TJRC Report Volume 2A

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RECONCILIA

TION COMMISSION

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RECONCILIATION COMMISSION

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of 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 for noncommercial educational or public policy purposes. Photographs may not be used separately from the publication.

Published by Truth Justice and Reconciliation Commission (TJRC), Kenya

ISBN: 978-9966-1730-3-4

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Nairobi

3 May 2013

LETTER OF TRANSMITTAL

By Gazette Notice No. 8737 of 22 July 2009 and pursuant to section 10 of the Truth, Justice and Reconciliation Act No. 6 of 2008, the undersigned were appointed to be Commissioners of the Truth, Justice and Reconciliation Commission. The Commission was established with the objective of promoting peace, justice, national unity, healing, reconciliation and dignity among the people of Kenya. Having concluded our operations, and pursuant to section 48 of the Truth, Justice and Reconciliation Act, we have the honour to submit to you the Report of our findings and recommendations.

Please accept, Your Excellency, the assurances of our highest consideration.

Amb. Bethuel Kiplagat

Chairperson

Tecla Namachanja Wanjala

(Vice Chairperson)

Judge Gertrude Chawatama

Amb. Berhanu Dinka

Maj. Gen (Rtd) Ahmed Sheikh Farah Prof. Tom Ojienda

Margaret Shava

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Foreword

This Volume focuses on the major violations of bodily integrity rights that were committed during the Commission’s mandate period. While most of the violations in this volume are traditionally defined to require state action – extra judicial killings, enforced disappearances, detention, torture – the Commission adopted a more expansive view of these violations. This was for four reasons. First, while as a matter of law the distinction between state and non-state action is important with respect to many of these violations, many victims are less concerned about the official status of those who wronged them, and more with identifying those individuals and addressing the consequences of the harm they suffered.

Second, if the Commission were to strictly define these violations as requiring state action, the experience and narratives of many victims would be lost. This would diminish the ability of the Commission to provide an accurate, complete and historical record of gross violations of human rights committed during the mandate period.

Third, while some of the violations described in this volume were not directly committed by state officials, the failure of the state to provide adequate security to many of its citizens provided an opportunity for such violations to occur. In seeking to understand the circumstances, factors and causes of violations committed by militias and other non-state actors, the Commission was inevitably drawn to an analysis of non-state inaction, and in particular the failure of 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 of law, but rather a body dedicated to describing and explaining historical injustices and gross violations of human rights. While accountability is part of the Commission’s mandate, justice is one of three equally important pillars, the other two being truth and reconciliation. In interpreting its mandate, therefore, the Commission was sensitive to furthering the fulfilment of each of the three pillars, and not giving undue weight to any one over the other two.

While much of this volume is focused on violations directly committed by the state, it also includes descriptions of killings, severe injury and violence, sexual violence, detention, and other similar violations committed by non-state actors.

The volume starts with a general overview of the political history of Kenya. This chapter provides the overall political context for understanding not only the other specific

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violations in this chapter, but also the violations and other materials in the rest of the report. Because the political history focuses heavily on the state and its development, we include it here in the volume that focuses most on some of the worst violations committed by the state.

In the chapter on political history we also, as in other parts of the report, discuss some of the practices and violations of the colonial government. While the Commission’s temporal mandate formally commenced at independence, the Act also required us to describe and analyze the ‘antecedents, circumstances, factors and context’ of violations committed during the mandate period. There is no question that in order to understand, for example, the newly independent government’s reaction to the Shifta War (not to mention injustices related to land, state abuse of power, corruption, and many of the other violations discussed in this Report), one needs to understand the policies and actions of 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 of the history of the state security agencies. While other agencies of the state were responsible for historical injustices and gross violations of human rights during the mandate period (see e.g. Volume 2B which focuses on land, economic crimes, violations of socio-economic rights, and corruption), the security agencies were both primarily responsible for many of the acts of commission discussed in this volume, as well as the acts of omission (the failure to provide security) that allowed many of the violations committed by non-state actors to occur.

The next chapter focuses on the major armed conflict (in this case a non-international armed conflict) within the Commission’s mandate, the Shifta War. As the defining moment of the independence of the nation, the Shifta War acts as a bridge from the violations committed by the colonial power prior to independence and the violations committed by the newly independent government. The Shifta War had a profound impact on the early development of the state, the effects of which are still being felt today, not least by the survivors and their descendants in the north eastern part of the country.

The remaining chapters are organized by class of violations. Unlawful killings and enforced disappearances are divided into three separate parts: massacres, political assassinations, and extra judicial killings. Detention, torture and ill treatment were unfortunately present during all periods of Kenyan history. While the infamous Nyayo House torture chamber is often the first thing that one thinks of 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

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describes a particular form of 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 of the use of sexual violence as a systematic tool of oppression and armed conflict. Sexual violence was prevalent during the colonial period, and unfortunately continued unabated through independence to the present day.

