The handover of the names of the suspects behind Kenya’s post-elections violence to the International Criminal Court (ICC) opens an uncertain chapter in the country’s history of political violence. This development has generated a vibrant debate among Kenyans: What should accountable politics look like? What is …

The Normalisation of Violence – Daniel Branch

Writing more than twenty years ago about Idi Amin’s Uganda, Ali Mazrui observed that
Everyone was talking about the tyrant. I suggested that more people had died in the second half of the Amin years as a result of anarchy than as a result of tyranny. Many of the killings were not…

DIY Violence is Corrosive of Nationhood – Daniel Waweru

It is not often that participants in ethnic cleansing confess to it openly, but William ole Ntimama has managed it twice: in a 1996 interview, and more recently. The brazenness of the impunity is revolting: it is natural to want accountability and reform, and equally natural to…

Kenya Post-2008: The calm before a storm? – Gabrielle Lynch

Nineteen months have passed since Kenya’s contested 2007 election, when the rapid re-inauguration of President Mwai Kibaki heralded an outburst of post-election violence – characterised by targeted attacks on ethnic ‘others’, an overzealous state security response, and retaliatory attacks on ‘aggressor’ communities – which left…

The Spectre of Impunity and the Politics of the Special Tribunal in Kenya – Tim Murithi

On 9 July 2009, Kofi Annan the former chief mediator in the aftermath of Kenya’s post-electoral violence, transferred an undisclosed list of senior politicians to the Prosecutor of the International Criminal Court, Luis Moreno-Ocampo. These politicians are alleged to have committed crimes…

Watu Wazima: A gender analysis of forced male circumcisions during Kenya’s post-election violence. – Wanjiru Kamau-Rutenberg

Stories of men being forcibly circumcised and even castrated peppered news accounts of the madness that overtook Kenya in the aftermath of the December 2007 elections. According to the Waki commission that investigated the Post Election Violence (PEV),…

Kenya: Our Possible Futures; Our Choices – Sisule Musungu

We knew or should have known that it was coming. But somehow we thought or believed, as the most corrupt country in the region, that we could bribe our way out of catastrophe. That was the 2007 post-election violence in Kenya. Then, as now, we knew what our…

Truth, Justice, Reconciliation, and… land Tenure Reform? – Chris Huggins

The Kenyan Truth, Justice and Reconciliation Commission (TJRC) is mandated to enquire into human rights violations, including community displacements, settlements, evictions, historical land injustices, and the illegal or irregular acquisition of land, especially as these relate to conflict or violence. access to land is often cited as one of the key structural causes of violence in Kenya.

Accountability Debate in Kenya Unforlds in a Near Policy vacuum and Ethnic Tension – Godfray M. Musila

There seems to be consensus around the need to deal with injustices– gross human rights violations, economic crimes and abuse of power –perpetrated in Kenya over the last 35 years. However, Kenya lacks a coherent policy on the broader question of transitional justice: which institutions should be used (Special Tribunal for Kenya (1), Truth, Justice and Reconciliation Commission(2) [TJRC] or criminal courts), …

Incremental Judicial Reforms in Kenya – Charles A. Khamala

Judges deal in fear, pain and death. However exercised, judicial power has a tremendous impact on the socio-economic, political and cultural systems of a nation. Kenyan masses remain alienated not merely by the foreign language and condescending demeanor of courtrooms but also the centralization of justice. Consequently, we must ask: is the quality of justice determined by the performance of an incumbent occupant of a judicial position? If so, who should appoint judges? What is to be done when the actions of a politically partisan Chief Justice cow an entire judiciary to bow to executive whims?

Special Tribunal Enactment: Why cabinet, MPS, are Misleading Kenyans – N. Wainaina and P. Chepneg’etich

Kenyans are very suspicious of the rare unity between the Cabinet and the Parliament as they jointly dismiss calls for the prosecution of the perpetrators of post-election violence atrocities. This unscrupulous behaviour is not coincidental, but a well crafted strategy: the Cabinet and Parliament are distorting facts on the requirements for a local tribunal, in order to escape accountability.

