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This Report, Dusk to Dawn? Our HRDs Story on Kenya’s 2022 Electoral Processes and Outcomes is a summary of the Human Rights Defenders’ (HRDs) monitoring exercise that was carried in one (1) year between August 2021 and August 2022.

Its title is informed by the English saying that it is ‘darkest before dawn’. This saying means that prior day break it is the darkest, and of course that translates to that before something good happens one must go through serious problems. That has been Kenya’s history with elections since 1992. President (Dr. William Ruto) the eventual winner of 2022 presidential elections has been part of the government that has been in power for the past 09 years. He served as the Deputy President under President Kenyatta between 2013-2022.

Under that government Kenyan people suffered a lot socially, economically and also politically. Now the question that bothers Kenyans is whether with Ruto’s presidency, Kenya will change for the better; in other words, will Kenyan people fortunes change so that we get out of the dusk that we have been going through culminating in COVID-19, to a new dawn of hope and optimism? Only time will tell. In the meantime, HRDs have a lot of work to hold the ‘new’ government to account for all the pledges they made during the campaigns.

Human Rights Defenders (HRDs) as used in this report, is a term derived from the UN Declaration of HRDs, of 1998, which identifies HRDs as individuals or groups who act to promote, protect or strive for the protection and realization of human rights and fundamental freedoms through peaceful means.13 Thus, States are obligated to recognize the value and important contribution of HRDs to peace, sustainable development and human rights and to respect HRDs on a nondiscriminatory basis, protect them against any arbitrary action as a consequence of the legitimate exercise of the rights referred to in the Declaration.

Since the introduction of multiparty in the early 1990s, elections held in Kenya, elections are highly contested and elicit mixed feelings and anxiety. Further, there have been periods where elections are marked by violence especially in 1992 and 1997, with the ‘climax’ being in 2007/08 when Kenya was in the cusp of a precipice. This has invited actions to monitor and respond to these factors. This has seen a huge investment by government, UN Bodies and CSOs to prioritize activities that enhance and promote peace, electoral justice, and respect for human rights.

From August 2021 to August 2022, the Defenders’ Coalition recruited a total number of 212 monitors who are essentially HRDs by training and practice to monitor human rights violations during the said period. In three (3) periods, the Defenders Coalition facilitated these HRDs to undertake monitoring in different batches: first, between August and December 2021, there were 75 monitors;14 second, from December 2021 to January 2022, there were 32 monitors;15 and finally, between June and August 2022, there were 105 monitors. This Report is thus a comprehensive compilation of what transpired in Kenya, from the views and perception of Kenyan HRDs based on Human Rights-Based Approaches (HRBA).

This Report is a consolidation of various reports by Defenders Coalition which includes among others, the Report that is titled Status of Human Rights Defenders at the Blink of 2022 Elections; this covers the period from August 2021 to July 2022. Other reports are situational reports, which are basically summing up what HRDs monitors perceived throughout the that cover various months towards the August Election, particularly the months of June, July, and August 2022 when Defenders Coalition has 105 monitors16 on the ground for those three (3) months.

FINDINGS

Overall, the HRDs monitored, documented, and reported various forms of violations during the project period August 2021-September 2022. These abuses ranged from, threats on the right to life, of not the HRDs but also the general populace including forceful and politically motivated disappearances. Indeed, 259 people were killed by police in differing circumstances and 35 disappeared in police custody. Second, and connected to the above are many cases of police brutality. Police violently dispersed up peaceful protests and assemblies especially by HRDs and in some instances caused death as a result of use of lethal force.

Further, during this monitoring period, the Defenders Coalition monitors also documented 42 cases of Sexual and Gender-Based Violence (SGBV). Some of these cases related to Female Genital Mutilation (FGM); forced early marriages of under-age girls; spousal domestic violence and rape being on the rise, particularly in Wajir, Siaya, Marsabit, Tana River, Baringo, Tharaka Nithi and West Pokot Counties leading the pack. It should be noted that most of these Counties have constant and overt conflict and hence there is correlation between SGBV cases and conflict.

The Defenders Coalition documented throughout the year, constant persecution of HRDs, where their operating environment is shrinking, and perpetrators act with impunity. HRDs continue facing intimidation, criminalization, harassment, stigmatization, and vilification and their work was negatively profiled by State and non-State actors. More concerning is that the perpetrators engage in smear campaigns, de-registration of HRDs organizations, and threats of staff of organizations including Defenders Coalition that was a victim of these attacks.

Of special or mention is the intolerance and attacks on HRDs working for the rights of sexual minorities and women human rights. During the project period, two (2) were founded murdered in Nairobi and Nyeri counties whilst many others SOGIE HRDs have been physically or sexually attacked or arbitrarily arrested or harassed in their homes by unknown persons, especially for Women HRDs (WHRDs), in the period under review.

