Highlights of KNHCR findings regarding misuse of public resources in the election campaigns

The KNCHR has so far covered at least eighty (80) campaign rallies and related
events across the country. In this four key areas of focus, the KNCHR has
discovered a worrying trend of blatant violations of the electoral code of conduct
amongst other malpractices. Below is a summary of the key findings:

a) MISUSE AND MISAPPROPRIATION OF PUBLIC RESOURCES
Section 6 (i) of the Electoral Code of Conduct requires that candidates refrain from
any attempt to abuse positions of power, privilege or influence for political
purposes, including any offer of reward or threat of penalty. In this respect, use of
state resources to campaign for particular candidates is a clear breach of the Code
of Conduct.

Further, the use of state resources for partisan political campaigns offends Section 15
(1) of the Public Officer Ethics Act, which requires public officers to ensure that
property entrusted to their custody is adequately protected and not misused or
misappropriated. Using Government vehicles for partisan political activity is
therefore an electoral offence. Ministers and Assistant Ministers wishing to campaign
should use party or personal resources and not abuse their positions of political
power, privilege and influence to secure undue political advantage for their
preferred candidate.

While it is very clear that electoral campaigns ARE NOT official government
business, KNCHR has found substantial evidence of misuse of public resources in
partisan political campaigns. These mainly included the use of government vehicles
and government aircrafts to conduct campaigns.
Our monitors spotted over 141 government vehicles and two aircrafts. The KNCHR is
in the process of obtaining particulars of other forty (40) vehicles bearing civilian
registration plates but highly suspected to be government vehicles. (See attached
photographs of the vehicles Annex 1 and List of vehicles Annex 4).
The use of government resources for partisan political engagements is a blatant
misuse of tax-payers money. It is the position of the KNCHR that there can never be
any justification whatsoever for using public resources to conduct partisan political
campaigns, especially given the fact that such campaigns are essentially unofficial and private party business.

b) PARTICIPATION OF PUBLIC OFFICERS IN THE CAMPAIGNS
Section 16 (1) of the Public Officer Ethics Act states that A public officer shall not, in
or in connection with the performance of his duties as such-
a) Act as an agent for, or so as to further the interest of a political party, or
b) Indicate support for or opposition to any political party or candidate in an
election
Sub section (2) provides that A public officer shall not engage in political activity
that may compromise or be seen to compromise the political neutrality of his office.
The prohibition against public servants getting involved in politics is further
reinforced by Section 17b (1) of the National Assembly and Presidential Elections
Act, which provides that no public officer shall-
a) Engage in the activities of any political party or act as an agent of any such
party
b) Publicly indicate support for or opposition against any party or candidate
participating in an election
Sub section (2) provides that any public officer contravening this requirement is
guilty of an offence and liable to a fine not exceeding Kshs 50,000/- or to
imprisonment for a term not exceeding six months or both.
The KNCHR is concerned by the continued involvement of high-ranking government
officers in electoral campaigns. A notable example is the Presidential Advisory
Board (PAB) and the Presidential Elections Board (PEB), strategy groups for
President Kibaki s re-election campaign, which comprises of numerous high ranking
public officers including:
a. Joe Wanjui (Chancellor, University of Nairobi)
b. Nathaniel Kang ethe (Director, Kenya Revenue Authority (KAA)
c. George Muhoho (Managing Director, Kenya Airports Authority (KPA)
d. Eddy Njoroge (Managing Director, Kengen)
e. Titus Mbathi (Chairperson Kengen)
f. James Kimonye (Managing Director, Kenya Meat Commission (KMC)
g. Professor Nick Wanjohi (Vice Chancellor, Jomo Kenyatta University
Agriculture and Technology (JKUAT)

In addition to the above-cited cases, the KNCHR is following up on numerous
allegations of involvement of the provincial administration and other civil servants,
including teachers in partisan political campaigns.
KNCHR reiterates that public officers must remain non-partisan in the electoral
process and not engage in partisan political activity through acts that could
compromise their political neutrality.

c) INCITEMENT AND INCIDENCES OF VIOLENCE
• Electoral violence
Electoral violence remains a big challenge in Kenya s electoral process.
Widespread electoral violence has led to loss of lives, injuries, internal
displacements and immense destruction and loss of property. Additionally,
thousands of Kenyans are at a risk of being disenfranchised following violent
displacements targeting particular ethnic groups especially those perceived to be
politically incorrect.

Other forms of electoral violence stem from differences in opinion when supporters
of competing parties and/or candidates violently confront each other. This kind of
violence was witnessed in various parts of the country when the Party of National
Unity (PNU) and the Orange Democratic Movement (ODM) supporters clashed in
campaign rallies (see attached Incidents summary-Annex 2).
Widespread violence was also witnessed during parliamentary and civic party
nominations the November 16th 2007.