Investigations related to some of the events in this chapter – e.g. the Wagalla Massacre; the assassinations of, among others, Tom Mboya, J.M. Kariuki, and Robert Ouko – are some of the most anticipated by many Kenyans. The report of the Task Force reported the high interest in providing truth and justice with respect to these violations, and the experience of the Commission was the same. The Commission was able to unearth some new information regarding some of these events. But there is no question that the Commission was unable to provide clear answers to all of the questions raised about these injustices. A major cause of this inability was the difficulty the Commission faced in securing documents and the cooperation of witnesses and other interested parties with respect to these events. It is our hope that the information provided here will re-emphasize the importance of the government coming clean and releasing all of the information within its possession with respect to these and other historical injustices.

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List of Abbreviations

ADC Agricultural Development Consult

AFC African Finance Corporation AP Administrative Police ADCU Air Defence Control Unit ASTU Anti- Stock Theft Unit

AMREF African Medical and Research Foundation BBC British Broadcasting Corporation CBK Central Bank of Kenya

CJPC Catholic Justice and Peace Commission CEO Chief Executive Officer

CEDAW Convention on the Elimination of All Forms of Discrimination Against Women

CID Criminal Investigation Department CMS Church Missionary Society

COVAW Coalition of Violence against Women CAT Convention against Torture and other Cruel,

Inhuman or Degrading Treatment DSC District Security Committee DNA Deoxyribonucleic Acid DO District Officer

DSBO District Special Branch Officer DTM December Twelfth Movement EAR East African Rifles

EATC East Africa Transport Corps FAO Food and Agricultural Organitzation FERA February 18 Revolution Army FEM February Eighteenth Movement FGM Female Genital Mutilation GSU General Service Unit

GVRC Gender Violence Recovery Centre

ICTY International Criminal Tribunal for the former Yugoslavia

IBEAC Imperial British East Africa Company IMLU Independent Medico-Legal Unit ILO International Labour Organization IDPs Internally Displaced Persons KAR King’s African Rifles

KR Kenya Rifles

KANU Kenya African National Union KDF Kenya Defence Forces KPU Kenya Peoples Union KCB Kenya Commercial Bank KADU Kenya African Democratic Union KGGCU Kenya Grain Growers Cooperative Union KPTC Kenya Posts and Telecommunications

Corporation KAF Kenya Air Force

KHRC Kenya Human Rights Commission KNHRC Kenya National Human Rights Commission KNH Kenyatta National Hospital

KMC Kenya Meat Commission KBC Kenya Broadcasting Corporation KWS Kenya Wildlife Service

KIC Kenya Intelligence Committee KDHS Kenya Demographic and Health Survey KPLC Kenya Power and Lighting Company KNUT Kenya National Union of Teachers MoU Memorandum of Understanding MoH Ministry of Health

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MP Member of Parliament

NCPB National Cereals and Produce Board NFD Northern Frontier District

NTZ Nyayo Tea Zones

NBC Nyayo Bus Company

NTZDC Nyayo Tea Zones Development Corporation NARC National Alliance Rainbow Coalition NPPPP Northern province People’s Progressive Party NFDLA Northern Frontier District Liberation Army NSC National Security Council

NSIS National Security intelligence Service NEP North Eastern Province

OLF Oromo Liberation Force ODM Orange Democratic Movement OCS Officer Commanding Station OCPD Officer Commanding Police Division

OB Occurrence Book

PPSA Preservation of Public Security Act PSBO Provincial Special Branch Officer PPO Provincial Police Officer

PCIO Provincial Criminal Investigations Officer

PNU Party of National Unity PRCT People for Rural Change Trust PEV Post Election Violence PC Provincial Commissioner PSC Provincial Security Committee RHA Royal Horse Artillery

SDO Special District Ordinance SLDF Sabaot Lands Defence Force SSAs State Security Agents SYL Somali Youth League SOA Sexual Offences Act

TJRC Truth Justice and Reconciliation Commission UAE United Arab Emirates

UNDP United Nations Development Programme UNESCO United Nations Educational, Scientific and

Cultural Organization UPI United Press International

UN United Nations

VOK Voice of Kenya

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ONE

Historical Context:

A General Overview

Introduction

1. On the eve of Kenya’s Independence Day, the Duke of Edinburgh said the following to a people that about to become free citizens of a new African nation:

Tomorrow a new volume will be opened and an independent Kenya will start to write a new story. The pages of this volume are still blank and empty; the story that is to be written on them is still in the hands and minds of all the people of 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 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. It is mainly this sad part of Kenya’s story that the Truth, Justice and Reconciliation Commission was tasked to examine and document.

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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 of the dynamics and factors that nurtured an environment under which these violations and injustices thrived. The overview is presented in a chronological order beginning from 1895 when the Kenyan state was created to 2008 when it was at the edge of disintegration.

4. For analytical purposes, the historical period has been divided into four distinct epochs. These epochs correspond with the four 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 focus of this Chapter is limited to describing and explaining key events in the political realm during these four epochs. As such, it does not describe any particular violations and injustices in great detail. Comprehensive descriptions of such violations and injustices are covered in subsequent chapters and volumes of the Report.