Since this Report is about monitoring elections by HRDs, one could argue with all the above, the work of HRDs has been rather complicated insofar as their mandate of fighting for the protection, promotion, and fulfillment of human rights in accordance with the three (3) international, continental and national obligations.

OTHER CONCERNS

Part of the problems as stated above plus the issue of early smear campaigns and use of misinformation and political intolerance, makes HRDs of defending of human rights becomes next to impossible. Indeed, violence and insecurity that has plagued many Counties makes HRDs vulnerable to do their work. So are attacks on media houses and journalists not to mention forced evictions and displacement and re-emergence of criminal gangs in the period under review, such as the notorious ‘Confirm Gang’ in Nakuru County which caused untold suffering to the residents.

Between August 2021 and September 2022, because marked heightened electoral and political tensions, a lot of transgressions were recorded by the monitors who were evenly distributed across the country, particularly in what the National Cohesion and Integration Commission (NCIC) described as hotspot areas in its report, Report on Conflict Mapping, that was released in June 2022. The Defenders Coalitions deployed HRDs to monitor in the six (6) high risk Counties of Nairobi, Uasin Gishu, Mombasa, Kisumu, Nakuru and Kericho.

CONCLUSIONS AND RECOMMENDATIONS

At end this Report, the Defenders Coalition makes several conclusions and recommendations internally relevant and to other stakeholders in that order. first, and internally, the Defenders Coalition has invested and revamped the Mtetezi Application (App) during this monitoring period, but it will further re-programme it to ensure it works throughout. Not all monitors in the review period accessed the App and hence there is need to reconfigure the same, as it has when it works, proved to be very vital in safely monitoring, documenting, and reporting on human rights violations across the Republic.

Second, the Defenders Coalition has trained over 300 HRDs on monitoring, documenting, and reporting. However, not all monitors filed comprehensive reports to the Secretariat. Thus, the Defenders Coalition will invest in the HURIDOCS system and see the extent to which these materials could be distributed to the HRDs across the country, so that they may make reference to these international materials to improve their role in monitoring, documenting and reporting.

Third, the Supreme Court made a raft of recommendations about the role of the IEBC and the reforms it much needs. The judgment is available for perusal by HRDs to step up advocacy around the much-needed changes to the IEBC since some Commissioners exiting the institution. Further to the above, the Defenders Coalition strongly recommends a through audit of the structures and systems of the IEBC to rectify some of the gross failures cited in this Report. One of them that stood out is the refusal of HRDs to access polling stations, yet they had their letters of accreditation and IEBC badges!

Fourth, some civil society members were closely engaged with or perceived to be aligned to either of the two political outfits: Azimio la Umoja or Kenya Kwanza. Noting this there is need for a closed-door meeting to interrogate the role of civil society in an election, and their contribution to objective discourse that ensures electoral integrity and respect for human rights. This introspection is very important to plan on the next electoral cycle and what would be our role in the envisaged reforms of IEBC and other stakeholders.

Further, we challenge the media houses and the owners to prioritize journalists’ safety when covering partisan elections and fully enforce the code of conduct for practice of journalism and ethics as per the Media Act (2013). Public and private media houses also need to interrogate the need for fair coverage of candidates, especially the presidential contenders, but also manage hate speeches, fear mongering and despondency etc. during the electoral period.

As for the security agencies, in their various formations, they should ensure that all their officers are taken through the electoral code of conduct since some of them were accused and presented before courts for gross violations of the electoral process. On the other hand, the brutality and arbitrary arrest on unarmed persons during demonstrations, particularly HRDs, must be addressed to ensure proper training and respect for human rights in public order management. Connected to this, these agencies should conclude all the investigations underway where HRDs especially WHRDs have suffered under the hands of rogue officers or unknown persons. We encourage IPOA to continuously investigate and hold these officers to account.

To the development partners, we reiterate recommendations of the July 2022: that they should set aside support for civil society that are involved in conflict early warning systems and response so that they map areas that could explode and coordinate such response. The NCIC Report came in handy to provide civil society with what to look out for during monitoring.

Finally, all stakeholders in the electoral processes and outcomes, whether they are monitors or observers should consider their conduct in times of coordinating their own safety and/or response that is effective and efficient. Through this support the stakeholders will be able to avert potential conflict from conflagrating further.

With the above, and many more in the body of this Report, the Defenders Coalition will continue contributing towards the work of HRDs by making the environment safe and also that their stand of defending human rights does not cause them harm or harm to those they represent as they undertake their mandate.

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