Saving International Justice in Africa – Chidi Odinkalu

At the conclusion of its Summit in Sirte, Libya, on July 1, 2009, the Assembly of Heads of State and Governments of the African Union (AU) decided that “AU Member States shall not cooperate … in the arrest and surrender of President Omar El Bashir of The Sudan.” In a press release issued two weeks later, on July 14, the organisation explained that this decision “bears testimony to the glaring reality that the situation in Darfur is too serious and complex an issue to be resolved without recourse to an harmonised approach to justice and peace, neither of which should be pursued at the expense of the other.”

This debate is organized by Oxford Transitional Justice Research (OTJR) in collaboration with Moi University (Eldoret) and Pambazuka News. A selection of essays based on this debate will be published in an edited volume by Fahamu Books. For PDF documents of the debate please visit OTJR.

When Prof. Makau Mutua suggested that the Liberian Truth and Reconciliation Commission (TRC) may have lessons for Kenya, he focused on the robust recommendations of the Commission. He did not explore another reason why Kenya might look to Liberia: the crisis of credibility that plagued the beginning of Liberia’s TRC process. This essay argues that there are good reasons to take seriously the challenges to credibility, because they often denote a shortcoming in institutional legitimacy, itself thought to influence the effectiveness of transitional justice processes. The essay does not intend to suggest that credibility causes, or can be equated to, effectiveness; while credibility can be thought of as necessary, it is only one of a broad range of factors that affect the capacity of an institution to achieve the goals it pursues. Rather, this essay shows how TRC procedures in Liberia, the Democratic Republic of Congo (DRC) and Serbia affected the manner in which the institutions were perceived and draws some lessons for Kenya.

In Liberia, the Comprehensive Peace Agreement of 21 August 2003 recommended the establishment of a truth commission as one of the institutions of transition. Soon after, Gyude Bryant, the Chairman of the National Transitional Government (NTGL), appointed nine commissioners to a truth commission in January 2004 – before there was even a TRC Act. This immediately created a significant challenge to the credibility of the Commission, namely the lack of selection criteria for the commissioners, public consultation, or clarity regarding the Commission’s goals. Civil society pointed out that the Commission “lacked set objectives, mandate, jurisdiction or legal status” (TRC Report, Vol.2 p140, 8.1.1). Following a series of civil society consultations and workshops, a TRC Act was drafted and presented to the Chairman in August 2004. More pressure resulted in the Chairman forwarding the TRC Act to the Legislative Assembly in April 2005. After further lobbying by civil society, the TRC Act was finally signed into law on 10 June 2005. The TRC Act Section 9 (b) summarized the problem:

Recognizing that the Chairman…appointed commissioners before the enactment of legislation establishing the Commission…[and] affirming the need for the TRC process to be credible and legitimate and accepted by the nation…the Commissioners appointed by the Chairman…will be vetted.

Accordingly, the first set of commissioners appointed by Chairman Bryant were vetted in accordance with the guidelines of the Act to ensure that no member of the Commission would be “known or perceived as human rights violators or members of groups involved in human rights violations; and without prior conviction for a crime” (Section 11, Liberian TRC Act). Only two of the initial nine commissioners were retained by the new selection panel. Indeed, the initial chair of the initial Commission, Dr. Canon Burgess Carr, did not survive the vetting (TRC report, Vol.2, p142). The vacancies created allowed for seven new commissioners to be selected by a representative panel. It was this “second” TRC, inaugurated by President Ellen Sirleaf Johnson in January 2006 – two years after the “first” TRC – that delivered the report to which Prof. Mutua referred.