6. In analysing these key events and their historical perspective, it is argued that the violence generated in the context of colonialism was perpetuated in the post-colonial period through unaltered post-colonial structures, institutions and mentalities. Thus Kenya’s relatively long history of 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.

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British Colonial Era

7. The creation of modern day Kenya dates back to 1885 when European imperial powers assembled in Berlin, Germany, to partition Africa among themselves. At the Berlin conference where these powers met, it was resolved that those interested in Africa would declare their spheres of influence then follow such declaration with effective control of the new territories. What followed was the partition of Africa, with little knowledge of the continent, especially its hinterlands. In the end, some roughly 10,000 African polities were amalgamated into 40 European colonies and protectorates. These colonies and protectorates would later provide the basis for the modern nation-states of Africa including Kenya. Some African societies with a lot in common were rent apart while others with nothing or little networks were fused together

8. To establish and consolidate their rule in Kenya, the British employed violence on a locally unprecedented scale and with unprecedented singleness of 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 fight for political and economic self-determination.

9. The British, having earmarked Kenya for control, moved with speed to implement the Berlin resolution. Within two years, the British East African Protectorate (where most of the present Kenya falls) had been declared. Henceforth, most laws applicable in England and its hinter territories such as India would be exerted in the so-called ’protectorate’.

Rule by proxy: Imperial British East Africa Company

10. Initially, the British chose to administer its newly-acquired territory through a proxy: the Imperial British East Africa Company (IBEAC). The IBEAC was granted a charter in 1888 to administer and develop the territory as it saw fit. It used this authority to exploit natural resources such as ivory. The charter was exclusive but the company faced numerous challenges in establishing its authority in Kenya. Its agents have been described as ‘alcoholics’ who failed to establish working relationships with the local populations with whom they were supposed to trade.2_{Moreover, the IBEAC lacked the finances to develop infrastructure and}

was therefore unable to make the investments necessary to properly advance its East African presence.

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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 further stimulate commerce in the region. Neither of these projects succeeded. Indeed the failure of these projects, coupled with high profile 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 1July 1895. Administrative control of the territory passed from the IBEAC to the British Foreign Office. In effect, Kenya became a British protectorate.

From British Protectorate to British Colony

12. The declaration of Kenya as a British protectorate was primarily a diplomatic gesture, aimed at the Sultan of Zanzibar, Germany, Italy and Ethiopia. It was a declaration of exclusion of these powers from this political space that ran from Jubaland to Lake Naivasha.3_{This ‘diplomatic gesture’ proved a major obstacle to}

the British settlers and the British Colonial Office in their attempts to secure cheap loans under the Colonial Stock Act of 1900 for the development of the protectorate. The Colonial Stock Act of 1900 only benefitted British colonies and dominions and not protectorates.4_{The crown agents, therefore, advised the colonial office to look}

into ways to change the status of the protectorate to a colony.

13. It was this desire to change the status of the protectorate to a colony that exposed the intricate political arrangement of the territory. It became clear that the incorporation of the 10-mile coastal strip into the colony would arouse international conflicts from other countries that had entered into trading agreements with the Sultan of Zanzibar.

14. The sultanate of Zanzibar for instance had signed treaties with various states: United States of America in 1833, France in 1862, and Germany in 1886. These treaties recognized the sovereignty of the Sultan. Of particular importance was the 1886 Anglo-Germany treaty which internationally recognized the 10-mile coastal strip as the rightful dominion of the sultanate of Zanzibar.5_{As a result of}

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.

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was the child of His Majesty’s government and was always ready loyally to carry out its wishes. If His Majesty’s government considered the alienation desirable, he was quite prepared to agree to it.6

15. Thus, in July 1920, the territory of the East Africa Protectorate was annexed to the British Crown under the new name Kenya Colony. From then onwards, the former protectorate became the Kenya Colony. The British colonialists imposed the state structure on collections of ethno-political communities in Kenya that historically lacked the inter-communal coherence. The communities which lived independently from each other were forced 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 fault line of ethnic socio-political mobilization and conflict till today.

Resistance and military expeditions

16. The conquest of state and territory for British settlement and exploitation in Kenya was achieved through colonial violence.8_{To force Africans 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 peaceful methods of expansion discovered that the majority of the African people were not willing to forgo their independence without some military show.9_{Sir Arthur}

Hardinge, the first protectorate commissioner, could even remark: ‘These people must learn submission by bullets - it’s the only school; after that you may begin more modern and humane methods of education’.10_{The aftermath}

of such violence was destruction of 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 6th_{to August 6}th

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.

