116 5.5 The Department of Children Services 116 5.6 The Parliament 116 5.7 Communications Authority of Kenya (CAK) 117 5.8 The Ethics and Anti-Corruption Commission of Kenya (EACC) 117 5.9 The International and Local Observer Missions 117 5.10 The Media 117 5.11 The General Public 118 5.12 Private Sector 118 5.13 Humanitarian and Response Missions 118 CHAPTER 6 Conclusion 120 iv www.knchr.org List of Tables Table 1: Log of Death Cases 27 Table 2: Sample of injury incidents resulted from the anti-IEBC demonstrations. 29 Table 3: Log of Deaths 75 Table 4: Attacks carried out in private spaces 84 Table 5: Cases of property destruction 101 Still a Mirage at Dusk | A Human Rights Account of the 2017 Fresh Presidential Elections v Photo 2: Jumuiya Hotel in Kisumu on 12th September2017. The women participants in the meeting had their belongings stolen in addition to being physically harassed – (Photo courtesy - Capital FM) vi www.knchr.org Acknowledgements The Kenya National Commission on Human Rights wishes to recognise and appreciates all Kenyans within the country and in Diaspora who exercised their democratic right to vote during the fresh presidential elections held on 26th October 2017. We commend you all for queuing for short/long hours to vote for your preferred candidates The completion of this report required the leadership role and guidance of the KNCHR Chairperson, Commissioners and the Commission Secretary by providing policy direction to the monitoring team. We therefore, appreciate your immense contribution and emotional encouragement even when the electoral team including monitors worked for long hours without rest In a special way, we acknowledge the members of KNCHR Elections Hub who played a key role of gathering, processing, verifying, analysing and synthesising data from field reports they received in real-time. The long hours put in made it possible for the Commission to make timely interventions. All our key partners who are either state or non-state actors including the CSOs, the commission appreciates you for augmenting and complementing the Commission’s effort in monitoring the fresh presidential 2017 election monitoring cycle. Your complementarity role led to the completion of this report Some of incidences and pictorial evidence used in this report to illustrate cases of human rights violation during fresh presidential election are drawn from media. The commission therefore sincerely appreciate the role played by both local and international media. The commission also commends the media for objectively keeping the country abreast with the proceedings and their educative role they played in empowering Kenyans with knowledge on electoral processes and reforms. KNCHR hugely benefited from donors and development partners (e.g. the United Nations Development Programme (UNDP) and the Office of the High Commissioner for Human Rights (OHCHR)) by getting monetary and electoral Still a Mirage at Dusk | A Human Rights Account of the 2017 Fresh Presidential Elections 1 monitoring expertise. Their visits to the KNCHR Elections Monitoring Hub, their constant encouragement and words of wisdom helped strengthen our resolve to promote and protect human rights in Kenya during the fresh presidential elections. This report would not be complete were it not for members of the public who entrusted the Commission with critical information which is the bedrock of this report. Owing to your sincerity in volunteering information, the commission now boldly speak on your behalf to seek justice and accountability that such human rights violations should not recur in any future electoral process. 2 www.knchr.org Executive Summary Still a mirage at dusk is a Kenya National Commission on Human Rights (KNCHR) report that gives an account of 26th October 2017 fresh presidential election from a human rights lens. The report is a culmination of relentless efforts put by the commission to establish whether environment and processes of the Kenya’s ever Fresh Presidential elections 2017 adhered to both local and international human rights standards. Our other two 2017 election reports (The fallacious vote and Mirage at Dusk) focuses on events of political party primaries and 8th August 2017 general elections respectively. However, this report is unique in its kind because it captures events of fresh presidential elections held in Kenya for the first time after the Supreme Court annulled the 8th August 2017 presidential elections citing irregularities and illegalities. This report was motivated by the need to establish whether the environment surrounding fresh presidential election protected or violated human rights as envisioned in international and national laws/conventions. Guided by its mandate to protect and promote human rights, the KNCHR prepared to monitor the fresh presidential election by using the existing election monitoring systems which were previously established to monitor both political party primaries and 8th August general elections. The monitoring team was tasked to collect and analyse data using tools that were tailor-made for the specific stages and phases of the electoral cycle. Data captured in the form of images, audios, videos and documents was uploaded onto the KNCHR Elections Monitoring Portal (KEMP) for verification, in- depth analysis and timely follow up on electoral malpractices and human rights incidences recorded during the fresh presidential elections 2017. KNCHR deployed a team of monitors and staff to collect data in 232 constituencies and 11,946 polling stations. The team comprised of 540 monitors, 131 staff and 139 full- time observers as well as 270 short term observers. As a pre-cautionary measure, the monitors were advised remain vigilant while in the field due to political tensions and security concerns at that moment. Besides, the monitoring Still a Mirage at Dusk | A Human Rights Account of the 2017 Fresh Presidential Elections 3 team, the commission employed other mechanism of collecting data to augment KNCHR election monitoring system. Such mechanisms included; rolling out of a Toll-Free line 0800 720 627, an SMS Platform 22359, Social media; Twitter and Facebook, the Commission’s corporate website (www.knchr.org) and a dedicated election email address: [email protected] Through analysis of information collected shortly before, during and after fresh presidential elections, the commission established that various human rights were violated. such rights includes; the right to security, the right to fair electoral campaign opportunities and practices, the right to assembly and peaceful demonstrations, prisoners right to political participation, right to property, right to vote and right to run for office (to be voted for) among other.