CONTENTS FOREWORD 4 EXECUTIVE SUMMARY 8 METHODOLOGY AND DATA COLLECTION 18 BACKGROUND TO THE CONSTITUTIONAL REFERUNDUM 20 WHAT DOES THIS HAVE TO DO WITH HUMAN RIGHTS 24 INCITEMENT 28 SUBVERSIVE ACTIVITIES 36 POLITICS OF THE FORESKIN 44 USE OF UNSAVOURY LANGUAGE 50 GENDER INSENSITIVE LANGUAGE CONSTITUTING DEROGATION OF WOMEN 60 MISUSE OF STATE RESOURCES 64 ABUSE OF PUBLIC OFFICE 90 MEDIA COVERAGE OF THE REFURENDUM CAMPAIGNS 96 CONCLUDING OBSERVATIONS 106 1 REFERENDUM REPORT ACKNOWLEDGEMENTS e wish to acknowledge the contribution of staff and Commissioners of the Kenya National Commission on Human Rights (KNCHR), the contribution of staff of the Kenya Human Rights Commission (KHRC) Wand all the volunteers whose invaluable work made the production of this report possible. We further acknowledge the support of the Canadian International Development Agency (CIDA), the European Union (EU) and the Trocaire East African Regional Office. KNCHR is also indebted to the Electoral Commission of Kenya for its support. We are also grateful to the various media houses and journalists who helped provide evidence that we were unsure of, and allowed us the use of their material for the purposes of this report. To this end, we must specifically mention the Nation Media Group and the Standard/Baraza Group for their kind assistance. Most of all, we would like to extend our immense gratitude to the millions of Kenyans, who validated the Right to Vote by their conduct and belief in it, as well as those Kenyans who volunteered information, advice and encouragement to us, especially when the pressure against this project intensified. September 2006 2 REFERENDUM REPORT FOREWORD his report highlights the findings of the Kenya There were some amazing contradictions around National Commission on Human Rights the referendum, outside some of the issues covered T(KNCHR) in the course of its joint program with in this report. Importantly was the conspicuous use the Kenya Human Rights Commission in monitoring of resources and money - by both sides - in the referendum campaign rallies between campaigning for their respective view. It was a September and the constitutional plebiscite of “carnival atmosphere” for some, with frequent use November 21st 2005. Both the monitoring of the of helicopters, hired musicians and artists, and referendum campaigns and this report constitute a more. Immediately after the referendum, the joint project. As an independent national human government appealed for international assistance to rights institution, the mandate of KNCHR is about deal with the starving millions from the famine that protecting and promoting human rights by, inter crept up on us as we were engulfed in the alia, challenging the culture of impunity, checking campaigns! It is clear that tax-payer resources were against waste of public resources that could rather used especially by the YES side in the referendum, be used for providing economic rights to the but until a full and proper audit is done we can not citizens, and inducing accountability of the political tell if those resources could have been better used class to the voters. by the state to deal with the effects of the famine. The referendum observation project was motivated Clearly, accounting - from both sides - of the mainly by the objective of seeking to begin ensuring resources spent will help this country in achieving accountability of politicians at the early stage of accountability and ending impunity. And this is the campaigning, on the basis that if our political class role of bodies such as the Kenya National Audit gets used to being held accountable during the Office, and we are recommending that Parliament campaigning period, they will accept it better if and request an audit by the Kenya National Audit Office when they assume office. If this happens, then the of both sides to not only find out if tax-payer culture of impunity in Kenya, which is the reason for resources were used, but also to let us know, as existence of various human rights violations, Kenyans, how much each side spent, and where the including grand corruption, will begin to erode. money came from. Without full and proper audit, the suspicion that many of the resources, were either The National Commission was disappointed that the provided by the state or proceeds of past and present referendum was about a new constitutional corruption, will not end. dispensation only in name. Rather, it was a moment to settle various political scores, up-end different This audit is something that the Kenya Anti- political players, and assert political superiority. And Corruption Commission could also take up in in this zero-sum game between politicians, fulfillment of its mandate, and especially given the ethnicity, patronage and incitement became the generous resources at its disposal. Even more so preferred tools of the trade, with the people of the because, as the former Minister of Justice country bearing the brunt of