ARTICLES

The right to participate in the government of one's country: An analysis of article 13 of the African Charter on Human and Peoples' Rights in the light of Kenya's 2007 political crisis

Morris Kiwinda Mbondenyi

LLD candidate, University of South Africa

SUMMARY

The article analyses the right to participate in the government of one's country under article 13 of the African Charter on Human and Peoples' Rights within the context of the post-election crisis experienced in Kenya in December 2007. It is argued that the crisis was a culmination of poor governance and undemocratic practices successively handed down from one political regime to another, from when the country attained its independence. The article maintains that since 1963, many Kenyans have been denied the enjoyment of the right to participate in government through political manipulation, corruption, intimidation, vote rigging, ethnicity and other related vices. Hence, the undermining of democracy and diverse citizenship rights have contributed extensively to the country's governance crisis, the labyrinth of which was exposed by the 2007 postelection events.

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* LLB Hons (Moi), LLM (South Africa); mbondenyi@gmail.com
1 The deal was contained in two documents, namely, the Agreement on the Principles of Coalition Government and the National Accord and Reconciliation Act 2008. See The Standard Team 'New dawn as MPs convene' http://www.eastandard.net (accessed 6 March 2008).         [ Links ]
2 According to estimates, at least 1 000 people were killed and 350 000 internally displaced. See The Standard Team (n 1 above).
3 See B Namunane 'Annan pleads for grand coalition government' http://www.nationmedia.com (accessed 13 February 2008).         [ Links ]
4 Human Rights Watch 'Ballot to bullet: Organised political violence and Kenya's crisis of governance' (2008) 20/1 (A) 3.         [ Links ]
5 Africa Watch 'Divide and rule: State sponsored ethnic violence in Kenya' (1993) http://hrw.org/reports/1993/kenya1193.pdf (accessed 29 March 2008);         [ Links ]Human Rights Watch 'Playing with fire: Weapons proliferation, political violence and human rights in Kenya' (2002) http://www.hrw.org/reports/2002/kenya/ (accessed 29 March 2008).         [ Links ] See also the Report of the judicial Commission Appointed to Inquire into the Tribal Clashes in Kenya (1999) http://marskenya.org/pages/stories/Akiwumi_Report/ (accessed 29 March 2008).         [ Links ]
6 See African Charter on Human and Peoples' Rights, adopted 27 June 1981, OAU Doc CAB/LEG/67/3 Rev 5, 21 (1982) 58 International Legal Materials, entered into force 21 October 1986.
7 Universal Declaration on Human Rights, GA Res 217 (III), adopted on 10 December 1948.
8 See art 44 American Convention on Human Rights, OAS Treaty Series No 36, 1144 UNTS 123, entered into force 18 July 1978.
9 Arts 25-34, Convention for the Protection of Human Rights and Fundamental Freedoms, 213 UNTS 222, entered into force on 3 September 1953, as amended by Protocols 3, 5, 8 & 11 which entered into force on 21 September 1970, 20 December 1971, 1 January 1990 and 1 November 1998, respectively.
10 K Hope 'The UNECA and good governance in Africa' paper presented at the Harvard International Development Conference 4-5 April 2003, Boston, Massachusetts, 2.
11 As above.
12 As above.
13 For a detailed discussion on this, see generally A Mangu 'The road to constitutionalism and democracy in Africa: The case of the Democratic Republic of Congo' unpublished LLD thesis, University of South Africa, 2002 ch 3.         [ Links ]
14 See generally Jawara v The Gambia (2000) AHRLR 107 (ACHPR 2000); Amnesty International v Zambia (2000) AHRLR 325 (ACHPR 1999); Legal Resources Foundation v Zambia (2001) AHRLR 84 (ACHPR 2001); Modise v Botswana (2000) AHRLR 30 (ACHPR 2000).
15 See generally Jawara v The Gambia (n 14 above).
16 See para 46 of the communication.
17 See Modise v Botswana (n 14 above) para 2.
18Modise v Botswana (n 14 above) para 95.
19 As above.
20 Modise v Botswana (n 14 above) para 96.
21 Legal Resources Foundation v Zambia (n 14 above) para 64.
22 Legal Resources Foundation v Zambia (n 14 above) para 2.
23 Legal Resources Foundation v Zambia (n 14 above) para 3.
24 Legal Resources Foundation v Zambia (n 14 above) para 72.
25 See C Odinkalu 'Back to the future: The imperative of prioritising for the protection of human rights in Africa' (2003) 47 Journal of African Law 18.         [ Links ]
26 As above.
27 Amnesty International v Zambia (n 14 above) para 46.
28 Constitutional Rights Project & Another v Nigeria (2000) AHRLR 191 (ACHPR 1998) para 50.
29 Katangese Peoples' Congress v Zaire (2000) AHRLR 72 (ACHPR 1995).
30 jawara v The Gambia (n 14 above) para 67.
