tjrc report volume 2a

RECONCILIATION COMMISSION
Volume IIA
RECONCILIATION COMMISSION
Volume IIA
© Truth, Justice and Reconciliation Commission, 2013
This publication is available as a pd on the website o the Truth, Justice
and Reconciliation Commission (and upon its dissolution, on the website
o its successor in law). It may be copied and distributed, in its entirety, as
long as it is attributed to the Truth, Justice and Reconciliation Commission
and used or noncommercial educational or public policy purposes.
Photographs may not be used separately rom the publication.
Published by Truth Justice and Reconciliation Commission (TJRC), Kenya
ISBN: 978-9966-1730-3-4
His Excellency
Nairobi
3 May 2013
LETTER OF TRANSMITTAL
By Gazette Notice No. 8737 o 22 July 2009 and pursuant to section 10 o the Truth, Justice and
Reconciliation Act No. 6 o 2008, the undersigned were appointed to be Commissioners o the Truth,
Justice and Reconciliation Commission. The Commission was established with the objective o
promoting peace, justice, national unity, healing, reconciliation and dignity among the people o Kenya.
Having concluded our operations, and pursuant to section 48 o the Truth, Justice and Reconciliation
Act, we have the honour to submit to you the Report o our ndings and recommendations.
Please accept, Your Excellency, the assurances o our highest consideration.
Amb. Bethuel Kiplagat
Pro. Tom Ojienda
Table o Contents
Introduction.................................................................................................................................... 1
President Daniel Arap Moi’s Era ......................................................................................... 24
President Mwai Kibaki’s Era................................................................................................... 27
CHAPTER TWO
History o Security Agencies: Focus on Colonial Roots o the Police and
Military Forces .................................................................................................................................................. 33
Introduction ............................................................................................................................. 101
Fighting The War...................................................................................................................... 113
Assigning Responsibility ...................................................................................................... 137
Mass Graves, Burial Sites and Forensic Possibilities............................................ 142
War’s End - October 1964 .......................................................................................... 144
CHAPTER FOUR
Annex: List o Massacre Victims ........................................................................................ 552
CHAPTER FIVE
Introduction ............................................................................................................................. 590
Methodology ........................................................................................................................... 594
Detention and Torture during President Kenyatta’s Era ......................................... 602
Detention and Torture during President Moi’s Era ................................................... 605
Detention and Torture during President Kibaki’s Era ............................................. 662
Annex: List o Victims o Detention, Torture and ill-Treatment ........................... 664
CHAPTER SIX
Sexual Violence during Conicts ...................................................................................... 721
Sexual Violence in the Context o Interrogation ...................................................... 744
Sexual Violence during Forced Evictions ...................................................................... 746
Sexual Violence by the British Royal Army .................................................................. 750
Impact o Sexual Violence on Victims and their Families ..................................... 753
iii
Foreword
This Volume ocuses on the major violations o bodily integrity rights that were
committed during the Commission’s mandate period. While most o the violations in this
volume are traditionally dened to require state action – extra judicial killings, enorced
disappearances, detention, torture – the Commission adopted a more expansive view o
these violations. This was or our reasons. First, while as a matter o law the distinction
between state and non-state action is important with respect to many o these violations,
many victims are less concerned about the ocial status o those who wronged them,
and more with identiying those individuals and addressing the consequences o the
harm they suered.
Second, i the Commission were to strictly dene these violations as requiring state
action, the experience and narratives o many victims would be lost. This would diminish
the ability o the Commission to provide an accurate, complete and historical record o
gross violations o human rights committed during the mandate period.
Third, while some o the violations described in this volume were not directly committed
by state ocials, the ailure o the state to provide adequate security to many o its
citizens provided an opportunity or such violations to occur. In seeking to understand
the circumstances, actors and causes o violations committed by militias and other non-
state actors, the Commission was inevitably drawn to an analysis o state inaction, and
in particular the ailure o the state to provide, and appear to be providing, justice and
security.
Fourth, while the Commission does make recommendations with respect to the law and
legal structures, it is not a court o law, but rather a body dedicated to describing and
explaining historical injustices and gross violations o human rights. While accountability
is part o the Commission’s mandate, justice is one o three equally important pillars,
the other two being truth and reconciliation. In interpreting its mandate, thereore, the
Commission was sensitive to urthering the ullment o each o the three pillars, and
not giving undue weight to any one over the other two.
While much o this volume is ocused on violations directly committed by the state,
it also includes descriptions o killings, severe injury and violence, sexual violence,
detention, and other similar violations committed by non-state actors.
The volume starts with a general overview o the political history o Kenya. This chapter
provides the overall political context or understanding not only the other specic
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REPORT OF THE TRUTH, JUSTICE AND RECONCILIATION COMMISSION
violations in this chapter, but also the violations and other materials in the rest o the
report. Because the political history ocuses heavily on the state and its development,
we include it here in the volume that ocuses most on some o the worst violations
committed by the state.
In the chapter on political history we also, as in other parts o the report, discuss some
o the practices and violations o the colonial government. While the Commission’s
temporal mandate ormally commenced at independence, the Act also required us to
describe and analyze the ‘antecedents, circumstances, actors and context’ o violations
committed during the mandate period. There is no question that in order to understand,
or example, the newly independent government’s reaction to the Shita War (not
to mention injustices related to land, state abuse o power, corruption, and many o
the other violations discussed in this Report), one needs to understand the policies
and actions o the colonial government, as well as the legal, political, and economic
structures they established and bequeathed to the newly independent government.
This general political overview is then supplemented by a description o the history
o the state security agencies. While other agencies o the state were responsible or
historical injustices and gross violations o human rights during the mandate period (see
e.g. Volume 2B which ocuses on land, economic crimes, violations o socio-economic
rights, and corruption), the security agencies were both primarily responsible or many
o the acts o commission discussed in this volume, as well as the acts o omission (the
ailure to provide security) that allowed many o the violations committed by non-state
actors to occur.
The next chapter ocuses on the major armed conict (in this case a non-international
armed conict) within the Commission’s mandate, the Shita War. As the dening
moment o the independence o the nation, the Shita War acts as a bridge rom the
violations committed by the colonial power prior to independence and the violations
committed by the newly independent government. The Shita War had a proound
impact on the early development o the state, the eects o which are still being elt
today, not least by the survivors and their descendants in the north eastern part o the
country.
The remaining chapters are organized by class o violations. Unlawul killings and enorced
disappearances are divided into three separate parts: massacres, political assassinations,
and extra judicial killings. Detention, torture and ill treatment were unortunately
present during all periods o Kenyan history. While the inamous Nyayo House torture
chamber is oten the rst thing that one thinks o with respect to the Kenyan government
and torture, this chapter illustrates how prevalent illegal detention, torture, and other
similar treatment continues to plague the nation. Finally, the chapter on sexual violence
v
describes a particular orm o violence committed against men and women, boys and
girls. It is only in the last three decades that the international community has become
more aware o the use o sexual violence as a systematic tool o oppression and armed
conict. Sexual violence was prevalent during the colonial period, and unortunately
continued unabated through independence to the present day.
Investigations related to some o the events in this chapter – e.g. the Wagalla Massacre;
the assassinations o, among others, Tom Mboya, J.M. Kariuki, and Robert Ouko – are
some o the most anticipated by many Kenyans. The report o the Task Force reported
the high interest in providing truth and justice with respect to these violations, and
the experience o the Commission was the same. The Commission was able to unearth
some new inormation regarding some o these events. But there is no question that
the Commission was unable to provide clear answers to all o the questions raised about
these injustices. A major cause o this inability was the diculty the Commission aced
in securing documents and the cooperation o witnesses and other interested parties
with respect to these events. It is our hope that the inormation provided here will
re-emphasize the importance o the government coming clean and releasing all o the
inormation within its possession with respect to these and other historical injustices.
