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.
REPORT OF THE TRUTH, JUSTICE AND RECONCILIATION COMMISSION
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.
REPORT OF THE TRUTH, JUSTICE AND RECONCILIATION COMMISSION
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
REPORT OF THE TRUTH, JUSTICE AND RECONCILIATION COMMISSION
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
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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
REPORT OF THE TRUTH, JUSTICE AND RECONCILIATION COMMISSION
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
REPORT OF THE TRUTH, JUSTICE AND RECONCILIATION COMMISSION
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
REPORT OF THE TRUTH, JUSTICE AND RECONCILIATION COMMISSION
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
REPORT OF THE TRUTH, JUSTICE AND RECONCILIATION COMMISSION
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
REPORT OF THE TRUTH, JUSTICE AND RECONCILIATION COMMISSION
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.
REPORT OF THE TRUTH, JUSTICE AND RECONCILIATION COMMISSION
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
REPORT OF THE TRUTH, JUSTICE AND RECONCILIATION COMMISSION
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).
REPORT OF THE TRUTH, JUSTICE AND RECONCILIATION COMMISSION
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
REPORT OF THE TRUTH, JUSTICE AND RECONCILIATION COMMISSION
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
REPORT OF THE TRUTH, JUSTICE AND RECONCILIATION COMMISSION
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 Constitution o Kenya (Amendment) Act No. 16 o 1966
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.
The Constitution o Kenya (Amendment) Act No. 13 o 1967
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.
The Constitution o Kenya (Amendment) Act No. 5 o 1969
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
REPORT OF THE TRUTH, JUSTICE AND RECONCILIATION COMMISSION
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
REPORT OF THE TRUTH, JUSTICE AND RECONCILIATION COMMISSION
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
REPORT OF THE TRUTH, JUSTICE AND RECONCILIATION COMMISSION
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
REPORT OF THE TRUTH, JUSTICE AND RECONCILIATION COMMISSION
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.
The Constitution o Kenya (Amendment) Act No 14 o 1986
This Amendment Act removed security o tenure o the Attorney
General and Auditor
and Controller General
The Constitution o Kenya (Amendment) Act No 20 o 1987
This Amendment Act made all capital ofences
non-bailable
The Constitution o Kenya (Amendment) Act No 8 o 1988
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
The Constitution o Kenya (Amendment) Act No 12 o 1991
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.
REPORT OF THE TRUTH, JUSTICE AND RECONCILIATION COMMISSION
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