However, not all commissions with credibility challenges have recovered. Here, the examples of the DRC and Serbia are worth mentioning. Similar to Liberia’s initial process, in the DRC, seven members of the TRC Bureau were appointed directly by the warring parties following the peace agreement, before the TRC law was promulgated. The seven had formal relations to the groups implicated in the crimes of the war, thereby leading to civil society protest about the integrity of the Commission. According to some observers, commissioner competence and human rights records were also questioned. The government eventually passed a TRC Law that appointed 13 additional commissioners (without removing the first set of commissioners), but this action did not change the negative perception of the Commission. Neither did the appointment of Reverend Jean-Luc Kuye-Ndondo as the president of the Commission: while he was a member of the church, he was presiding over an institution whose moral authority was in question, and besides, some thought he lacked the “stature and charisma needed to provide symbolic unity” to the DRC. Consequently, the TRC was criticized and marginalized, becoming by some accounts a “stinging failure”.

In Serbia, the TRC project faced credibility challenges from which it never recovered. In March 2001, President Kostunica instituted the Yugoslav TRC. The TRC was announced a day before the US was due to certify continuation of financial support, and was therefore seen by some as aimed at appeasing the US. The Commission was lacking on many fronts. First, it was neither consultative nor inclusive: of the initial 19 members appointed, there were “mostly nationalist conservative academics” (Subotic 2007: 96), only two were ethnic minorities, and other civil society groups were under-represented. Second, its mandate was seen as an attempt to attribute blame for the war rather than an attempt to grapple with the consequences for victims. Further, the Commission sought to shed light on a broader Yugoslav crisis from an ethic Serbian perspective. Consequently, some commissioners resigned from the TRC, further affecting the credibility of the exercise. The TRC could not even organize a public hearing on the Srebrenica massacre. It was disbanded in 2003 when the office of the federal presidency was abolished. The conclusion of observers is that in Serbia, the truth commission “brand” is “utterly devalued” (Subotic 2007: 98).

There are significant differences between Kenya and the other TRC projects mentioned above: while Musila points out here that in Kenya there was minimal consultation with NGOs during the drafting of the TJRC Bill, the law nonetheless seemed to contain reasonable procedures for commissioner selection. Section 9 of the Kenyan TJRC Act provided for a selection committee that was constituted by then Justice Minister Martha Karua, and it consisted of nine individuals: seven representatives from different social groups and two representatives from a list of six Kenya-based religious organizations. The role of the selection committee was to nominate the persons for the Commission, in accordance with given selection criteria. The committee selected 15 names in April 2008, from whom the president appointed six commissioners. However, upon the appointment of the commissioners on 22 July 2009 under the guidance of Ambassador Bethuel Kiplagat, prominent survivors past state violence protested, citing Kiplagat’s prominent role in the Moi regime. They launched a law-suit against him. In this context, some observers called for the deputy Chair, Ms Betty Murungi, to resign lest she tarnish her reputation.

Given the detailed nature of the selection process, how could controversial individuals have been picked to the Commission? One answer may lie in a minor change in the criteria for Kenyans to serve on the Commission. While an earlier version of the Bill stated in Section10 (5)(c) that commissioners must not have been “involved, implicated, linked or associated with the perpetrators or supporters of the acts, crimes or conduct under investigation”, the final TJRC Act states that the commissioners must not have been “involved, implicated, linked or associated with human rights violations of any kind”. With this change, it was possible for possible actors associated with “perpetrators or supporters” of human rights violations within in the Kanu regime to become commissioners. Another reason why controversial commissioners were picked despite a seemingly rigorous selection process may be simply mathematical: the nature of real compromise required for 9 individuals to select 15 names can be negligible.