vi
List o Abbreviations
AP Administrative Police
AMREF Arican Medical and Research Foundation
BBC British Broadcasting Corporation
CJPC Catholic Justice and Peace Commission
CEO Chie Executive Ocer
CEDAW Convention on the Elimination o All Forms
o Discrimination Against Women
CID Criminal Investigation Department
CMS Church Missionary Society
CAT Convention against Torture and other Cruel,
Inhuman or Degrading Treatment
DSC District Security Committee
DTM December Twelth Movement
EAR East Arican Ries
EATC East Arica Transport Corps
FAO Food and Agricultural Organitzation
FERA February 18 Revolution Army
FEM February Eighteenth Movement
FGM Female Genital Mutilation
GSU General Service Unit
ICTY International Criminal Tribunal or the ormer
Yugoslavia
IMLU Independent Medico-Legal Unit
ILO International Labour Organization
IDPs Internally Displaced Persons
KR Kenya Ries
KDF Kenya Deence Forces
KPU Kenya Peoples Union
KCB Kenya Commercial Bank
KPTC Kenya Posts and Telecommunications
Corporation
KNHRC Kenya National Human Rights Commission
KNH Kenyatta National Hospital
KMC Kenya Meat Commission
KBC Kenya Broadcasting Corporation
KIC Kenya Intelligence Committee
MoU Memorandum o Understanding
MoH Ministry o Health
MMB Meat Market Board
MP Member o Parliament
NFD Northern Frontier District
NTZ Nyayo Tea Zones
NBC Nyayo Bus Company
NARC National Alliance Rainbow Coalition
NPPPP Northern province People’s Progressive Party
NFDLA Northern Frontier District Liberation Army
NSC National Security Council
NEP North Eastern Province
OLF Oromo Liberation Force
ODM Orange Democratic Movement
OCPD Ocer Commanding Police Division
OB Occurrence Book
PPO Provincial Police Ocer
PCIO Provincial Criminal Investigations Ocer
PNU Party o National Unity
PRCT People or Rural Change Trust
PEV Post Election Violence
SSAs State Security Agents
SYL Somali Youth League
TJRC Truth Justice and Reconci liation Commission
UAE United Arab Emirates
UNESCO United Nations Educational, Scientic and
Cultural Organization
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viii REPORT OF THE TRUTH, JUSTICE AND RECONCILIATION COMMISSION
1
CHAPTER
ONE
Introduction
1. On the eve o Kenya’s Independence Day, the Duke o Edinburgh said the ollowing
to a people that about to become ree citizens o a new Arican nation:
Tomorrow a new volume will be opened and an independent Kenya will start to write
a new story. The pages o this volume are still blank and empty; the story that is to be
written on them is still in the hands and minds o all the people o Kenya.1
2. The next day, 12 December 1963, independence was greeted with jubilation and
celebrations across the entire country. Immediately, Kenyans began to write the
country’s story. Almost 50 years later, Kenya’s story is a success story as it is a sad story.
It is a success story because, despite the many challenges that have bedeviled the
country, Kenyans have made huge strides in achieving the goals that had been set
orth at independence, chie amongst which is the eradication o poverty, diseases
and illiteracy. It is a sad story because it is burdened by ghastly accounts o gross
violations o human rights and historical injustices. It is mainly this sad part o Kenya’s
story that the Truth, Justice and Reconciliation Commission was tasked to examine
and document.
2
3. This Chapter locates gross human rights violations and injustices that occurred in
Kenya between 1963 and 2008 in their historical context. It provides a composite
account or historical overview o the dynamics and actors that nurtured an
environment under which these violations and injustices thrived. The overview is
presented in a chronological order beginning rom 1895 when the Kenyan state
was created to 2008 when it was at the edge o disintegration.
4. For analytical purposes, the historical period has been divided into our distinct
epochs. These epochs correspond with the our political administrations that
governed the country during the Commission’s mandate period:
British colonial era (1895 to 1963);
President Jomo Kenyatta’s era (1963 to 1978);
President Daniel arap Moi’s era (1978 to 2002); and
President Mwai Kibaki’s era (2002 to 2008).
5. As a historical overview, the scope and ocus o this Chapter is limited to describing
and explaining key events in the political realm during these our epochs. As
such, it does not describe any particular violations and injustices in great detail.
Comprehensive descriptions o such violations and injustices are covered in
subsequent chapters and volumes o the Report.
6. In analysing these key events and their historical perspective, it is argued that the
violence generated in the context o colonialism was perpetuated in the post-
colonial period through unaltered colonial structures, institutions and mentalities.
Thus Kenya’s relatively long history o human rights violations cannot be explained
nor understood adequately without unravelling the country’s colonial experience.
Kenya’s story is a success story as it is a sad story. It is a
success story because, despite the many challenges that
have bedeviled the country, Kenyans have made huge
strides in achieving the goals that had been set forth at
independence, chief amongst which is the eradication
of poverty, diseases and illiteracy. It is a sad story
because it is burdened by ghastly accounts of gross
violations of human rights and historical injustices.
3
British Colonial Era
7. The creation o modern day Kenya dates back to 1885 when European imperial
powers assembled in Berlin, Germany, to partition Arica among themselves. At the
Berlin conerence where these powers met, it was resolved that those interested in
Arica would declare their spheres o inuence then ollow such declaration with
eective control o the new territories. What ollowed was the partition o Arica,
with little knowledge o the continent, especially its hinterlands. In the end, some
roughly 10,000 Arican polities were amalgamated into 40 European colonies and
protectorates. These colonies and protectorates would later provide the basis or
the modern nation-states o Arica including Kenya. Some Arican societies with a
lot in common were rent apart while others with nothing or little networks were
used together
8. To establish and consolidate their rule in Kenya, the British employed violence
on a locally unprecedented scale and with unprecedented singleness o
mind and purpose. The colonial violence was characterized by unimaginable
human rights violations and injustices which reached its zenith in the 1950s,
a time when communities in Kenya staged a ight or political and economic
sel-determination.
9. The British, having earmarked Kenya or control, moved with speed to implement
the Berlin resolution. Within two years, the British East Arican Protectorate
(where most o the present Kenya alls) had been declared. Henceorth, most laws
applicable in England and its hinter territories such as India would be exerted in
the so-called ’protectorate’.
10. Initially, the British chose to administer its newly-acquired territory through a
proxy: the Imperial British East Arica Company (IBEAC). The IBEAC was granted
a charter in 1888 to administer and develop the territory as it saw it. It used this
authority to exploit natural resources such as ivory. The charter was exclusive but
the company aced numerous challenges in establishing its authority in Kenya.
Its agents have been described as ‘alcoholics’ who ailed to establish working
relationships with the local populations with whom they were supposed to
trade.2 Moreover, the IBEAC lacked the inances to develop inrastructure and
was thereore unable to make the investments necessary to properly advance its
East Arican presence.
2 B Berman Control and Crisis in Colonial Kenya: The Dialectic of Domination (1990) 50.
4
11. In early 1890, the company started constructing the Mackinnon-Sclater road, which
was actually little more than cattle-track designed to link Mombasa and Busia.
The company also ordered a large steamship, the SS William Mackinnon, in the
hope that it would crisscross Lake Victoria and urther stimulate commerce in the
region. Neither o these projects succeeded. Indeed the ailure o these projects,
coupled with high prole political disputes and wrangles in Uganda, eventually
convinced the British government that the IBEAC’s charter should be cancelled.
Consequently, the charter was cancelled on 1 July 1895. Administrative control o
the territory passed rom the IBEAC to the British Foreign Oce. In eect, Kenya
became a British protectorate.
From British Protectorate to British Colony
12. The declaration o Kenya as a British protectorate was primarily a diplomatic
gesture, aimed at the Sultan o Zanzibar, Germany, Italy and Ethiopia. It was a
declaration o exclusion o these powers rom this political space that ran rom
Jubaland to Lake Naivasha.3 This ‘diplomatic gesture’ proved a major obstacle to
the British settlers and the British Colonial Oce in their attempts to secure cheap
loans under the Colonial Stock Act o 1900 or the development o the protectorate.
The Colonial Stock Act o 1900 only benetted British colonies and dominions and
not protectorates.4 The crown agents, thereore, advised the colonial oce to look
into ways to change the status o the protectorate to a colony.
13. It was this desire to change the status o the protectorate to a colony that exposed
the intricate political arrangement o the territory. It became clear that the
incorporation o the 10-mile coastal strip into the colony would arouse international
conicts rom other countries that had entered into trading agreements with the
Sultan o Zanzibar.
14. The sultanate o Zanzibar or instance had signed treaties with various states:
United States o America in 1833, France in 1862, and Germany in 1886. These
treaties recognized the sovereignty o the Sultan. O particular importance was
the 1886 Anglo-Germany treaty which internationally recognized the 10-mile
coastal strip as the rightul dominion o the sultanate o Zanzibar. 5 As a result o
manipulation, persuasions and coercions, the Sultan accepted the proposal and
acknowledged that he:
3 Atieno-Odhiambo ‘Mugo’s Prophesy’ in W Ochieng’ (ed) Kenya: The Making of a Nation. A Hundred Years of Kenya’s History 1895-
1995 (2000) 7.
4 M John ‘The Ten Mile Coastal Strip: An Examination of the Intricate Nature of Land Question at Kenyan Coast’ (2011) International
Journal of Humanities and Social Sciences 177.