their antics. unequivocally declared, part of the rationale for grand corruption - such as Goldenberg and Anglo Leasing - is to finance political activity. For these 5 REFERENDUM REPORT reasons, it is paramount that KACC get to the bottom information. For instance, the Registrar of Motor of the mystery of financing of the referendum Vehicles refused to furnish particulars for certain campaigns as a first step towards promoting registration numbers on the grounds that the transparency in the funding of political activity and numbers in question were classified and not as a way to protect dwindling public resources in available for public consumption. Nevertheless, this the run-up to the electoral contest next year. office continues to be funded by the tax payer. Another troubling aspect from our findings is the We hope that this report will be part of a process apparent unwillingness or inability of the Attorney that will promote more transparency and General to perform his constitutional duty to uphold accountability within the political class, that it will the rule of law. Politicians in this country continue help consolidate our emerging democracy and that to incite the public and to engage in subversion by it will result in a more accountable State promoting ethnic animosity with impunity. These bureaucracy. constitute serious offences under Section 96 and 77 of the Penal Code. But in spite of the National Finally, in this highly charged environment, it is easy Commission furnishing the Attorney General with for those subjected to scrutiny to read partisanship detailed evidence of wrongdoing by individual or malice, and many on both sides - publicly and politicians; not only has he chosen to do nothing, he privately - made these accusations against us. Let has actively prevented accountability by using the me reiterate that in this and other work, the National power of nolle prosequi to frustrate the efforts of Commission is not motivated by malice, ill will or those who seek to vindicate the law. other ulterior motive. Indeed we strive to vigorously pursue the mandate provided by the Kenya National We would also like to point out the difficulties we Commission on Human Rights Act, loyal to it and faced in gathering routine information held by the people of Kenya. Government Departments. It is ironic for a Government elected on a platform of democratic Maina Kiai credentials and openness to frustrate requests for Mwambi Mwasaru 6 REFERENDUM REPORT EXECUTIVE SUMMARY he Kenya National Commission on Human At its core, the search for a new constitution was and Rights (KNCHR), an independent national continues to be a reflection of the desire of Kenyans Thuman rights institution, teamed up with the for fundamental change: Not only in terms of a new Kenya Human Rights Commission (KHRC), a non- legal order but also in terms of a new culture of governmental organization and with the support of doing things that ultimately results in a better life for the Electoral Commission of Kenya (ECK), undertook all. It was ironic therefore that the referendum to monitor the constitutional referendum campaigns process itself reflected a contradictory emphasis on preceding the vote on November 21st 2005. maintaining “business as usual”1; and it would have been remiss for the KNCHR to sit by the sidelines as KNCHR enlisted the support of KHRC to observe the events unfolded. referendum campaigns to ensure observance of the rule of law. The vote for or against the proposed One of the main objectives of the project was constitution was the first to be conducted with the enhancement of transparency and accountability in Public Officer Ethics Act, 2003 and the Anti- the public sphere by working to strengthen corruption and Economic Crimes Act 2003 in place. democratic governance. One way of achieving this In addition to the Penal Code and the Presidential outcome was to observe fundraising efforts and and National Assembly Elections Act, these laws expenditure patterns by political players and were meant to eradicate the participation of civil thereafter calling for a more open way of financing servants in political processes, set new ethical political campaigns. The observation also intended standards, ensure a level playing field for all sides to expose statements and or speeches by political involved and protect public wealth from public “leaders” which amounted to incitement, or calls for servants inclined to abuse of office or theft of public ethnic nationalism and hatred of external ethnic resources. groups. 1 By “business as usual”, we refer to the manner in which political participation has been organized and how the conduct of political campaigns has been carried out in Kenya. The process has traditionally been opaque and not open to scrutiny or challenge by the voters. Further, political participation in Kenya has become cleaved along ethnic lines into competing chains of patronage by the various tribes for a share of resources.