Perhaps a bigger challenge to the TJRC has been the vilification of its mandate, as “reconciliation” is increasingly seen as a dirty term, synonymous with “impunity”. While these terms have flexible, politically-contextual meanings, the current negative perception of the TJRC may stem in part from the possibility that the opportunity cost of the Commission is significantly higher in 2009 than it was in 2003, when Kenyans initially advocated for the TJRC: in 2003, the alternative to the TJRC was the continuation of the status quo. In 2009, in light of the Waki report and the subsequent public debate, the alternative to the TJRC is seen as prosecutions. This higher cost makes compromise harder to accept. Consequently, erstwhile advocates of the TJRC such as the National Council of Churches of Kenya (NCCK) state that they “shall neither recognize [the TJRC’s] work nor engage with it when it commences its proceedings unless the cabinet reverses its decision[to expand the TJRC’s mandate and representation] and either refers the matter to the International Criminal Court at The Hague or establishes a credible and effective local tribunal.”

Is there a risk that the TJRC brand may become “utterly devalued” or a “stinging failure” in Kenya, as was the case in Serbia and the DRC? From the three cases above, it appears that truth commissions can succeed, underperform or fail depending on how credibility challenges are addressed. Further, these three contexts highlight that “credibility” is often used as a synonym of “legitimacy”. If a legitimate institution is one that, among other things, pursues the general interest as understood by citizens (rather than by power-holders) and whose authority is consented to by relevant constituencies (Beetham 1991), the Kenyan TJRC faces a legitimacy gap. And to the extent that legitimacy has a reciprocal relationship with effectiveness (of the institution in itself, outside any claims it may make about broader social impact and consequences), this gap ought to cause concern. Prominent Kenyan victims, whose cooperation is thought to be critical for the success of the TJRC, have publicly withdrawn support from the institution, and cast into doubt the ends it seeks. Such a withdrawal can affect the quality of collaboration the institution receives from such stakeholders, and can result in the institution expending more time and resources counteracting the effects legitimacy gaps, rather than on the difficult task of historical clarification. It is for this reason that the concerns about credibility should not be dismissed lightly.

Yet the official response to these challenges has been weak and uncertain, suggesting that the government hopes the questions will soon disappear. The government suggested (then discarded) a revision of the mandate of the TJRC. It also suggested expanding the number of commissioners, a suggestion that was broadly rejected because it was read as having ethnic implications. The latter proposal may have been useful: for instance, on the list of rejected potential commissioners were two clergymen – Archbishop Benjamin Nzimbi and Reverend Timothy Njoya. Given the centrality of Christianity in Kenyan life, the absence of religious representation in the Commission may be an oversight whose consequence has been the Church’s rejection of the TJRC. However, there has not been a comprehensive suggestion of how to address the matter of the credibility of the individuals already on the Commission. If the DRC has any lesson to offer the Kenya case, it is that leaving this issue unaddressed can undermine the TJRC’s moral authority. Nor has any measure been taken to respond to the conflation in people’s minds of reconciliation and impunity in the absence of prosecutions.

Before making recommendations of potential avenues for relegitimation for the TJRC, it is important to note that while the basic argument of this essay is that it may be necessary for a commission to be credible in its initial set-up, it does not imply that such credibility is sufficient for the exercise to be successful in giving robust recommendations. Neither does it suggest that such robust recommendations actually make any difference for reconciliation, human rights and democracy (or other goals of transitional justice), as such an assertion would require an analysis of the interplay among broader political and social conditions beyond the scope of this essay.