5 As above.
was the child o His Majesty’s government and was always ready loyally to carry out its
wishes. I His Majesty’s government considered the alienation desirable, he was quite
prepared to agree to it.6
15. Thus, in July 1920, the territory o the East Arica Protectorate was annexed to
the British Crown under the new name Kenya Colony. From then onwards, the
ormer protectorate became the Kenya Colony. The British colonialists imposed
the state structure on collections o ethno-political communities in Kenya that
historically lacked the inter-communal coherence. The communities which lived
independently rom each other were orced to live together in newly-created
colonial Kenya7. This imagined or invented political community superimposed into
much older alignments and loyalties has continue to be a ault line o ethnic socio-
political mobilization and conict till today.
Resistance and military expeditions
16. The conquest o state and territory or British settlement and exploitation in Kenya
was achieved through colonial violence.8 To orce Aricans into submission, the
colonial administration in Kenya conducted ‘punitive expeditions’ in the 1890s
against what they called ‘recalcitrant tribes’. There were military expeditions
against the Nandi in 1901, 1905, and 1906, against the Embu in 1905, against the
Abagusii in 1904, 1908, and 1914, against the Kipsigis in 1905 and against the
Abagishu and Kabras in 1907.
17. Even the ‘angels’ within the British administration who recommended peaceul
methods o expansion discovered that the majority o the Arican people were
not willing to orgo their independence without some military show. 9 Sir Arthur
Hardinge, the irst protectorate commissioner, could even remark: ‘These
people must learn submission by bullets - it’s the only school; ater that you
may begin more modern and humane methods o education’.10 The atermath
o such violence was destruction o property, rape, torture, death, and destruction
to property.
6 As above.
7 N Peter ‘Colonialism and Its Legacies in Kenya’, Lecturer Delivered During Fulbright Hays Group Project, July 6 th to August 6th
2009, Moi University-Kenya; O Bethwell “Introduction” in W Ochieng’ (ed) Kenya: The Making of a Nation. A Hundred Years of
Kenya’s History 1895-1995 (2000).
8 This study borrows from Tirop Simatei’s Work “Colonial Violence, Postcolonial Violations: Violence, Landscape and Memory in
Kenyan Fiction”. Here colonial violence is understood to mean relationships, processes, and conditions that attended the practice
of colonialism in Kenya and that violated the physical, social, and/or psychological integrity of the colonized while similarly impacting
on the colonizer.
9 W Ochieng’ A History of Kenya (1985) 89-90
10 For details se J Lonsdale ‘The conquest state, 1895-1904’ in O William (ed) (1989) A Modern History of Kenya, 1895-1980
(1989) 11.
18. Having been appointed as the irst commissioner, Sir Hardinge later realized
the need to convert the external, costly and destructive orce o conquest into
internal, negotiable and productive power.11 In order to set up an administrative
and judicial system, Hardinge ell back on the IBEAC administrators, retaining
people like Charles Hobley and Martin the Maltese. He proceeded to divide the
land into provinces and districts. And since administrative boundaries tended
to be based on ethnic or linguistic units, they roze cultural development and
population mobility at a certain point in time, thus ossilizing situations which
had been luid.12 But more importantly, the administrative creativity o Hobley
witnessed the planting o seeds or ethnic hatred as communities started to
establish ownership o their territories to the exclusion o others. Hardinge:
had low opinion o the Aricans, whom he regarded as barbarous races and he thereore
hoped to rely on the Arabs and to a lesser extent, the Swahili people … who according
to him were a civilizing inuence or local administration. The process o dividing the
Kenyan people into primitive tribes and civilized tribes had begun … and intensied as
the administration spread into the interior”13.
19. Sir Arthur Hardinge was succeeded as a commissioner by Sir Charles Elliot,
who had an even lower opinion o the Aricans. His irst task was to consolidate
British control within the protectorate and to ormulate administrative policies
and structures suitable or white settlers. Unlike his predecessor, his actions
witnessed not only grave injustices against Aricans, but also widespread
ighting between dierent Arican ‘tribes’ in the second hal o the 19th Century.
The tribal units thus created and deined were encased in district boundaries,
but many o these classiications were arbitrary in some cases dividing groups
more sharply than they had been previously while in others they combined
groups that were originally distinct. As Ogot aptly concludes, ‘new and bigger
tribes such as the Luhya, the Kalenjin, and the Mijikenda had been invented …
by the Aricans themselves to saeguard the interest and welare o smaller units
against possible domination by the larger groups’. This kind o balancing action
has tended to intensiy ethnic chauvinism and the struggle or the capture o the
post-colonial state14.
20. On the ground, the British sought to establish alliances and loyalties o Aricans.
In so doing, the British sought to manipulate, subvert and at times circumvent
the existing indigenous systems o authority. As Atieno-Odhiambo explains:
11 As above.
12 Ogot Bethwell (2000:21) ‘Boundary Changes and the Invention of Tribes’ in William Ochieng’ (ed) Kenya: The Making of a Nation.
A Hundred Years of Kenya’s History 1895-1995 (2000) 21.
13 As above.
14 As above.
‘the politics o this time were at one level the politics o conquest, but the more
enduring heritage was the politics o manipulation’. 15 Such were evident as the
British manipulated leaders o the Maasai namely Olonona, Ole Galisha, and
Ole Masikonti. The British too manipulated the power equation in Luhya land
by inventing empires or Mumia in Wanga and or Sudi Namachanja in Bukusu.
This was ollowed by imposition o new leaders such as Karuri wa Gakure and
Kinyanjui wa Gathirimu among the Kikuyu. In the coastal region, the Sultan o
Zanzibar was manipulated by Sir Edward Northey and the British residents in
Zanzibar to allow annexation o his 10-mile coastal strip to be part o the new
colony.16

21. Practically everywhere in Kenya, as was the case in the rest o Arica, the
imposition o colonial rule was resisted. Such resistance inevitably provoked
military retaliation rom the colonial powers. Better armed and employing crack
shot mercenaries, colonial powers imposed their rule by violence and/or military
expeditions. This was particularly the case between 1895 and 1914; a phase o
paciication o ‘recalcitrant tribes’ ighting or the preservation o their political,
cultural and economic independence.17 The period was thus characterized by
an unimaginable degree o human rights abuses against deenceless Aricans.
The military expeditions were accompanied by crimes such as thet, rape,
death and destruction o property by the colonial soldiers or their associates.
Such actions dey the view that the British colonialist used humane and
gentle methods to impose their rule in Kenya.18
22. Examples abound o how the British used brutal orce to impose its rule. On the
Kenya coast, Swahili chies like Mbaruk were amous or resisting alien rule. When
the British took over Kenya, the Mazrui chies resisted British rule as they had
repeatedly done in the past. They knew that they could not win pitched battles
against an enemy who was ar more powerul and better armed than they. So
they concentrated on ghting limited engagements and making lightning attacks,
and they sustained a airly successul resistance movement or some time. But the
British were in Kenya to stay. They thereore imported Baluchistan regiments rom
India to crush the Arican resisters.19 Mbaruk, the leader o the resistance, ed to
Tanzania, only to all into German hands.
15 Atieno-Odhiambo (2000:7) “Mugo’s Prophesy” in William Ochieng’ (ed) (2000) Kenya: The Making of a Nation. A Hundred Years of
Kenya’s History 1895-1995. Maseno University: Institute of Research and Postgraduate Studies.
16 Mwaruvie John op.cit, pg 177
17 S Kiwanuka From Colonialism to Independence: Reappraisal of Colonial Policies and African Reactions 1870- 1960 (1973) 20.
18 As above, 21.
19 As above, 21.
23. He and our other leaders died in exile.20 The same ate beell the Ogaden Somali in 1889,
when they too attempted to resist British rule. Their opposition to British colonialism
orced the British to resort to more violent methods. Convinced that the best ‘tutors’ to
make the Ogaden see reason were bayonets and machine guns, the British in Kenya
moved against the Ogaden with the help o Indian regiments in 1889. Ogaden resisters
were smashed and hundreds o their cattle conscated by the British. 21 Similarly, while
orcing the Taita to submission, Captain Robert H. Nelson remarked:
In a ew minutes the men cleared out, leaving some teen dead on the spot and I have
no doubt that a good many received atal wounds. I then marched on to the village o
the men who had been ghting us, burning the surrounding villages and seizing the
sheep and goats belonging to them.22
24. In the Mount Kenya region, Colonel Richard Meinertzhagen also led many bloody
expeditions between 1902 and 1906, in which many Kikuyu and Tharaka people
were killed and about 11,000 head o stock captured.