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18. Having been appointed as the first commissioner, Sir Hardinge later realized the need to convert the external, costly and destructive force of conquest into internal, negotiable and productive power.11_{In order to set up an administrative}

and judicial system, Hardinge fell 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 froze cultural development and population mobility at a certain point in time, thus fossilizing situations which had been fluid.12_{But more importantly, the administrative creativity of Hobley}

witnessed the planting of seeds for ethnic hatred as communities started to establish ownership of their territories to the exclusion of others. Hardinge:

had low opinion of the Africans, whom he regarded as barbarous races and he therefore hoped to rely on the Arabs and to a lesser extent, the Swahili people … who according to him were a civilizing influence for local administration. The process of dividing the Kenyan people into primitive tribes and civilized tribes had begun … and intensified 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 of the Africans. His first task was to consolidate British control within the protectorate and to formulate administrative policies and structures suitable for white settlers. Unlike his predecessor, his actions witnessed not only grave injustices against Africans, but also widespread fighting between different African ‘tribes’ in the second half of the 19th Century. The tribal units thus created and defined were encased in district boundaries, but many of these classifications 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 Africans themselves to safeguard the interest and welfare of smaller units against possible domination by the larger groups’. This kind of balancing action has tended to intensify ethnic chauvinism and the struggle for the capture of the post-colonial state14_.

20. On the ground, the British sought to establish alliances and loyalties of Africans. In so doing, the British sought to manipulate, subvert and at times circumvent the existing indigenous systems of 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.

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‘the politics of this time were at one level the politics of conquest, but the more enduring heritage was the politics of manipulation’.15_{Such were evident as the}

British manipulated leaders of the Maasai namely Olonona, Ole Galisha, and Ole Masikonti. The British too manipulated the power equation in Luhya land by inventing empires for Mumia in Wanga and for Sudi Namachanja in Bukusu. This was followed by imposition of new leaders such as Karuri wa Gakure and Kinyanjui wa Gathirimu among the Kikuyu. In the coastal region, the Sultan of Zanzibar was manipulated by Sir Edward Northey and the British residents in Zanzibar to allow annexation of his 10-mile coastal strip to be part of the new colony.16

21. Practically everywhere in Kenya, as was the case in the rest of Africa, the imposition of colonial rule was resisted. Such resistance inevitably provoked military retaliation from 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 of pacification of ‘recalcitrant tribes’ fighting for the preservation of their political, cultural and economic independence.17_{The period was thus characterized by}

an unimaginable degree of human rights abuses against defenceless Africans. The military expeditions were accompanied by crimes such as theft, rape, death and destruction of property by the colonial soldiers or their associates. Such actions defy the view that the British colonialist used humane and gentle methods to impose their rule in Kenya.18

22. Examples abound of how the British used brutal force to impose its rule. On the Kenya coast, Swahili chiefs like Mbaruk were famous for resisting alien rule. When the British took over Kenya, the Mazrui chiefs 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 far more powerful and better armed than they. So they concentrated on fighting limited engagements and making lightning attacks, and they sustained a fairly successful resistance movement for some time. But the British were in Kenya to stay. They therefore imported Baluchistan regiments from India to crush the African resisters.19_{Mbaruk, the leader of the resistance, fled to}

Tanzania, only to fall 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.

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23. He and four other leaders died in exile.20_{The same fate befell the Ogaden Somali in 1889,}

when they too attempted to resist British rule. Their opposition to British colonialism forced 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 of Indian regiments in 1889. Ogaden resisters were smashed and hundreds of their cattle confiscated by the British.21_{Similarly, while}

forcing the Taita to submission, Captain Robert H. Nelson remarked:

In a few minutes the men cleared out, leaving some fifteen dead on the spot and I have no doubt that a good many received fatal wounds. I then marched on to the village of the men who had been fighting 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 of 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 of the Kisii revolt, a detachment of a hundred African Police under Robert Foran and a company of the Third King’s African Rifles (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. Before then … they left several hundreds dead and wounded spearsmen heaped up outside the square of bayonets. This was not so much a battle as a massacre, but wholly unavoidable under the circumstances. It was an urgent case of 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 of the relief patrols headed by Foran sent to Northcote’s aid explained that ‘… the African Rifles were putting in some strenuous work – burning villages, devastating standing crops, capturing livestock and hunting down the bolting warriors’24_{A series of telegrams conveyed the results}

of the expeditions to the colonial office in London. On 1 February 1908, a telegram received by the colonial office read in part: ‘Result of 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.

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cattle captured 5,636 sheep and goats 3,281 and 100 Kisii killed’. Two days later another telegram reported the number of Kisii dead had risen to 160.25

Manipulations

27. The British colonialists’ injustices against the people of Kenya were not only limited to the 1895-1914 military expeditions. British administrators and functionaries used manipulation, colonial laws and policies, and continued to use violence and harassment to appropriate both human and natural resources from Kenya throughout the colonial period.