Nonetheless, it is reasonable to think that identifying and addressing current and potential credibility challenges can increase support for the TJRC. If dissatisfaction about some TJRC office-holders is changing to disaffection towards the institution as a whole, a procedurally transparent replacement of those commissioners whose integrity is in real question may help the project regain its moral authority. While it is impossible for the Commission to please everyone, the language of reconciliation is often invoked in a moral register, and it would seem foundational that the TJRC’s office-holders are held up to the same standards that the people it is created to serve deem appropriate. Procedurally, the TJRC selection committee has the authority under Section 9(2)(b) of the Act to “consider an application for the removal of the chairperson or a commissioner”. To date, there are no reports of the selection committee convening to address these concerns expressed by sections of the population. However, if compelling reasons make a revision to the institutional infrastructure of the TJRC undesirable to policy makers (even after they take into account the potential costs of embarking on the institution without moral support), then alternative avenues should be explored through which to give the relevant constituencies opportunities to shape and “own” the TJRC process. As experts of Liberia point out, the “new” Liberian TRC had to endure further credibility challenges in the course of its work, including disputes over how to hold public hearings, disagreements over which victims would testify, and tense relationships between the commissioners and their advisors. The Kenyan TJRC can anticipate these potential future challenges to its credibility and establish appropriate participatory procedures. For instance, the TJRC could consult with victims on different ways to conduct public hearings, as models range from Ghana (formal court-room reproductions where perpetrators could cross-examine victims) to Peru (more informal sessions where victims could narrate their stories as they pleased). Finally, for Kenyans more broadly, the cost of supporting the TJRC may be perceived differently (and the flexible meaning of reconciliation adjusted accordingly) if other judicial measures are also implemented.

Further Reading:

Beetham, D. (1991). The legitimation of power. Macmillan.

Subotic, J. (2007). Hijacked Justice: Domestic Use of International Norms. University of Wisconsin–Madison.

*Lydiah Kemunto Bosire is reading for her doctorate in politics at the University of Oxford, with a research focus on transitional justice in Kenya and Uganda. She is also the co-founder of Oxford Transitional Jusitice Research (OTJR). Previously, she worked at the International Center for Transitional Justice, the WHO and the UN

This is the second of three essays on misconceptions in debates over transitional justice in Kenya. The first essay considered complementarity and the Truth, Justice and Reconciliation Commission (TJRC), and argued that, if Kenya’s situation was otherwise admissible to the International Criminal Court (ICC), the TJRC in its current form is unlikely to satisfy the Court’s complementarity test. This essay considers the discussion on domestic prosecutions in Kenya. It points to some challenges in the proposed relationship between the Imanyara Bill for the Special Tribunal for Kenya (STK) and the ICC, and argues that the Bill envisions a relationship with the ICC which is both outside the Rome Statute and the current, narrow practice of complementarity. Kenyan victims and anti-impunity advocates depending on the ICC to give the STK teeth are likely to be disappointed unless the Court embraces a broader, more politically-conscious engagement with Kenya. The next essay in the series will make the case for such an engagement.

The Waki Report recommended the STK as the institutional response required to prevent the ICC’s involvement in Kenya. That initial coercive tactic failed to catalyse domestic prosecutions when the Kenyan Parliament rejected a constitutional amendment Bill brought by former Justice Minister Martha Karua in February 2009. Subsequently, in what appeared to be “promises as usual”, the government agreed by the end of September to give the ICC Office of the Prosecutor (OTP) a summary of progress towards investigations and proceedings conducted “through a special tribunal or other judicial mechanism adopted by the Kenyan Parliament”. In the event of a failure to institute domestic proceedings, the Kenyan government would refer the situation to the Court in accordance with Article 14 of the Rome Statute.

If the initial failure of the Waki envelope to trigger a domestic judicial response resulted in part from the fact that domestic actors perceived the ICC to be a remote threat, that perception was expected to change when the Waki list of suspects was given to the ICC. The ICC’s opening of the Waki envelope became the second (bigger) “stick” in the hands of prosecutions advocates. This stick served to frame all political struggles in the language of “impunity” v “justice”, as NGO statements cautioned that Kenya’s failure to institute “genuine” proceedings that meet “international standards”- terms whose meanings were assumed to be objectively understood – meant that the ICC would now “step in” and “take over”. Nonetheless, the coercive force of the Court receiving the list (and the accompanying headline photographs of the Prosecutor scrutinizing the names of suspects on the list) turned out to be overestimated, and the Cabinet resolved to reject the STK, cooperate with the ICC, strengthen the domestic judiciary, and revisit the mandate of the TJRC.