25. British soldiers, porters and other associates made more injustices in western
Kenya, particularly among the Kisii and the Luo people. When a message arrived
in 1905 o the Kisii revolt, a detachment o a hundred Arican Police under Robert
Foran and a company o the Third King’s Arican Riles (KAR) under captain
Jenkins were immediately dispatched to quell it. This is how Foran described the
encounter:
The machine gun was kept in action so long during this sharp engagement that it
became almost red-hot to the touch. Beore then … they let several hundreds dead
and wounded spearsmen heaped up outside the square o bayonets. This was not so
much a battle as a massacre, but wholly unavoidable under the circumstances. It was an
urgent case o decimating the determined attack or else being completely wiped out by
the Kisii warriors.23
26. In 1908, the British organized another expedition, when the Kisii ambushed and
speared a colonial administrator, Northcote. One o the relie patrols headed by Foran
sent to Northcote’s aid explained that ‘… the Arican Ries were putting in some
strenuous work – burning villages, devastating standing crops, capturing livestock
and hunting down the bolting warriors’24 A series o telegrams conveyed the results
o the expeditions to the colonial oce in London. On 1 February 1908, a telegram
received by the colonial oce read in part: ‘Result o operations in Kisii to 28 January -
20 Ochieng’ William A History of Kenya (1985) 90.
21 As above.
22 As above, 91.
23 For details see W Audrey Rural Rebels: A Study of Two Protest Movements in Kenya (1977) 25.
24 As above.
cattle captured 5,636 sheep and goats 3,281 and 100 Kisii killed’. Two days later another
telegram reported the number o Kisii dead had risen to 160.25
Manipulations
27. The British colonialists’ injustices against the people o Kenya were not only limited
to the 1895-1914 military expeditions. British administrators and unctionaries
used manipulation, colonial laws and policies, and continued to use violence
and harassment to appropriate both human and natural resources rom Kenya
throughout the colonial period.
28. Manipulations were more evident in the signing o treaties involving British
administrators and Arican leaders to create rontiers or European settlers rom
Britain, Canada, South Arica, Australia and New Zealand. One such ‘treaty’ which
easily comes to mind was the rst and the second Maasai Treaty o 1904 and 1911.
The rst treaty, signed without the knowledge o the Maasai people, agreed to move
the Naivasha Maasai en masse to the Laikipia plateau, together with their cattle.
Such a move enabled white settlers to occupy the whole o the Rit, Zedong and
Gong. But even this grave injustice committed against the Maasai by the colonial
government did not satisy the appetite o the white settlers or more productive
land. They pressed that the Laikipia Maasai should be moved again to a southern
reserve so that the Maasai tribe could be together in a United Maasai Reserve. On
4 April 1911, the second Maasai agreement was signed according to which the
northern Maasai had agreed to move to the southern reserve. Subsequently, the
new Maasailand was declared a closed area and the policy o reservation or the
new tribe continued throughout the colonial period. As such, attempts to urther
alienate Maasai land during the post-colonial period engendered strong ethnic
eeling among the people.26
29. It was not only the Maasai who suered colonial manipulations, the same was
the case in the Kiambu-Thika area rom 1903 to 1908, central Rit Valley 1904
to 1914, and lastly in the Kericho to Nyeri/Nanyuki areas through the soldier
settlement schemes ollowing the First World War. This last scheme let the
Kipsigis without Kimulot, the Nandi without Kipkarren valley, the Sabaot without
the Trans-Nzoia pastures and made the Samburu, Meru and Kikuyu squatters in
the Timau-Nanyuki areas.27
25 As above.
26 For details, see O Bethwell ‘Boundary Changes and the Invention of Tribes’ in William Ochieng’ (ed) Kenya: The Making of a
Nation. A Hundred Years of Kenya’s History 1895-1995 (2000) 21; Ochieng’ William A History of Kenya (1985) 90.
27 Atieno-Odhiambo (n 3 above) 8.
10
Chies and orced labour
30. British oicials, with Arican submission to their authority ater paciication, were
pressed by the reluctant metropolitan taxpayers to ind means o making the
colonial territories sel-inancing. They achieved this through the creation o
the oice o the chie as agents o local administration and tasked them with
the responsibility or tax collection, maintenance o law and order and more
importantly to supply cheap labour or public and settler requirements. It was
the assignment o these tasks which put the colonial chies at the oreront in the
abuse o human rights.
31. During the mobilization o labour or Europeans, chies were empowered by a
series o labour laws to call out any number o able-bodied persons to labour
without pay on public works28. This mandate was extended at the outbreak o
World War 1 to inding able-bodied manpower or the First World War, a war that
caused the death o over 50,000 Aricans and let thousands more wounded.
Astonishingly, most Aricans who were recruited into the war had very limited
understanding o why the Europeans were ighting. In 1919 the Northey Circular
spelt out its extension to embrace the directive on Arican labourers to work or
settlers at very low wages. These aspects o chie authority were backed by orce.
Chies had retainers who in the process o tax collection, punitively coniscated
peoples’ animals and produce, seized their women and routinely whipped the
young men.29 Such coercive chiely authority, supervised and approved by the
district commissioners, brought in the intense hatred o the system, even in the
post-colonial period.
32. In his 1936 report on Kenya’s nances, Sir Alan Pim identied two potential
opportunities or corruption - the counting o huts or hut tax, and the enorcement
o tax payment by chies. The hut counters responsible or determining tax liability
were, certainly not o a type likely to be exempt rom the temptation to make a
little money; they used both inuence and bribery to exempt some who were
required to pay and to extort taxes rom those who were not. Additionally, due to
limited stang at the district level, collection was largely enorced by employing
the services o the chies or headmen with their various satellites. This unavoidably
gave opportunities or the abuse o authority, either in the direction o using
improper means to enorce payment, or in connection with applications or
exemption.
28 Ochieng’ William A History of Kenya. Nairobi (1985) 16.
29 Atieno-Odhiambo (n 3 above) 8
11
Land alienation
33. Ater the First World War, the colonial administration was keen at increasing the
number o settlers, increasing settler land holding and boosting settler agriculture
by providing them with good inrastructural services. Needless to say, the land
alienated to the settlers was carved out o the most ertile regions, land which
was inhabited by the Aricans. Thereore, the main injustice on Aricans ater
the First World War ocused on land alienation and the creation o the Arican
squatters, both in Central and the Rit Valley regions o colonial Kenya.
34. In enorcing this injustice, the colonial administration introduced the Crown
Lands Ordinance o 1915,30 which declared all ‘waste and unoccupied’ land in
the protectorate ‘Crown Land’ subject to the governor’s powers o alienation. In
the British imagination, such land included any empty land or any land vacated
by a native.31 The protectorate administration gave no cognizance to customary
tenure systems, and by 1914 nearly 5 million acres (2 million hectares) o land had
been taken away rom Kenyan Aricans, mostly rom the Kikuyu, Maasai and Nandi
communities. It created the reserves or ‘natives’ and located them away rom areas
scheduled or European settlement. These developments witnessed the creation
o what Mamdani reers to as ‘citizen’ (settlers) and ‘subject’ (Aricans) – a dual
system o land tenure and land administration to consolidate colonial rule.32
35. Colonial appropriation o land and alienation o a large section o the Arican people
produced a situation where by 1930, probably more than 15 000 Kiambu Kikuyu had
lost their land ownership, while a similar number lost their communal or ‘tenant at
will’ use o land. Thus, approximately 30,000 Kikuyu had lost land rights in Kiambu
district alone. About hal that number lost land rights in Murang'a and Nyeri districts.
The total loss o land among the Kikuyu could thereore involve well over 45,000
people. Annual reports or the period indicate that there were 41,156 Aricans in
European-settled areas o Nakuru and Naivasha and these would seem to support
our estimates, given that the majority o Aricans in these areas were Kikuyu.33
36. Other ‘troublesome communities’, like the Talai, were in 1934 orcibly evicted rom
Kericho/Nandi areas on accusations o being extortionist and sent to open jails in
Lambwe, a tsetse-ies inected area in a valley where sleeping sickness was rampant.
30 S Wanjala Essays on Land Law: The Reform Debate in Kenya (2002).
31 Syagga Paul (undated) Public Land, Historical Land Injustices and the New Constitution. Society for International Development
(SID): Constitution Working Paper No. 9
32 M Mamdani Citizen and Subject: Contemporary Africa and the Legacy of the Late Colonialism (1996).
33 Alila Patrick Kinyanjui Kabiru, and Wanjoyi Gatheru (Rural Landlessness in Kenya (1985) 2.
12
It was described as the ‘Valley o Death’ where 30 years earlier, 60 percent o Lambwe
valley inhabitants had been killed by diseases. 34
37. By 1945, there were about 203,000 people rendered squatters and labourers in
European arms, with 101,000 Kikuyu as resident labourers on European arms and
about 21,000 more employed mainly in the government’s department o orestry. A
substantial number o Aricans in the settled area were not enumerated in this labour
census and the total number o the Kikuyu in the alienated area must have been a
lot more than 150,000 by 1945. No wonder, three years later, in 1948, the number o
Kikuyu recorded as living outside their ‘native reserves’ was more than 294,000 or
nearly 29 percent o the total Kikuyu population. Some o them lived in towns or in
other Arican reserves, but nearly all o them had been eectively uprooted by the
process o alienation. They were outside their reserves in search o work and or new
land as a means o subsistence.35
38. The creation o reserves in areas deemed unsuitable or European settlement had
ar-reaching implications, both or the natives and the colonial administration.