28. Manipulations were more evident in the signing of treaties involving British administrators and African leaders to create frontiers for European settlers from Britain, Canada, South Africa, Australia and New Zealand. One such ‘treaty’ which easily comes to mind was the first and the second Maasai Treaty of 1904 and 1911. The first treaty, signed without the knowledge of 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 of the Rift, Zedong and Gong. But even this grave injustice committed against the Maasai by the colonial government did not satisfy the appetite of the white settlers for 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 of reservation for the new tribe continued throughout the colonial period. As such, attempts to further alienate Maasai land during the post-colonial period engendered strong ethnic feeling among the people.26

29. It was not only the Maasai who suffered colonial manipulations, the same was the case in the Kiambu-Thika area from 1903 to 1908, central Rift Valley 1904 to 1914, and lastly in the Kericho to Nyeri/Nanyuki areas through the soldier settlement schemes following the First World War. This last scheme left 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.

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Chiefs and forced labour

30. British officials, with African submission to their authority after pacification, were pressed by the reluctant metropolitan taxpayers to find means of making the colonial territories self-financing. They achieved this through the creation of the office of the chief as agents of local administration and tasked them with the responsibility for tax collection, maintenance of law and order and more importantly to supply cheap labour for public and settler requirements. It was the assignment of these tasks which put the colonial chiefs at the forefront in the abuse of human rights.

31. During the mobilization of labour for Europeans, chiefs were empowered by a series of labour laws to call out any number of able-bodied persons to labour without pay on public works28_{. This mandate was extended at the outbreak of}

World War 1 to finding able-bodied manpower for the First World War, a war that caused the death of over 50,000 Africans and left thousands more wounded. Astonishingly, most Africans who were recruited into the war had very limited understanding of why the Europeans were fighting. In 1919 the Northey Circular spelt out its extension to embrace the directive on African labourers to work for settlers at very low wages. These aspects of chief authority were backed by force. Chiefs had retainers who in the process of tax collection, punitively confiscated peoples’ animals and produce, seized their women and routinely whipped the young men.29_{Such coercive chiefly authority, supervised and approved by the}

district commissioners, brought in the intense hatred of the system, even in the post-colonial period.

32. In his 1936 report on Kenya’s finances, Sir Alan Pim identified two potential opportunities for corruption - the counting of huts for hut tax, and the enforcement of tax payment by chiefs. The hut counters responsible for determining tax liability were, certainly not of a type likely to be exempt from the temptation to make a little money; they used both influence and bribery to exempt some who were required to pay and to extort taxes from those who were not. Additionally, due to limited staffing at the district level, collection was largely enforced by employing the services of the chiefs or headmen with their various satellites. This unavoidably gave opportunities for the abuse of authority, either in the direction of using improper means to enforce payment, or in connection with applications for exemption.

28 Ochieng’ William A History of Kenya. Nairobi (1985) 16. 29 Atieno-Odhiambo (n 3 above) 8

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Land alienation

33. After the First World War, the colonial administration was keen at increasing the number of settlers, increasing settler land holding and boosting settler agriculture by providing them with good infrastructural services. Needless to say, the land alienated to the settlers was carved out of the most fertile regions, land which was inhabited by the Africans. Therefore, the main injustice on Africans after the First World War focused on land alienation and the creation of the African squatters, both in Central and the Rift Valley regions of colonial Kenya.

34. In enforcing this injustice, the colonial administration introduced the Crown Lands Ordinance of 1915,30_{which declared all ‘waste and unoccupied’ land in}

the protectorate ‘Crown Land’ subject to the governor’s powers of 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) of land had been taken away from Kenyan Africans, mostly from the Kikuyu, Maasai and Nandi communities. It created the reserves for ‘natives’ and located them away from areas scheduled for European settlement. These developments witnessed the creation of what Mamdani refers to as ‘citizen’ (settlers) and ‘subject’ (Africans) – a dual system of land tenure and land administration to consolidate colonial rule.32

35. Colonial appropriation of land and alienation of a large section of the African 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 of land. Thus, approximately 30,000 Kikuyu had lost land rights in Kiambu district alone. About half that number lost land rights in Murang'a and Nyeri districts. The total loss of land among the Kikuyu could therefore involve well over 45,000 people. Annual reports for the period indicate that there were 41,156 Africans in European-settled areas of Nakuru and Naivasha and these would seem to support our estimates, given that the majority of Africans in these areas were Kikuyu.33

36. Other ‘troublesome communities’, like the Talai, were in 1934 forcibly evicted from Kericho/Nandi areas on accusations of being extortionist and sent to open jails in Lambwe, a tsetse-flies infected 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.

