Introduction to KNDR

Kenya faced the biggest crisis in its post-independence history following the General Elections that took place in December, 2007. Set against the backdrop of what had generally been considered historic and peacefully conducted presidential, parliamentary and local polls, the country was soon overtaken by unprecedented levels of violence, following the announcement of the presidential election results. The extent of the devastation which ensued was catastrophic, with approximately 1,300 people killed and over 600,000 displaced, in addition to massive destruction of property. The visit of President John Kufuor, the then Chair of the African Union, to Kenya from 8 to 10 January 2008, resulted in the creation of a Panel of Eminent African Personalities, composed of former UN Secretary-General, Mr. Kofi Annan (Chair), former President of Tanzania, Mr. Benjamin Mkapa and former South African First Lady, Mrs. Graca Machel, to assist Kenyans in finding a peaceful solution to the crisis. Under the auspices of the Panel, President Kibaki’s PNU and Mr. Odinga’s ODM started negotiations on 29 January, 2008 through the Kenya National Dialogue and Reconciliation Committee (the KNDR or “National Dialogue”). A four-point Agenda for the National Dialogue was agreed upon at the outset of the negotiations and comprised the following items:

1. immediate action to stop the violence and restore fundamental rights and liberties;
2. immediate measures to address the humanitarian crisis, promote reconciliation, healing and restoration of calm;
3. how to overcome the political crisis; and
4. long-term issues and solutions (such as constitutional, institutional and legal reforms; land reform; poverty and inequity; unemployment, particularly among the youth; consolidating national cohesion and unity; and transparency, accountability and impunity).

Agenda Item One

On 1 February 2008, the KNDR issued a signed public agreement on the post-election violence, under Agenda Item 1 of the Dialogue. The statement proposed immediate measures to stop the violence, including that the police act in accordance with the constitution, and observe impartiality in the execution of their functions. In addition, all leaders were challenged to embrace peace and promote peaceful coexistence of communities by acting responsibly. The statement called for the demobilisation and disbandment of illegal armed militia and appealed to the youth not to participate in acts of lawlessness.

The statement further underscored the entitlement of all Kenyans to civil and political rights. It called for upholding freedom of expression, press freedom and the right to peaceful assembly. It also called for expeditious, impartial and effective investigation of all cases of crime, police brutality and excessive use of force, while at the same time ensuring enforcement of law and order to protect life and property.

Agenda Item Two

On 4 February, 2008, the KNDR issued a public agreement on immediate measures to address the humanitarian crisis and promote reconciliation, healing and restoration of stability. The signed public agreement committed the parties to ensuring that displaced persons were assisted to return to their homes and that they were provided with adequate security and protection.

Agenda Item Three

On 14 February, 2008, the parties agreed to establish an independent body (the Independent Review Committee) that would be mandated to investigate all aspects of the 2007 presidential election and make findings and recommendations to improve the electoral process for the future. They also agreed that a political settlement to the crisis would inform broader reforms to address the root causes of the crisis.

On 28 February, 2008, an agreement called “Acting Together for Kenya” was signed on the steps of Harambee House, outlining the principles of partnership for a Coalition Government. This power-sharing agreement entailed the creation of the posts of Prime Minister and two Deputy Prime Ministers as well as the formation of the Coalition Government. Following several consultations, President Kibaki announced on 14 April, 2009 the composition of the 92-member Coalition Government (40 Ministers and 52 Assistant Ministers). Mr. Odinga was appointed Prime Minister, assisted by Mr. Musalia Mudavadi (ODM) and Mr. Uhuru Kenyatta (PNU) as his Deputy Prime Ministers. On 17 April, 2008 the members of the Coalition Government were sworn in. It was on the basis of the principles of partnership of a Coalition Government that the National Accord and Reconciliation Act 2008 was drafted and presented to Parliament for debate. The Act was passed by Parliament on 18 March, 2008.