But the direct involvement of the OTP was not without effect. It provided the background against which the use of the apolitical discourse of “genuine” proceedings in accordance with “international best practices” by the Minister of Justice in his push for his vision of the STK within Cabinet meetings resonated. This, combined with the unrelenting international focus on the desirability of domestic trials, contributed to shifting domestic anti-impunity advocates from a perspective which primarily endorsed ICC-only action, to one which included the possibility of robust domestic prosecutions. This is how Imanyara explained his personal change in preference from “The Hague option” to the STK: an independent domestic process obviated the need for an ICC-only position. Accordingly, the Imanyara Bill (of 24 August 2009) proposed a two-tiered structure where the ICC and the STK would operate concurrently in a division of labour: the ICC would prosecute authors of crimes, and a domestic process would take charge of lower perpetrators. When asked about the Bill in an interview with The Nation, Imanyara summarised the relationship as follows: “In our revised Bill, we have introduced a clause to leverage on the International Crimes Act, which domesticates the ICC, to have the ICC try the masterminds while the tribunal goes for the small fish.” In this innovative partnership, Imanyara concluded, “Serious crimes will just have to go to The Hague.” This does not intend to give an historically efficient reading of the process– at the governmental level, a cynic might represent what happened as simply a case where sections of a fractured elite who were politically unhappy about domestic prosecutions for a number of reasons unrelated to “international standards” suddenly found in the ICC and subsequently the STK a justificatory framework for their uncompromising political positions and a possibility of refashioning themselves as reformists. Instead, it sketches one version of how the ICC was eagerly woven into the narrative of what accountability in Kenya must look like, and how it found its way into Imanyara’s STK and into civil society discourse (see the Law Society of Kenya here and Nobel Laureate Wangari Maathai here).
Leaving aside the discussion about the accuracy of the analogies upon which Imanyara’s team draw in structuring the STK (“Remember, the Sierra Leone government worked with the United Nations to set up their tribunal. The Rwanda tribunal was set up by a resolution of the UN Security Council. We’ll work with the ICC”), this proposed relationship is captured in two sections of the Bill. Section 3(a)(2) of the Constitutional Amendment Bill provides that the ICC will maintain

concurrent jurisdiction to investigate, indict and prosecute persons bearing the greatest responsibility and the Tribunal may at any stage, make a referral to the International Criminal Court as set out in Article 14 of the Rome Statute… if it deems it expedient….

Further, Section 7(5) of the proposed STK statute outlines the jurisdiction of the Court, and states that the

Tribunal may invoke Article 14 of the Rome Statute if deemed necessary and for avoidance of doubt it is declared that the person or persons on the list submitted to the International Criminal Court by the Chair of the Panel of Eminent African Personalities shall be deemed to have been referred to the International Criminal Court.

While some commentators hail this proposed relationship as one that “cleverly marries the ICC and the tribunal routes to justice” and “leaves opponents of justice without any credible arguments against it” (see Human Rights Watch), both these sections articulate a relationship with the Court that goes beyond the confines of the Rome Statute. Article 14(1) of the Statute provides that “a State Party may refer to the Prosecutor a situation in which one or more crimes within the jurisdiction of the Court appear to have been committed….” The referral provided for by the Statute is from a “State Party”, not an independent institution such as the STK (not even if the STK is mandated by the Kenyan Parliament). It is such an official state referral that the minutes of the ICC Prosecutor’s meeting with the Kenyan Ministers envisioned, in which they stated that Kenya will demonstrate its progress towards ending impunity and “in the alternative…the Government of Kenya will refer the situation to the Prosecutor” (emphasis added). The head of the Jurisdiction, Complementarity and Cooperation Division of the ICC was also quoted in the Sunday Nation stating that the OTP expected to meet with the government at the end of September over the referral. It is because of developments such as these that Adam Branch has labelled the Court “anti-democratic” because, he argues, in Uganda, the Court served the unilaterally expressed interests of President Museveni against the wishes of the Ugandan people and their Parliament.