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It was described as the ‘Valley of Death’ where 30 years earlier, 60 percent of Lambwe valley inhabitants had been killed by diseases.34

37. By 1945, there were about 203,000 people rendered squatters and labourers in European farms, with 101,000 Kikuyu as resident labourers on European farms and about 21,000 more employed mainly in the government’s department of forestry. A substantial number of Africans in the settled area were not enumerated in this labour census and the total number of 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 of Kikuyu recorded as living outside their ‘native reserves’ was more than 294,000 or nearly 29 percent of the total Kikuyu population. Some of them lived in towns or in other African reserves, but nearly all of them had been effectively uprooted by the process of alienation. They were outside their reserves in search of work and or new land as a means of subsistence.35

38. The creation of reserves in areas deemed unsuitable for European settlement had far-reaching implications, both for the natives and the colonial administration. Underlying them was a policy of exploitation and oppression against the colonized people accentuated by land alienation, forced male labour mobilization, overcrowding, insecurity, stagnation in African agricultural production, massive landlessness and rapid land deterioration due to fragmentation, 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 of foreign rule, land alienation and political and economic inequality.36

The colonial state’s answer to the unrest was to initiate an ambitious project of land tenure reform in the reserves that would serve as a bulwark against rural radicalism. The colonial agronomist’s thought about the individualization of land tenure was first 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 formulated by Roger Swynnerton in what was to be known as the 1954 Swynnerton Plan. The architect of this plan argued persuasively in support of individualization of tenure in Kenya as a pre-condition for 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.

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Mau Mau War

40. The Mau Mau war, from 1952 to 1955, marked the climax of African 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 of 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 of Kikuyu militants against Kikuyu loyalists, thereby turning Mau Mau insurgency into civil war. The turning point came on the night of 26 March 1953, at Lari, which was the site of two successive massacres, the first 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 fire, hacking down with pangas anyone who attempted escape, before throwing them back into the burning huts. The vast majority of 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 itself, but increasingly those they perceived as local beneficiaries of 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 of Michael Gerard Sullivan, the colonial officer in-charge of Hola camp to the commission investigating the death of the detainees revealed the firm instructions from Compell, the deputy commissioner of prisons, to torture the Mau Mau detainees by denying them drinking water for a number of hours, weeding rice fields with bare hands and use of 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 fire. Bottles (often 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 for military operations and as court evidence.

38 M Wunyabari Mau Mau and Kenya: An Analysis of a Peasant Revolt (1993).

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44. Between 150,000 and 320,000 Africans were detained for varying lengths of time in more than 50 detention and work camps. The treatment in the camps, staffed by little trained non-Kikuyu, loyalists and European settlers, was often brutal. The information about what was happening there was carefully controlled and the colonial office and the governor systematically denied reports of mistreatment. Elkins’ extended descriptions of the regime of torture, one is struck by its predominantly sexual nature. Male detainees were often sexually abused ‘through sodomy with foreign objects, animals, and insects, cavity searches, the imposition of a filthy toilet bucket-system, or forced penetrative sex’. Women had ‘various foreign objects thrust into their vaginas, and their breasts squeezed and mutilated with pliers.’ Variations abounded, with sand, pepper, banana leaves, flower bottles (often 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 for mere beatings, but for castration. I have seen with my own eyes that Kongo Chuma whom I first met in Nakuru before 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 of soda water were opened and pushed into the uterus of some women to make them confess. Kongo said these things were done by the Africans but the European officers knew what was going on.40

45. The Mau Mau fighters were also responsible for unspeakable atrocities. Contrary to African customs and values, they assaulted old people, women and children. The horrors they practiced included decapitation and general mutilation of civilians, torture before murder, bodies bound up in sacks and dropped in wells, burning victims alive, gouging out of eyes and splitting open the stomachs of pregnant women41_{. Mau Mau officially ended with the capture and execution of Dedan}

Kimathi, the uprising’s most senior leader in October 1956. While the figures are debatable, the Mau Mau are said to have caused the death of at least 14,000 Africans, 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.

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46. To establish the root causes of Mau Mau, the colonial administration appointed the Corfield 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 ferocity of the colonial office response to Mau Mau. A thousand were hanged upon being convicted by courts, while more were killed by troops in the forest. There 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. The Mau Mau war did not only mark the end of the African resistance against colonial rule, but it was the climax of colonial atrocities on Africans suspected to be members of Mau Mau.

47. In 1999, a few former fighters calling themselves the Mau Mau Original Group announced that they would attempt a £5 billion claim against the UK, on behalf of hundreds of thousands of Kenyans for ill-treatment they said they suffered during the rebellion. In November 2002, the Mau Mau Trust - a welfare group for former members of the movement - announced it would attempt to sue the British government for widespread human rights violations committed against its members. With the assistance of the Kenya Human Rights Commission, in 2011, the Mau Mau group succeeded in suing the British after a British court ruled that the Kenyans could sue the British government for their torture. 48. After the Mau Mau War, the colonial government not only relaxed the ban on

the formation of African political parties, but also attempted to increase African representation in the colonial administration. The colonial administration permitted the re-establishment of African district- based political parties and/ or associations and disallowed national organizations. The first to be registered was the Nairobi District African 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 African Democratic Union, the African District Association, the Abagusii Association of South Nyanza District, the South

There 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

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Nyanza District African Political Association, the Taita African Democratic Union, the Nakuru African Progressive Party, the Nakuru District Congress, the Abaluhya Peoples Association and the Nyanza North African Congress42_.