At least seventy (70) people have been reported dead since July 2007, in election
have been reported dead since July 2007, in election related violence during campaign rallies and ethnic clashes. Over 2,000 familieshave fled their homes in Kuresoi and Mt Elgon for fear of further attacks as the violence spread to various parts of the
constituencies.
Following the displacements, over 20,000 registered voters are at the risk of being
disenfranchised.
• Police Response
Whereas the police have in some instances been fairly responsive to incidences of
electoral violence, the KNCHR is nonetheless concerned by the failure of the police
to contain the recurrent acts of violence. This was the case in Kuresoi and Mt Elgon
where information on impending attacks had been relayed to the police several
days before actual violence erupted, but no immediate action was taken.
Between 20/7/07 and 25/11/07, the KNCHR contacted the police after receiving
information of impending attacks from our monitors and residents of Kuresoi and
Mt.Elgon.
An illustrative case is the fresh wave of violence that erupted in Kuresoi on 28/11/07
leading to several deaths and massive internal displacement.
Two days before the attack, the KNCHR, contacted the Police and the Provincial
Administration in Rift Valley after receiving information that groups of youths
suspected to be raiders had been spotted in Tiloa Forest.
At the time, raiders struck Murinduko village on the morning of 28/11/07, there were
only two police officers. The officers were reportedly overwhelmed by the over 100
armed raiders who launched concurrent attacks from different directions. Two
people were killed by the raiders while scores of others sustained fatal injuries.

It is instructive to note that the attacks took place when President Mwai Kibaki was
addressing campaign rallies in the neighbouring Molo constituency.
The KNCHR was informed by KNCHR monitors on the ground that most of the police
officers in the area (including all senior police officers) had been deployed to
provide security at the presidential rallies.

• Impunity
The Commission is immensely concerned by the levels of impunity with which
senior government officers continue to engage in campaign acts that violate the law.
In our first report, the KNCHR called for action against the Minister for Roads, Hon
Simeon Nyachae for his role in the Kisii violence against ODM leaders on 21/9/07.
No known action has been taken.

On 25/11/07, a government vehicle (White Mitsubishi Pajero, GK A545H) (See
vehicle in Annex 1) assigned to the Assistant Minister for Water, Raphael
Wanjala, was impounded in Naivasha carrying assorted crude weapons. The
weapons included 100 pangas, whips, bows and arrows and 70 Somali swords. Also
found in the car were President Mwai Kibaki s campaign posters and those of Mr
Wanjala. No known action has been taken against Hon Wanjala regarding this
incident. In another incident, weapons were impounded in a vehicle belonging to Hon Bifwoli
Wakoli, former member of parliament for Bumula. To date, no known action has
been taken against Mr Wakoli.

• Intimidation of rival candidates by ‘powerful’ incumbents.
The Commission has received reports that powerful incumbent politicians are using
their positions of influence to intimidate and threaten their opponents and
supporters. The Commission is investigating persistent complaints of this nature from Kangema,
Kiharu, Mathioya,Starehe and Mukurwe-ini constituencies.
The KNCHR wishes to particularly mention repeated threats and/or attacks to
parliamentary candidates Ngenye Kariuki (Kiharu), Kimani Mugo (Kangema),
Kabando wa Kabando (Mukurweini) and Bishop Margaret Wanjiru (Starehe).

Violence Against Women
While commending the unprecedented huge turnout of women aspirants in this
year s General Elections, the KNCHR notes with grave concern the spiraling wave of
violence targeting women candidates and their supporters. This kind of violence is
calculated at intimidating women candidates and scaring them away from the
political field. Ms Alice Onduto, a parliamentary aspirant for Lugari Constituency who lost in the
nominations was shot dead while on her way home to Nairobi s South C estate on
1/12/07. Her assailants have not been apprehended.
At least 30 women Parliamentary and Civic Aspirants have been attacked or
threatened since July. The KNCHR is concerned that the police have not instituted sufficient measures to
protect women candidates in view of their vulnerability.

(D) HATE SPEECH, DISTORTION, INFLAMMATORY, DEFAMATORY AND
UNSAVOURY UTTERANCES
Hate Speech is defined as any written/spoken material, any image or any other
representation of ideas or theories, which stigmatises, insults, stereotypes,
advocates, promotes or incites hatred, discrimination or violence, against any
individual or group of individuals, based on race, colour, descent or national or
ethnic origin, as well as political affiliation and religion if used as pretext for any of
these factors. Use of hate speech is outlawed in national and international human
rights law since such speech contributes to intolerance, discrimination, xenophobia
and violence.
Although there has been a slight decrease in overt use of hate speech during
campaign rallies, use of covert hate speech, defamatory and unsavoury language
continues unabated. (See attachment for sample incidences-Annex 1))
Unfortunately, Kenyans continue to condone and cheer hate speech and have
themselves become active agents of proliferation of hate campaign against
politicians and fellow Kenyans.
The KNCHR is disturbed by the escalating use of SMS and email disseminating hate
messages against particular candidates and other communities.
The KNCHR has chosen not to publish, in this report, the numerous emails and SMS
texts so as to avoid the unintended effect of further dissemination of hate speech.

However, the KNCHR shall forward the hate texts and emails to the relevant
authorities, including the ECK and Attorney General for action.
The KNCHR regrets the failure by the ninth parliament to enact the proposed
legislation against hate speech that would have criminalized the use of such
language and to protect the Kenyan citizens against belligerent politicians and
individuals.
Another issue of major concern is the distribution of leaflets, which have the
potential of exciting hate passions and causing violence amongst communities and
supporters of parties and candidates across the divide.

Posted by Mzalendo Editor on Dec. 18, 2007

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