31 The Constitutive Act of the African Union, adopted by the 36th ordinary session of the Assembly of Heads of State and Government, 11 July 2000, Lomé, Togo, CAB/ LEG/23 15, entered into force 26 May 2001.
32 n 31 above, art 4(p).
33 n 31 above, art 30.
34 Art 23 partly provides as follows: '2 ...any member state that fails to comply with the decisions and policies of the Union may be subjected to other sanctions, such as the denial of transport and communications links with other member states, and other measures of a political and economic nature to be determined by the Assembly.'
35 See Declaration of the Framework for an OAU Response to Unconstitutional Changes of Government AHG/Decl 5 (XXXVI) adopted by the 36th ordinary session of the Assembly of Heads of State and Government of the OAU.
36 For a more detailed definition of this phrase, see OAU Report of the Sub-Committee of the Central Organ on Unconstitutional Changes in Africa (2000) 25 (v)-(vi).
37 See African Peer Review Mechanism 'Country Review Report of the Republic of Kenya' http://www.polity.org.za/article.php?a_id=99422 and http://www.nepad.org/aprm-not accessible (accessed 4 February 2009) 14.         [ Links ]
38 For a similar argument, see generally K Hopkins 'A new human rights era dawns on Africa' (2003) 18 South African Public Law 350.         [ Links ]
39 African Peer Review Mechanism (n 37 above) 46. The areas in question were in Central Province, the Rift Valley Highlands and parts of Western Province.
40 As above.
41 See African Socialism and its Application to Planning in Kenya, Sessional Paper No 10, Government Printer, 1966.
42 As above.
43 African Peer Review Mechanism (n 37 above) 49.
44 A Korwa & I Munyae 'Human rights abuses in Kenya under Daniel Arap Moi 1978-2001' (2001) 5 African Studies Quarterly http://web.africa.ufl.edu/asq/v5/v5i1a1.htm (accessed 3 February 2008).         [ Links ]
45 As above.
46 A Sjögren & P Karlsson 'Kenyan politics 1963-2007: A background to the elections' http://www.nai.uu.se/policy_activities/articles/sjogren_and_karlsson/background-1/ (accessed 3 February 2008).         [ Links ]
47 As above.
48 Korwa & Munyae (n 44 above).
49 As above.
50 Amnesty International 'Kenya: Torture, political detention and unfair trials' (1987) AI Index AFR 32/17/87 and Amnesty International 'Kenya: Torture compounded by the denial of medical care' (1995) AI Index AFR 32/18/95.
51 African Peer Review Mechanism (n 37 above) 49.
52 Korwa & Munyae (n 44 above).
53 C Sicherman 'Kenya' (1998) 57 Race and Class 63.         [ Links ]
54 See National Council of Churches of Kenya 'CPK/ARCH: Synod Committee Report' April 1992 and A Abuom 'The role of Kenyan churches in democratisation' paper presented at a Conference on the Christian Churches and Africa's Democratisation, Leeds, 1993, cited in Korwa & Munyae (n 44 above).
55 See generally Amnesty International 'Kenya Annual Report for 1997' (1998).
56 See Standard Team 'A blot on the talks' http://www.eastandard.net (accessed 13 February 2009).         [ Links ]
57 D Rothchild 'Ethnic insecurity, peace agreements and state building' in R Joseph (ed) State, conflict and democracy in Africa (1999) 320.         [ Links ]
58 African Peer Review Mechanism (n 37 above) 17. This report indicates that the country's Gross Domestic Product (GDP) fell precipitously from an annual growth rate of 7,5% in 1971-80 through 4,5% in 1981-90, to a mere 1% in 1997-2002.
59 As above.
60 As above.
61 See generally UNDP Fourth Human Development Report for Kenya, 2005;         [ Links ] and Society for International Development (2004) 'Pulling apart facts and figures on inequality in Kenya'.         [ Links ]
62 African Peer Review Mechanism (n 37 above) 17.
63 As above
64 See Hope (n 10 above) 6.
65 See generally G Njuguna 'The lie of the land evictions and Kenya's crisis' (2008) 2 African Policy Brief 1.         [ Links ]
66 Kenya National Commission on Human Rights Unjust enrichment (2004) 1.         [ Links ]
67 As above.
68 n 66 above, 146.
69 See generally Republic of Kenya Report of the Commission of Inquiry into the Illegal/ Irregular Allocation of Pubic Land, Nairobi: Government Printer, June 2004 (Ndungu Report).         [ Links ]
70 See the Constitution of the Republic of Kenya, adopted in 1963, as amended in 1999.
71 African Peer Review Mechanism (n 37 above) 16.
72 African Peer Review Mechanism (n 37 above) 24.
73 See art 4 of the Constitution of the Republic of Kenya.
74 Arts 15 & 16.
75 Art 14.
76 Art 111.
77 Art 109.
78 Art 61.
79 Art 110.
80 Art 108.
81 As above.
82 Art 59.
83 Art 46(2).
84 Art 41.
85 African Peer Review Mechanism (n 37 above) 50.
86 African Peer Review Mechanism (n 37 above) 24.
87 As above.
88 See Standard Team 'It's up to you, Annan tells House members' http://www.eastan-dard.net (accessed 13 February 2009).         [ Links ]
89 Hope (n 10 above) 8.
90 As above.
91 As above.