49. One of the legacies of these district-based political associations was that the pace of political developments among the various districts continued to be uneven and parochialism rooted in ethnic loyalties was encouraged at the expense of African unity.43_{It provided the foundation of alignment of political orientation and}

ethnicity. The other effect was the emergence of local powerful figures that would resist attempts at political centralization by colony wide political organization such as the Kenya African National Union (KANU).

50. The process of increasing African 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 of the colony to share in the responsibility of government, albeit at a subservient level’. His advice resulted in the enactment of 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 for independence. But in reality it asserted minority interests while the language of 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 reference to the legislative council. Even the Council of Ministers was by and large in the hands of a handful of settlers. The contradictions emanating from the dispensation of the Lyttleton Constitution culminated in protracted political struggle in which Africans, Arabs and Asians demanded an all-inclusive political process. The political crises after the 1957 general election witnessed the enactment of another constitution, the Lennnox Boyd Constitution in 1956.

51. While the Lennox Boyd Constitution increased the number of African representatives in the Legislative Council, it did not adequately address the Africans’ grievances. However, it sharpened divisive racial and ethnic political interests that spilled over into the 1960 Lancaster House Constitutional Conference where a new constitution was negotiated. Therefore the Lancaster House conferences became a space for 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.

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President Jomo Kenyatta’s Era

52. On 12 December 1963, Kenya got independence from 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 of the colonial master. The government and the ruling political party, Kenya African National Union (KANU), not only retained repressive colonial laws, but also became increasingly intolerant of political dissent and opposition. Political assassinations and arbitrary detentions were turned into potent tools for silencing dissenting voices and ultimately for dismantling opposition political parties. For the larger part of Kenyatta’s reign Kenya was a de facto one-party state.

Official amnesia

53. The attainment of Kenya’s political independence on the 12December 1963, with Jomo Kenyatta as the first Prime Minister, marked the culmination of 68 years of anti-colonial struggles waged by Kenyan Africans to free themselves from 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 fact that the fight for national independence had been dominated by demands for social justice, egalitarian reforms, participatory democracy, prosecution of those who had committed mass killings and other forms of crimes during the war of independence, and the abolition of the colonial state and its oppressive institutions.

54. Also, in his independence speech, Jomo Kenyatta never mentioned the heroism of the Mau Mau movement.46_{No Mau Mau freedom songs were}

sung, no KLFA leaders was allowed to speak during the historic day. Instead, Kenyatta asked the people to forget the past – to forgive and forget the atrocities committed against them by the British and their Kenyan supporters during the war of independence47_{. He became no radical on nationalization}

of foreign-held assets including land and often remarked: “I regard titles as a private property and they must be respected … I would not like to feel that my shamba (smallholding) or house belongs to the government. Titles must be respected and the right of the individual safeguarded48_{”. In this way, the}

Kenyatta administration provided a relief to the settler community that their land will not be taken away from 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 briefly 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.

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55. The attainment of political independence shadowed several tensions and cleavages which occupied the new ruling elites prior to and immediately after independence.49_{For example, the radicals represented by Oginga Odinga and}

Bildad Kaggia who favoured nationalization of foreign owned corporations, seizing of white settler farms without compensation and following more pro-Eastern foreign policy. Odinga persuasively argued that “I understand that in communist countries the emphasis was on food for all. If 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 for backing. On the other hand, conservatives led by Jomo Kenyatta and Tom Mboya - the nationalists who espoused a constitutionalist and reformist approach and were after independence concerned with the maintenance of the colonial legacy. As the struggle raged for control of the state, decisions based on short-term expediency were interspersed with fundamental directional choices. 56. Kenya soon returned to a command and control leadership model strikingly

similar to that of the colonial era. Decisions about development, money and military protection drove foreign 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 for power saw the abandonment of the}

Majimbo Constitution, which conceded much autonomy to the regions for a de facto one party state. The dissolution of the Kenya African Democratic Union

(KADU) was a critical moment, setting the stage for three decades of single-party dictatorship and prioritisation of the maintenance of 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 of the fight for independence”. The reason for this was the expectation that those who fought for Uhuru (independence) should exclusively eat the fruits of independence52_.

This debate thrived even in the context of the revelations that Kenya had many powerful voices in the anti-colonial movement. Indeed Bethwell Ogot has demonstrated the roles and responsibilities of all the communities in Kenya, in anti-colonial movements53_{. Therefore the first 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).