Agenda Item Four

Following the signing of the 28 February power-sharing agreement, the Panel appointed Session Chair, Ambassador Oluyemi Adeniji, former Minister of Foreign Affairs of Nigeria, to conclude negotiations on Agenda Item 4 -Long-term Issues and Solutions. On 4 March, 2008, the Negotiating Team signed the following four agreements:

1. General principles and parameters for the Independent Review Committee on the 2007 General Elections (IREC).

As a result of this agreement, IREC was established with the mandate to investigate all aspects of the 2007 general elections and make findings and recommendations to improve the electoral process in the future. The seven-member Committee composed of four Kenyan and three international experts, including the IREC Chair, Judge Johann Kriegler of South Africa, submitted its report to the two principals and the Panel on 17 and 18 September, 2008, respectively.

1. General principles and parameters for the Commission of Inquiry into the Post-Election Violence (CIPEV).

Based on this agreement, CIPEV was created with the mandate to investigate the facts and circumstances related to the post-election violence, including actions or omissions of State security agents, that took place between 28 December, 2007 and 28 February, 2008, to make recommendations on criminal accountability, reconciliation and on how to prevent such acts in the future, and to make recommendations, as it deems appropriate, to the Truth, Justice and Reconciliation Commission. CIPEV, composed of two international experts and the Kenyan Chair, Justice Philip Waki, started its work in May 2008 and submitted its final report to the two principals and the Panel on 15 and 17 October, 2008, respectively.

1. General principles and parameters for the Truth, Justice and Reconciliation Commission (TJRC).

On the basis of this Agreement, the Truth, Justice and Reconciliation Act was elaborated and then passed by the National Assembly on 23 October. It received presidential assent on 28 November and its commencement date was published in the Kenya Gazette as 9 March, 2009. The TJRC has been mandated to inquire into human rights violations, including those committed by the State, groups or individuals, as well as major economic crimes and historical injustices, including those related to land, which took place between 12 December, 1963, the date of Kenya’s independence and 28 February, 2008, the date on which the National Accord was signed. The Commission has been given a mandate of two years, with the possibility of an extension not to exceed six months. The nine-member Commission is composed of six Kenyan and three international experts.

1. Roadmap for a comprehensive constitutional review process.

This roadmap led to the elaboration of the Constitution of Kenya Review Act 2008, which came into force on 25 December, 2008. The Act provided for the establishment of a Committee of Experts, composed of six Kenyans and three non-Kenyans, to examine previous constitutional drafts, receive inputs from the public, propose compromises for contentious issues and present a new draft Constitution for the consideration of Parliament and the Kenyan people through a referendum. The constitutional review was to be completed within 12 months from the date of the coming into force of the Act. The review process reached a successful conclusion following a referendum held on 4 August, 2010 and the promulgation of the new Constitution of Kenya on 27 August, 2010.

Statement of Principles on Long-Term Issues and Solutions

On 23 May, 2008, the Negotiating Team signed a Statement of Principles on Long-Term Issues and Solutions, reaffirming the parties’ commitment to address the issues of Agenda Item 4. This was followed on 30 July, 2008 by the adoption of an implementation framework on the long-term issues, which contains a series of actions, timelines and focal points for each of the six sub-themes under Agenda 4: constitutional and institutional reforms; land reform; poverty, inequity and regional development imbalances; unemployment, particularly among the youth; consolidating national cohesion and unity; and transparency, accountability and impunity. The agreement on the implementation framework marked the formal conclusion of the mediation phase of the KNDR.

Implementation Phase

On 14 March, 2008, the AU Peace and Security Council adopted a decision which, inter alia, commended the two principals for the wisdom, leadership and courage shown in ending the crisis in the country, and also commended the Panel for its efforts. The AU Peace and Security Council requested the Panel to “continue to support the Kenyan parties in the implementation of these Agreements, including support to the various Committees and Commissions provided therein, as well as in the follow-up to the recommendations emanating from them”. The Council further requested the Panel to “provide all the necessary support to the Coalition Government and other stakeholders in the Constitutional Review Process”.

To facilitate implementation of the agreements and ensure the continued engagement of the Panel during the post-mediation phase, a scaled-down Panel Secretariat, called the Coordination and Liaison Office (CLO), was established on 30 July, 2008 in Nairobi, which was given the responsibility of assisting in the implementation of the KNDR Agreements and supporting the Coalition Government as it seeks to address the long-term issues addressed in Agenda Item 4.  

In August, 2010, the Coalition Government extended the CLO’s mandate for a further two years, in view of the ongoing and envisaged assistance needs of the government to further implement Agenda Four reforms ahead of the next general election in 2012.