Underlying them was a policy o exploitation and oppression against the
colonized people accentuated by land alienation, orced male labour mobilization,
overcrowding, insecurity, stagnation in Arican agricultural production, massive
landlessness and rapid land deterioration due to ragmentation, over-stocking
and soil erosion.
39. In the long term, the problems in the reserves led to unrest and eventually to a
political uprising – the Mau Mau resistance movement that organized around
the issue o oreign rule, land alienation and political and economic inequality. 36
The colonial state’s answer to the unrest was to initiate an ambitious project o
land tenure reorm in the reserves that would serve as a bulwark against rural
radicalism. The colonial agronomist’s thought about the individualization o land
tenure was rst contained in the less well-known JH Ingham Report published in
1950. However, the blueprint that was to destroy the indigenous/communal access
to land was ormulated by Roger Swynnerton in what was to be known as the
1954 Swynnerton Plan. The architect o this plan argued persuasively in support o
individualization o tenure in Kenya as a pre-condition or enhanced agricultural
production37.
34 D Anderson ‘Black Mischief: Crime, Protest and Resistance in Colonial Kenya’ (1993) 36 The Historical Journal 36, 851-877
35 For details see: A Patrick et al Rural Landlessness in Kenya (1985) 2.
36 S Okuro Land Reforms in Kenya: The Place of Land Tribunals in Kombewa” in Elisio Macamo ed. Negotiating Modernity (2005).
37 Studies have shown that those on whose names land was registered as principal landholders-men, assumed exclusive individual
rights in given pieces of land at the expense of women, widows and juniors whose rights to land remained either secondary or
usufruct.
13
Mau Mau War
40. The Mau Mau war, rom 1952 to 1955, marked the climax o Arican resistance to
British colonial rule in Kenya. It was a key event in Kenya’s history. Recent studies
by Caroline Elkins, David Anderson and Charles Hornsby have demonstrated the
extent o British atrocities hitherto undocumented in Kenyan History.
41. In contrast to the conventional notion that the counter-insurgency was aimed
at the Mau Mau militants, Elkins recognizes that the British interned practically
the entire Kikuyu population as Mau Mau. Key to this was turning the insurgency
inward, into a battle o Kikuyu militants against Kikuyu loyalists, thereby turning
Mau Mau insurgency into civil war. The turning point came on the night o 26
March 1953, at Lari, which was the site o two successive massacres, the rst by
the Mau Mau and the second by homeguards. During this massacre, Anderson
describes how the Mau Mau militants herded Kikuyu men, women and children
into huts and set them on re, hacking down with pangas anyone who attempted
escape, beore throwing them back into the burning huts. The vast majority o the
400 killed at Lari were women and children.
42. But even more importantly, the Mau Mau started to target, less and less the settlers
on the highlands or even less the colonial power itsel, but increasingly those they
perceived as local beneciaries o colonial power, turning neighbours and relatives
against each other in a rapidly brutalizing civil war. This was not the only massacre;
the colonial administration also committed a similar massacre in Hola in 1959 in
which 11 detainees were clubbed to death, with 77 having permanent injuries. 38
The submissions o Michael Gerard Sullivan, the colonial ocer in-charge o Hola
camp to the commission investigating the death o the detainees revealed the rm
instructions rom Compell, the deputy commissioner o prisons, to torture the Mau
Mau detainees by denying them drinking water or a number o hours, weeding
rice elds with bare hands and use o batons on the non-cooperative ones.39
43. Elkins has indeed demonstrated the injustices meted on the Mau Mau by the colonial
police and the loyalist. For example she argues that electric shock was widely used, as
well as cigarettes and re. Bottles (oten broken), gun barrels, knives, snakes, vermin,
and hot eggs were thrust up men's rectums and women's vaginas. The screening
teams whipped, shot, burned and mutilated Mau Mau suspects, ostensibly to gather
intelligence or military operations and as court evidence.
38 M Wunyabari Mau Mau and Kenya: An Analysis of a Peasant Revolt (1993).
39 KNA, Documents related to the death of 11 detainees at Hola camp in Kenya. Reference No. K967.62
14
44. Between 150,000 and 320,000 Aricans were detained or varying lengths o time
in more than 50 detention and work camps. The treatment in the camps, staed
by little trained non-Kikuyu, loyalists and European settlers, was oten brutal. The
inormation about what was happening there was careully controlled and the
colonial oce and the governor systematically denied reports o mistreatment.
Elkins’ extended descriptions o the regime o torture, one is struck by its
predominantly sexual nature. Male detainees were oten sexually abused ‘through
sodomy with oreign objects, animals, and insects, cavity searches, the imposition
o a lthy toilet bucket-system, or orced penetrative sex’. Women had ‘various
oreign objects thrust into their vaginas, and their breasts squeezed and mutilated
with pliers.’ Variations abounded, with sand, pepper, banana leaves, ower bottles
(oten broken), gun barrels, knives, snakes, vermin, and hot eggs being thrust up
men’s rectum and women’s vaginas. A common practice during interrogation was
to squeeze testicles with pliers. Josiah Mwangi Kariuki (popularly known as J.M
Kariuki) was detained in 14 detention camps between 1953 and 1960. In his book
‘Mau Mau Detainee’, he wrote that his experience at Kwa Nyangwethu detention
camp was the worst:
Kwa Nyangwethu was, however, particularly bad and was notorious not or mere
beatings, but or castration. I have seen with my own eyes that Kongo Chuma whom
I rst met in Nakuru beore he was detained and who is now living at Kianga in
Embu district, has been castrated. He had not been like this when he was in Nakuru
but when we met in the detention camp at Athi River he told me it has been done to
him by the screeners at Kwa Nyangwethu. He also told me that bottles o soda water
were opened and pushed into the uterus o some women to make them coness.
Kongo said these things were done by the Aricans but the European ocers knew
what was going on.40
45. The Mau Mau ghters were also responsible or unspeakable atrocities. Contrary to
Arican customs and values, they assaulted old people, women and children. The
horrors they practiced included decapitation and general mutilation o civilians,
torture beore murder, bodies bound up in sacks and dropped in wells, burning
victims alive, gouging out o eyes and splitting open the stomachs o pregnant
women41. Mau Mau ocially ended with the capture and execution o Dedan
Kimathi, the uprising’s most senior leader in October 1956. While the gures are
debatable, the Mau Mau are said to have caused the death o at least 14,000
Aricans, 29 Asians and 95 Europeans.
40 JM Mwangi Mau Mau Detainee (2009) 30.
41 O Bethwell Alan ‘BRITAIN'S GULAG Histories of the Hanged: Britain's Dirty War in Kenya and the End of Empire . By
DAVID ANDERSON. London: Weidenfeld and Nicolson, 2005. Pp. viii+406 (ISBN 0-297-84719-8). Britain's Gulag:
The Brutal End of Empire in Kenya . By CAROLINE ELKINS (London: Jonathan Cape, 2005). Pp. xiv+475". The
Journal of African History (Cambridge University Press) 46: 493–505.
15
46. To establish the root causes o Mau Mau, the colonial administration appointed
the Corield Tribunal, which relied extensively on psychologist JC Carothers
and in their report recorded 11,503 Mau Mau dead. It was understandable that
the number was under-estimated to disguise the erocity o the colonial oice
response to Mau Mau. A thousand were hanged upon being convicted by courts,
while more were killed by troops in the orest. There were also extra-judicial
executions by the colonial police and homeguard units. Moreover, the beating
and torture o Kikuyu suspects was commonplace, and the security orces
murdered hundreds. The Mau Mau war did not only mark the end o the Arican
resistance against colonial rule, but it was the climax o colonial atrocities on
Aricans suspected to be members o Mau Mau.
47. In 1999, a ew ormer ighters calling themselves the Mau Mau Original Group
announced that they would attempt a £5 billion claim against the UK, on behal
o hundreds o thousands o Kenyans or ill-treatment they said they suered
during the rebellion. In November 2002, the Mau Mau Trust - a welare group
or ormer members o the movement - announced it would attempt to sue the
British government or widespread human rights violations committed against
its members. With the assistance o the Kenya Human Rights Commission, in
2011, the Mau Mau group succeeded in suing the British ater a British court
ruled that the Kenyans could sue the British government or their torture.