Further, contrary to what the Bill suggests, the submission of the Waki list cannot constitute a referral, but rather is a transmission of “communications” to the Prosecutor; the list constitutes one more piece of information to be consulted (alongside the reports from NGOs, etc) in the Prosecutor’s determination regarding whether there exists a reasonable basis to open an investigation. These procedures are explained in great detail in the ICC paper, ‘Annex to the “Paper on some policy issues before the Office of the Prosecutor”: Referrals and Communications’.
A further challenge to the STK’s proposed structure is that it pays little attention to the contingent nature of the ICC’s involvement in a situation. Even in instances of sufficient gravity, the determination of whether as a state is “unable” or “unwilling” to conduct “genuine” investigations can only be made by the Court. In Kenya, “gravity” will also have to be determined (see here for an assessment of the likely challenges in proving gravity in Kenya). Given the nebulous nature of all the definitional terms and the conditions under which they are sufficiently satisfied to give the Prosecutor reasonable basis to proceed, there is an arguable risk that Kenyan civil society and other pro-prosecutions forces that rely on the ICC for the prosecution of those most responsible will be disappointed. In a 2007 policy address in Nuremberg, the Prosecutor clarified the role of the Court:

My duty is to apply the law without political considerations. I will present evidence to the Judges and they will decide on the merits of such evidence. And yet, for each situation in which the ICC is exercising jurisdiction, we can hear voices challenging judicial decisions, their timing, their timeliness, asking the Prosecution to use its discretionary powers to adjust to the situations on the ground, to indict or withdraw indictments according to short term political goals. …These proposals are not consistent with the Rome Statute.

While what was most relevant at the time of this address was the peace process between the Lord’s Resistance Army(LRA) rebels and the government of Uganda (where many advocates argued that the LRA would not sign the peace agreement unless the ICC arrest warrants were deferred, and the ICC Prosecutor reminded them that his mandate did not extend to such ‘political’ considerations), the spirit of the assertion remains the same for Kenya: it is the sufficiency of the evidence, not the special political situation of Kenya nor the role scripted for the Court in the STK that will determine whether and how the Prosecutor will proceed.
Whereas the legal issues raised above (see more criticism here) can be amended in a future version of the Bill, the STK’s broader challenge of proposing a relationship outside the current (narrow) practice of complementarity remains. To date, the Court’s practice of complementarity has involved attempts to catalyse domestic prosecutions through threatening judicial intervention using the proprio motu powers of the Prosecutor; setting standards for “genuine” domestic proceedings whose disregard can trigger a judicial intervention by the Court; and acting as the platform of last resort in cases where the national authorities are unable or unwilling to prosecute (Perrin 2006). Given this practice, what the Imanyara Bill calls “concurrent jurisdiction” requires a much wider interpretation of complementarity.
To be sure, the Bill derives its strength mainly from the proposed changes in domestic power structures that are not addressed in this paper: among other things, it seeks to remove the potential influence of the executive on the judiciary, makes the STK independent of the Kenyan High Court, and requires the resignation of officials who are under investigation. However, critical aspects of its performance – such as the prosecution of the “big fish” – appear to depend on a collaborative relationship with an unpredictable ICC. Given the current practice of complementarity, this proposed structure may be mistaken. This is not to advocate for a particular prosecutorial platform, nor to suggest that prosecutions secure particular social outcomes; such assertions would require an analysis that goes beyond the technical processes that are the focus of this paper. Rather, it is to point out that, if domestic prosecutions through the STK are thought to require external coercive force in order to be successful (in themselves, quite apart from the social impact they may or may not have), the current practices of the Court make it an unpredictable source of such coercive force.