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around land and the colonial land alienation among the Kikuyu, which had created a special group of Kikuyu without land54_{. Before independence,}

Kenyatta had pardoned the remaining Mau Mau detainees in prison and issued an amnesty for Mau Mau fighters to leave the forest and surrender their weapons. More than 2,000 did so in the first weeks after independence far more than the British had expected55_{. But after the amnesty for Mau Mau expired in}

January 1964, the government started treating the remnants as criminals. 58. By early 1965, most of the remaining Mau Mau hard-core fighters had been

captured and killed by the new independent government. The Mau Mau who made good their threat to return to the forest under the slogan of ‘Not yet Uhuru,’ Baimungi, were quickly executed. Kenyatta’s message in the 1960s was clear - there would be nothing for free. 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 for independence; his government persistently downgraded its importance and did nothing to reward the those who had suffered. Despite President Kenyatta’s promise in 1964 that the land confiscated during the Emergency would be returned, nothing happened. 59. The British removed and hid most records of the war on the eve of independence to

protect loyalists from reprisals and themselves from demands for compensation for atrocities. Ex-Mau Mau were given no preferential treatment in access to land and jobs.56

60. The ex-Mau Mau fighters were thus short-changed after independence. Even when the settlement schemes were initiated between 1963 and 1967, the Maasai who suffered the most got nothing and the Kalenjin received small areas around Sotik and Nandi. The squatters were not any better in their continued demand for cultivatable land across the highlands. Those living in the former White Highlands were evicted. In the majority of the settlement schemes in Nakuru and Nyandarua, the existing squatters were simply removed by force, with new claimants chosen to occupy the plots. The situation of the landless did not improve with the sale of larger farms under the ‘willing buyer, willing seller’ model. A decade after the implementation, one sixth of the settler lands were found to have been sold intact to the emerging African elite comprising Kenyatta, his wife, children and close associates. These elites did not even need much money to buy settler farms, as they were also able to raise loans from 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.

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Shifta War

61. After dealing with the Mau Mau issue, the next issue that the emergent fragile state had to deal with was the Shifta War. Before independence, the Somali had maintained a constant attack on police posts and army camps in Somali-inhabited regions. Two days after independence, the Somalia staged five more incursions, forcing the government to declare a state of emergency on 25 December 1963. The government became convinced that Somalia was training and providing bases for up to 2,000 shifta (bandit) guerrillas. While the shifta used guerrilla tactics, including hit-and-run attacks and mining of roads, the Kenya government adopted British counter-insurgency techniques used during the Mau Mau uprising, including the establishment of collective villages surrounded by barbed wire and guarded by troops. There were widespread beatings and killings of civilians and mass confiscation of livestock. As with the Kikuyu in 1953 to 1955, every Somali was seen as a potential shifta and treated accordingly, although, there was no equivalent of 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 shifta. No official death figures were published for the conflict, which received little international attention. The conflict established patterns of suspicion and hostility between ethnic Somali and other Kenyans that has endured for decades. Development in the colonial era in North Eastern where the Somali live had been non-existent and this changed little after independence. The state treated the Kenyan Somali as subjects rather than citizens and the region as a military-ruled colony.

Consolidation of power

63. On 24 January 1964, there was a strike by several hundreds of soldiers of the Kenya Rifles 11th_{Battalion, based in Lanet near Nakuru. The mutineers}

were driven by disgruntlement over pay, working conditions, and fear of their future under the KANU government which held on to British expatriate officers. With increasing internal tensions and external threats, the Kenyatta regime became even more repressive after the January 1964 mutiny. With no reference to the cabinet, Kenyatta appealed for and received the support of the British Army units to restore order without significant bloodshed. 64. But to make an example to mutineers, 43 soldiers were court-martialed, and

the military court jailed 16 ring leaders for a total of 197 years. To consolidate power, the Kenyatta regime supported constitutional amendments between 1964 and 1969 whose objective were to destroy democratic institutions while

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protecting the KANU-led government and the interests of the comprador class.58

Selected constitutional amendments (1963-1969)

The Constitution of Kenya (Amendment) Act No. 14 of 1965

This Amendment Act reduced the threshold for amending the Constitution from 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 of emergency from 7 to 21 days. Importantly, it reduced the threshold for approval of state of emergency from 65 percent to a simple majority

The Amendment Act introduced the rule that a Member of Parliament would lose his seat in Parliament if he missed 8 sittings or was imprisoned for a period of 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 of Kenya (Amendment) (No. 2) Act No. 17 of 1966 (Turn Coat Rule)

Under this Amendment Act, a Member of Parliament would by law lose his parliamentary seat of he defected to another political party. The amendment was meant to deal with Members of Parliament who had defected from KANU to KPU.

The Constitution of Kenya (Amendment) (No. 3) Act No. 18 of 1966

This Amendment Act increased the period for National Assembly’s review of emergency orders from 2 to 8 months. It permitted greater and wider derogation powers of fundamental rights and freedoms. It also removed the provision calling for reasonable justification for such derogations. This amendment was intended to allow for detention of KPU members who had defected from KANU.

This Amendment Act was intended to clear doubt over section 42A which spelt out the Turn Coat Rule. It backdated the effect of the Fifth Amendment to 1963.

The Constitution of Kenya (Amendment) (No. 2) Act No. 16 of 1968

Under this Amendment Act, independent candidates were barred from participating in elections. The amendment also removed parliamentary approval for state of emergency declaration.

This amendment Act consolidated all the constitutional amendments as at February 1969 thereby resulting in a revised Constitution of 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