48. Ater the Mau Mau War, the colonial government not only relaxed the ban on
the ormation o Arican political parties, but also attempted to increase Arican
representation in the colonial administration. The colonial administration
permitted the re-establishment o Arican district- based political parties and/
or associations and disallowed national organizations. The irst to be registered
was the Nairobi District Arican Congress in April 1956, with Mau Mau lawyer
Argwings Kodhek as the president. The other district-based associations that
emerged at this time were the Mombasa Arican Democratic Union, the Arican
District Association, the Abagusii Association o South Nyanza District, the South
Tere were also extra-judicial executions by the colonial police and homeguard units. Moreover, the beating and
torture of Kikuyu suspects was commonplace, and the security forces murdered hundreds.
16
Nyanza District Arican Political Association, the Taita Arican Democratic Union,
the Nakuru Arican Progressive Party, the Nakuru District Congress, the Abaluhya
Peoples Association and the Nyanza North Arican Congress42.
49. One o the legacies o these district-based political associations was that the pace
o political developments among the various districts continued to be uneven
and parochialism rooted in ethnic loyalties was encouraged at the expense o
Arican unity.43 It provided the oundation o alignment o political orientation and
ethnicity. The other eect was the emergence o local powerul gures that would
resist attempts at political centralization by colony wide political organization such
as the Kenya Arican National Union (KANU).
50. The process o increasing Arican and other races’ representation into the colonial
administration was initiated by the British Colonial Secretary Oliver Lyttleton
in 1954. In his advice to the administration, he said ‘it is prudent to have all the
inhabitants o the colony to share in the responsibility o government, albeit at a
subservient level’. His advice resulted in the enactment o the Lyttleton Constitution
in 1954, which put in place institutional structures to curb anti-colonial revolts,
establish a multi-racial society and provide a timetable or independence. But
in reality it asserted minority interests while the language o democracy was
employed to hoodwink the majority.44 The War Council created by the constitution
was racially exclusive and emerged as the supreme organ with powers to enact
legislation to deal with the Emergency without reerence to the legislative council.
Even the Council o Ministers was by and large in the hands o a handul o settlers.
The contradictions emanating rom the dispensation o the Lyttleton Constitution
culminated in protracted political struggle in which Aricans, Arabs and Asians
demanded an all-inclusive political process. The political crises ater the 1957
general election witnessed the enactment o another constitution, the Lennnox
Boyd Constitution in 1956.
51. While the Lennox Boyd Constitution increased the number o Arican representatives
in the Legislative Council, it did not adequately address the Aricans’ grievances.
However, it sharpened divisive racial and ethnic political interests that spilled over into
the 1960 Lancaster House Constitutional Conerence where a new constitution was
negotiated. Thereore the Lancaster House conerences became a space or contest
by various racial groups and emerging political elites and commitment to democratic
and social change remained abstract.45
42 Ogot Bethwell and Ochieng William (eds ) Decolonization and Independence in Kenya (1995) 52.
43 As above.
44 For details see: Samwel Alfayo Nyanchoga et al Constitutionalism and Democratisation in Kenya , 1945- 2007 (2008).
45 As above.
President Jomo Kenyatta’s Era
52. On 12 December 1963, Kenya got independence rom British rule with Jomo
Kenyatta as the Prime Minister. A year later, Kenya became a Republic with Jomo
Kenyatta as the President and Jaramogi Oginga Odinga as the Vice President.
Within a short period into independence, gradually returned to the ways o the
colonial master. The government and the ruling political party, Kenya Arican
National Union (KANU), not only retained repressive colonial laws, but also became
increasingly intolerant o political dissent and opposition. Political assassinations
and arbitrary detentions were turned into potent tools or silencing dissenting
voices and ultimately or dismantling opposition political parties. For the larger
part o Kenyatta’s reign Kenya was a de acto one-party state.
Ofcial amnesia
53. The attainment o Kenya’s political independence on the 12 December 1963, with
Jomo Kenyatta as the rst Prime Minister, marked the culmination o 68 years o
anti-colonial struggles waged by Kenyan Aricans to ree themselves rom British
domination, oppression and exploitation. However, in his independence speech,
Jomo Kenyatta did not suggest any substantial change in the colonial structures.
The colonial state would remain intact – despite the act that the ght or national
independence had been dominated by demands or social justice, egalitarian
reorms, participatory democracy, prosecution o those who had committed
mass killings and other orms o crimes during the war o independence, and
the abolition o the colonial state and its oppressive institutions.
54. Also, in his independence speech, Jomo Kenyatta never mentioned the
heroism o the Mau Mau movement.46 No Mau Mau reedom songs were
sung, no KLFA leaders was allowed to speak during the historic day. Instead,
Kenyatta asked the people to orget the past – to orgive and orget the
atrocities committed against them by the British and their Kenyan supporters
during the war o independence47. He became no radical on nationalization
o oreign-held assets including land and oten remarked: “I regard titles as a
private property and they must be respected … I would not like to eel that
my shamba (smallholding) or house belongs to the government. Titles must
be respected and the right o the individual saeguarded48”. In this way, the
Kenyatta administration provided a relie to the settler community that their
land will not be taken away rom them without compensation.
46 The usage of KLFA to refer to Mau Mau is rather problematic in literature. KLFA is not simply another name for Mau Mau: it was the name that Dedan Kimathi used for a coordinating body which he tried to set up for Mau Mau. It was also the name of another militant group that sprang up briey in the spring of 1960; the group was broken up during a brief operation from 26 March to 30 April
47 Maina wa Kinyatti (2008:363) History of Resistance in Kenya, 1884-2002 (2008) 63. 48 For details see Daniel Branch Kenya: Between Hope and Despair, 1963-2011 (2011)
18
55. The attainment o political independence shadowed several tensions and
cleavages which occupied the new ruling elites prior to and immediately ater
independence.49 For example, the radicals represented by Oginga Odinga and
Bildad Kaggia who avoured nationalization o oreign owned corporations,
seizing o white settler arms without compensation and ollowing more pro-
Eastern oreign policy. Odinga persuasively argued that “I understand that
in communist countries the emphasis was on ood or all. I that was what
communism meant then there was nothing wrong with that50”. He as his
supporters opted to look to Soviet Union, China and their allies or backing.
On the other hand, conservatives led by Jomo Kenyatta and Tom Mboya - the
nationalists who espoused a constitutionalist and reormist approach and
were ater independence concerned with the maintenance o the colonial
legacy. As the struggle raged or control o the state, decisions based on short-
term expediency were interspersed with undamental directional choices.
56. Kenya soon returned to a command and control leadership model strikingly
similar to that o the colonial era. Decisions about development, money and
military protection drove oreign relations, domestic policy and land policy,
which in turn drove greater centralization and a conservative social and
political model that combined individual accumulation with a partisan and
interventionist state.51 The struggle or power saw the abandonment o the
Majimbo Constitution, which conceded much autonomy to the regions or a de
facto one party state. The dissolution o the Kenya Arican Democratic Union
(KADU) was a critical moment, setting the stage or three decades o single-
party dictatorship and prioritisation o the maintenance o public order by the
Kenyatta administration.
Dealing with Mau Mau
57. Jomo Kenyatta took over power in a country which was already polarized by
the Mau Mau issue over land and more importantly “ownership o the ght or
independence”. The reason or this was the expectation that those who ought
or Uhuru (independence) should exclusively eat the ruits o independence52.
This debate thrived even in the context o the revelations that Kenya had many
powerul voices in the anti-colonial movement. Indeed Bethwell Ogot has
demonstrated the roles and responsibilities o all the communities in Kenya, in
anti-colonial movements53. Thereore the rst issue which Jomo Kenyatta had
to deal with was the Mau Mau – a movement whose main agenda revolved
49 For details see: Hornsby Charles Kenya: A History Since Independence (2012) 50 For details see Branch (n 48 above) 36. 2011 51 As above. 52 E Atieno Odhiambo ‘Matunda Ya Uhuru, Fruits of Independence: Seven Theses on Nationalism in Kenya’ in E Atieno Odhiambo
and John Lonsdale (eds) Mau Mau and Nationhood: Arms, Authority and Narration (2003). 53 O Bethwell ‘Mau Mau and Nationhood: Untold Story’ in ES Odhiambo and J Lonsdale (eds) Mau Mau and Nationhood: Arms,
Authority and Narration (2003).
around land and the colonial land alienation among the Kikuyu, which had
created a special group o Kikuyu without land54. Beore independence,
Kenyatta had pardoned the remaining Mau Mau detainees in prison and
issued an amnesty or Mau Mau ghters to leave the orest and surrender their
weapons. More than 2,000 did so in the rst weeks ater independence ar more
than the British had expected55. But ater the amnesty or Mau Mau expired in
January 1964, the government started treating the remnants as criminals.
58. By early 1965, most o the remaining Mau Mau hard-core ghters had been
captured and killed by the new independent government. The Mau Mau who
made good their threat to return to the orest under the slogan o ‘Not yet
Uhuru,’ Baimungi, were quickly executed. Kenyatta’s message in the 1960s
was clear - there would be nothing or ree. In the 1970s, it was politically
imprudent to be called Mau Mau. Although on paper, Kenya acknowledged the
role Mau Mau had played in the struggle or independence; his government
persistently downgraded its importance and did nothing to reward the those
who had sufered. Despite President Kenyatta’s promise in 1964 that the land
conscated during the Emergency would be returned, nothing happened.
59. The British removed and hid most records o the war on the eve o independence to
protect loyalists rom reprisals and themselves rom demands or compensation
or atrocities. Ex-Mau Mau were given no preerential treatment in access to land
and jobs.56
60. The ex-Mau Mau ghters were thus short-changed ater independence. Even
when the settlement schemes were initiated between 1963 and 1967, the
Maasai who sufered the most got nothing and the Kalenjin received small areas
around Sotik and Nandi. The squatters were not any better in their continued
demand or cultivatable land across the highlands. Those living in the ormer
White Highlands were evicted. In the majority o the settlement schemes in
Nakuru and Nyandarua, the existing squatters were simply removed by orce,
with new claimants chosen to occupy the plots. The situation o the landless
did not improve with the sale o larger arms under the ‘willing buyer, willing
seller’ model. A decade ater the implementation, one sixth o the settler lands
were ound to have been sold intact to the emerging Arican elite comprising
Kenyatta, his wie, children and close associates. These elites did not even need
much money to buy settler arms, as they were also able to raise loans rom
government bodies such as the Agricultural Finance Corporation (AFC) and
the Land and Agriculture Bank.57
54 M Patrick The Land Question and the Mau Mau today (2005) IFRA: Kenya Studies, IFRA ~ Les Cahiers, N° 28 55 The Times, 19th December 1963 56 Hornsby Charles (2012: 117) Kenya: A History Since Independence. London I. B. Tauris 57 As above.
20
Shita War
61. Ater dealing with the Mau Mau issue, the next issue that the emergent
ragile state had to deal with was the Shita War. Beore independence, the
Somali had maintained a constant attack on police posts and army camps in
Somali-inhabited regions. Two days ater independence, the Somalia staged
ve more incursions, orcing the government to declare a state o emergency
on 25 December 1963. The government became convinced that Somalia was
training and providing bases or up to 2,000 shita (bandit) guerrillas. While the
shita used guerrilla tactics, including hit-and-run attacks and mining o roads,
the Kenya government adopted British counter-insurgency techniques used
during the Mau Mau uprising, including the establishment o collective villages
surrounded by barbed wire and guarded by troops. There were widespread
beatings and killings o civilians and mass conscation o livestock. As with
the Kikuyu in 1953 to 1955, every Somali was seen as a potential shita and
treated accordingly, although, there was no equivalent o the detention camp
pipeline, and the loyalists were not so well rewarded.
62. The government used its ability to detain without trial anyone it believed
to be helping the shita. No oicial death igures were published or the
conlict, which received little international attention. The conlict established
patterns o suspicion and hostility between ethnic Somali and other Kenyans
that has endured or decades. Development in the colonial era in North
Eastern where the Somali live had been non-existent and this changed little
ater independence. The state treated the Kenyan Somali as subjects rather
than citizens and the region as a military-ruled colony.
Consolidation o power
63. On 24 January 1964, there was a strike by several hundreds o soldiers o
the Kenya Riles 11th Battalion, based in Lanet near Nakuru. The mutineers
were driven by disgruntlement over pay, working conditions, and ear o
their uture under the KANU government which held on to British expatriate
oicers. With increasing internal tensions and external threats, the Kenyatta
regime became even more repressive ater the January 1964 mutiny. With no
reerence to the cabinet, Kenyatta appealed or and received the support o
the British Army units to restore order without signiicant bloodshed.
64. But to make an example to mutineers, 43 soldiers were court-martialed, and
the military court jailed 16 ring leaders or a total o 197 years. To consolidate
power, the Kenyatta regime supported constitutional amendments between
1964 and 1969 whose objective were to destroy democratic institutions while
21
protecting the KANU-led government and the interests o the comprador
class.58
The Constitution o Kenya (Amendment) Act No. 14 o 1965
This Amendment Act reduced the threshold or amending the Constitution rom 90
percent to 65 percent in Senate and 75 percent to 65 percent in the National Assembly.
It also increased the days within which Parliament should approve a state o emergency
rom 7 to 21 days. Importantly, it reduced the threshold or approval o state o
emergency rom 65 percent to a simple majority
The Amendment Act introduced the rule that a Member o Parliament would lose his
seat in Parliament i he missed 8 sittings or was imprisoned or a period o over six
months. This amendment was intended to deal with KANU ‘rebels’ and those who had
joined KPU. The amendment also increased the President’s powers to rule by decree in
North Eastern Province.
The Constitution o Kenya (Amendment) (No. 2) Act No. 17 o 1966 (Turn Coat Rule)
Under this Amendment Act, a Member o Parliament would by law lose his parliamentary
seat o he deected to another political party. The amendment was meant to deal with
Members o Parliament who had deected rom KANU to KPU.
The Constitution o Kenya (Amendment) (No. 3) Act No. 18 o 1966
This Amendment Act increased the period or National Assembly’s review o emergency
orders rom 2 to 8 months. It permitted greater and wider derogation powers o
undamental rights and reedoms. It also removed the provision calling or reasonable
justication or such derogations. This amendment was intended to allow or detention
o KPU members who had deected rom KANU.
This Amendment Act was intended to clear doubt over section 42A which spelt out the
Turn Coat Rule. It backdated the efect o the Fith Amendment to 1963.
The Constitution o Kenya (Amendment) (No. 2) Act No. 16 o 1968
Under this Amendment Act, independent candidates were barred rom participating in
elections. The amendment also removed parliamentary approval or state o emergency
declaration.
This amendment Act consolidated all the constitutional amendments as at February
1969 thereby resulting in a revised Constitution o Kenya in a single document which
was declared to be the authentic document.
58 For details see: Samwel Alfayo Nyanchoga et al (2008) Constitutionalism and Democratisation in Kenya, 1945- 2007. Catholic
University of Eastern Africa
65. The polarization o the country between the radicals and the conservatives
continued to remain a threat which Kenyatta had to handle. The rst attempt
to deal with this situation was the development o Sessional Paper Number 10
o 1965, which was a mix o the socialist and capitalist models, rejecting both
Marxism and laissez-aire capitalism, and stressing Arican traditions, equity and
social justice. Kenyatta made it clear in his introduction to the paper that the
intent was not to stimulate discussions on Kenya’s economic policy, but to end
it. However, Oginga Odinga and his camp instructed Pio Gama Pinto to prepare
a competing paper to mobilize or the rejection o the government sessional
paper. But beore Pinto could prepare the parallel paper, he was murdered on
24 February 1965 outside his home in Nairobi by people believed to have been
auxiliaries loyal to Kenyatta. The killing o Pinto marked the process o political
assassinations under the Kenyatta regime.
66. The year 1966, marked the turning point in Kenya’s political history and
witnessed the introduction o the motion o condence in the president by Tom
Mboya without the knowledge o Oginga Odinga, who was then the leader
o government business. The year also saw the holding o the KANU National
Delegates Conerence in Limuru, which created a new position o eight new
provincial vice-presidents. These actions orced Odinga and his supporters to
pursue the constitutional opposition by orming a political party, the Kenya
Peoples Union (KPU). On 14 April 1966, Odinga resigned as vice-president and
together with his supporters joined KPU. In his resignation statement, Odinga
argued that he reused to be part o a government “ruled by underground
masters serving oreign interests”, and accused the Limuru Conerence o being
rigged in avour o Kenyatta and his allies. The Kenyatta regime also passed the
Preservation o Public Security Act in 1966, which provided the state with wide
powers or detention without trial and allowed control o ree movement, the
imposition o curews and press censorship. The Act was used efectively rom
1966 to 1968 in dealing with those perceived to be critical o the Kenyatta regime,
particularly in the jailing without trial o Odinga and KPU supporters.
67. Next was the assassination o Tom Mboya on 5 July 1969 in the current Moi
Avenue.59 As with Pinto’s death, the apparent culprit was a petty crook with
connections to the intelligence service who was charged with the murder on 21
July the same year. Facing a revolt rom the Luo and the growing support or
change among many Kenyans horried by Mboya’s assassination, Kenyatta’s
closest allies reverted to their ethnic bailiwicks, through oathing to orce Kikuyu
voters to return sitting members o parliament in the election.
68. KPU MP Okelo-Odongo claimed that those being oathed were stripped naked,
tied with a rope around their neck and orced to swear to ght the Luo and not
59 Other prominent leaders and academicians who died in politically controversial circumstances included but were not limited to
Argwings Kodhek (1969) and Ronald Ngala (1972)
23
to allow any other tribe to lead Kenya.60 The worst came on the 25 October
1969, when Kenyatta visited Kisumu to open the Russia-built Nyanza Provincial
General Hospital. The opening o this health acility coincided with the Kisumu
District sports day, with a huge number o students attending. Odinga was not
invited, but he and his supporters came in orce shouting Dume (Bull, the party
symbol o KPU).
69. In the ensuing commotion, a ull-scale riot erupted, the presidential escort
and the dreaded crack paramilitary General Service Unit (GSU surrounded
the president, shot their way through the threatening crowd and continued
shooting 25 kilometres outside the town. When the dust settled, the ‘Kisumu
Massacre’ o 1969 was complete, with many shot dead, including school pupils,
by the presidential security. Virtually all the lms o the incident was seized
and destroyed. Odinga and his supporters were arrested and detained without
trial and KPU, the party associated with Odinga was banned. A curew was
imposed in Central Nyanza and Siaya and hundreds were arrested.
70. Although KPU was banned and its leaders arrested, ater 1969 Kenyatta’s
legitimacy and that o his government was still being questioned by let-
wing politicians. Kenyatta himsel became more intolerant o dissent and the
centralization o power around him encouraged sycophancy, exploitation
and the creation the so-labeled ’Kiambu Maa‘ Josiah Mwangi Kariuki was
the government’s most inuential critic between 1970 and 1974. ‘J.M’ Kariuki
catalysed the wishes o the poor, landless and those unhappy with the direction
that Kenya was taking. It was Kariuki who coined the phrase “we do not want …
a Kenya o ten millionaires and ten million beggars”. He was also at the oreront
o the ght against corruption and the social policies o the government. As
assistant minister or tourism and wildlie, he was probably involved in revelations
about poaching and ivory smuggling.61
71. Under a state orchestrated ear on 3 March 1975, Maasai herdsmen discovered
JM’s tortured and mutilated corpse on the slopes o Ngong Hills near Nairobi.
His ngers had been cut of and his eyes gouged out beore he was shot. The
killers had burnt his ace with acid to prevent identication o the body and his
ngerprints were gone. JM’s death also joined the long list o unresolved political
assassinations during the Kenyatta era. To respond to Kariuki’s murder and to
rebuild his authority, the Kenyatta regime continued arresting and jailing those
he labelled troublesome MPs such Jean Marie Seroney, Martin Shikuku, Chelagat
Mutai, Peter Kibisu, Mark Mwithaga and George Anyona on dubious grounds
even within the precincts o Parliament Buildings. As Kenyatta departed rom
the political scene with his death in Mombasa in August 1978, he let a handul
o unaddressed issues including: corruption, tribalism, state orchestrated
repression, political assassinations, and land distribution policies.
60 Okelo- Odongo East Africa Standard 12 August 1969.
61 For details see Daniel Branch Kenya: Between Hope and Despair, 1963-2011 (2011)
24
President Daniel Arap Moi’s Era
Following in Kenyatta’s ootsteps
72. Daniel arap Moi assumed the presidency ater Kenyatta’s death in 1978.
On assuming power, President Moi promised that he would ollow in Jomo
Kenyatta’s ootsteps. In December 1978, President Moi released all the 26 political
detainees across the ethnic spectrum, most o whom had been languishing
in jail or years (Shikuku, Seroney, Anyona, Koigi wa Wamwere, and Ngugi wa
Thiong’o). He also reassured Kenyans that his administration would not condone
drunkenness, tribalism, corruption and smuggling – problems which were
already deeply entrenched in Kenya under President Kenyatta’s administration.
This was partly a strategy geared towards the achievement o specic objectives,
namely, the control o the state, the consolidation o power, the legitimisation
o his leadership and the broadening o his political base and popular support.62
President Moi was well aware o his own underlying problems, especially the act
that he was rom a minority community. Leading the country to independence
had brought President Kenyatta economic opportunities that had permitted
him to rule over a period o prosperity.63
73. President Moi’s rst priority was to secure his position and to weaken not only
his most vocierous Kikuyu opponents, but also those he perceived to be critics
o his regime. To achieve his objective, President Moi under the cover o an
anti-corruption crusade, systematically started replacing President Kenyatta’s
courtiers with his own to topple the Kikuyu ascendancy. Like his predecessor,
he also resorted used the law to consolidate his power.
74. To bolster his grip on power, President Moi also embarked on the gradual
‘Kalenjinisation’ o the public and private sectors rom the 1980s. President Moi is a
Tugen, one o the smaller Kalenjin ethnic groups. He began to "de -Kikuyunize" the
civil service and the state- owned enterprises previously dominated by the Kikuyu
ethnic group during President Kenyatta's administration. He appointed the Kalenjin
to key posts in, among others, the Agricultural Development Corporation (ADC),
Kenya Commercial Bank (KCB), Kenya Posts and Telecommunications Corporation
(KPTC), Central Bank o Kenya (CBK), Kenya Industrial Estates (KIE), National Cereals
and Produce Board (NCPB), Nyayo Tea Zones (NTZ), Nyayo Bus Company (NBC),
Nyayo Tea Zones Development Corporation (NTZDC) and the Kenya Grain Growers
Cooperative Union (KGGCU).64 This process marked the rise o the Kalenjin elite,
who strategically positioned themselves to benet rom state resources.
62 Korwa G. Adar and Isaac M. Munyae ‘Human Rights Abuse in Kenya under Daniel arap Moi 1978-2001’ (2001) 5 African Studies
Quarterly 1.
63 Hornsby Charles Kenya: A History Since Independence (2012) 334.
64 Ibid
Constitutional amendments
75. President Moi’s government sponsored a series o constitutional amendments in a
bid to consolidate power in the presidency. The Constitution o Kenya (Amendment)
Act No. 7 o 1982 introduced Section 2(A) which had the eect o transorming
the country into a de jure one-party state. Moreover, Parliament reinstated the
detention laws which had been suspended in 1978. The application o a number
o laws had the eect o denying citizens’ enjoyment o human rights. These laws
included the Chie's Authority Act, the Public Order Act, the Preservation o Public
Security Act, the Public Order Act, and the Penal Code. The parliamentary privilege,
which gave representatives the right to obtain inormation rom the Oce o the
President, was also revoked. Parliamentary supremacy became subordinated to
the presidency and the ruling KANU party.65
76. Moreover, the provincial administration became highly politicized and provincial
administrators wielded wide discretionary powers. In 1981, President Moi banned
all ethnic-centred welare associations. The president also outlawed the civil
servants union and the university academic staf union.
Selected Constitutional amendments, 1982 -1991
The Constitution o Kenya (Amendment) Act No 7 o 1982
This Amendment Act introduced Section 2A that changed Kenya rom a de acto to de
jure one party state. It also abolished the Turn Coat Rule.
This Amendment Act removed security o tenure o the Attorney General and Auditor
and Controller General
This Amendment Act made all capital ofences non-bailable
This Amendment Act made it lawul to detain capital ofenders or 14 days beore they
could be ormally charged in a court o law. It also removed the security o tenure o
constitutional oce holders
The Constitution o Kenya (Amendment) Act 1990
This Amendment Act reinstated the security o tenure o constitutional oce holders
This Amendment Act repealed Section 2A o the Constitution hence bringing an end
to the de jure one-party rule in Kenya. It also reintroduced the Turn Coat Rule. The
nomination procedure leading to elections o the National Assembly and Presidency
were amended to accommodate multi-party system o governance.
65 Weekly Review, Nairobi, 8 May 1987. See also, Ogot, B. A., "Politics of Populism", pp. 187-213, in Ogot and Ochieng,
op. cit., 187-213.
Attempted Coup and the atermath
77. On 1 August 1982 there was a military coup attempt by Kenya Air Force (KAF)
ocers. The attempted coup was however brutally quashed by Kenya Army ocers
who were loyal to President Moi. It was put down at an estimated cost o 600 to
1,800 lives lost in addition to other human rights abuses, including arbitrary arrests,
detention and torture. The c