The STK Bill – with the ICC written into it – constitutes another attempt at coercing the Kenyan government to institute domestic proceedings. This time, the OTP (and the ICC by extension) is directly implicated in the Kenyan narrative, and is likely to be affected by both the success and failure of Kenya’s anti-impunity project. Consider one likely scenario: if Kenya fails to establish “genuine” domestic proceedings by the end of September, it has agreed to refer the situation to the ICC in accordance with Article 14 of the Rome Statute. If the government makes the referral (rather than trying to prove the complementary nature of any measures that may be underway by that point, including the TJRC), paradoxically, such a referral would signal a failure of the Court in catalyzing complementarity, and would allow the government to outsource to the Court the financial and political costs of domestic prosecutions (Burke-White, 2008). Further, if, following such a referral, the Prosecutor analyses the Kenyan evidence, finds no reasonable basis to proceed, and communicates such a finding back to the state, the Prosecutor can find himself in a moral hazard of potentially emboldening domestic perpetrators. Such a determination is also likely to reduce the probability of successful domestic prosecutions. Consequently, the Court could lose further legitimacy in the eyes of victims and civil society (even despite the fact that the Prosecutor can always revise his decision not to proceed in light of new information), who may question, as victims elsewhere have, whether the Court serves their interests (see Odinkalu’s argument here). Under these circumstances, and against the background where important constituencies of the Court are increasingly engaged in public demonstrations withdrawals of consent to the institution, the ICC must engage in Kenya in a politically conscious manner. In this spirit, the Imanyara Bill may offer the beginnings of a model for operationalising a broader understanding of complementarity, or perhaps revisiting the ICC’s neglected vision of “positive” complementarity. It is such a politically-aware engagement that will be the focus of my third essay.

Further Reading

Burke-White, W. W. (2008). Proactive complementarity: The International Criminal Court and national courts in the Rome system of international justice. Harvard International Law Journal.

Perrin, B. (2006). Making Sense of Complementarity: The Relationship between the International Criminal Court and National Jurisdictions. Sri Lanka J. Int’l L., 18, 301.

Stahn, C. (2005). Complementarity, Amnesties and Alternative Forms of Justice: Some Interpretative Guidelines for the International Criminal Court. J Int Criminal Justice, 3(3), 695-720.

*Lydiah Kemunto Bosire is reading for her doctorate in politics at the University of Oxford, with a research focus on transitional justice in Kenya and Uganda. She is also the co-founder of Oxford Transitional Jusitice Research (OTJR). Previously, she worked at the International Center for Transitional Justice, the WHO and the UN

The Kenyan Cabinet recently resolved to put forward the Truth, Justice and Reconciliation Commission (TJRC) as a way to address the post-election violence. In this first of three essays looking at some of the misconceptions in the transitional justice debate in Kenya (the next two contributions will consider domestic and international prosecutions respectively), I evaluate whether the establishment of the TJRC makes the Kenyan situation inadmissible before the International Criminal Court (ICC). Given the state of the debate about whether non-prosecutorial measures can demonstrate “an intent to bring the person concerned to justice”, and the increasing delegitimisation of the TJRC, the commission is unlikely to be seen as fulfilling the complementarity criteria of the ICC.

The debate about “credible” independent processes that “meet international standards” that has dominated Kenyan discussions about accountability options is in part a debate about complementarity – the idea in the Preamble of the Rome Statute of the ICC that the Court “shall be complementary to national criminal jurisdictions”. The complementarity principle preserves the primacy of domestic prosecutions for those responsible for international crimes. Assuming “sufficient gravity” (an important consideration I do not address in this essay), the Court can only act under Article 17(1)(a) if Kenya is “unwilling or unable genuinely to carry out the investigation or prosecution”. Unwillingness is defined in Article 17(2) as the initiation of proceedings created “for the purpose of shielding the person concerned from criminal responsibility”, or in a context where proceedings are unduly delayed or conducted in a manner “inconsistent with an intent to bring the person concerned to justice”. Inability is defined under Article 17(3) to include a lack of institutional capacity, as well as the “availability” of the national judicial system – in the sense of enabling legislation, for instance – to carry out proceedings.

Does the TJRC meet the complementarity criteria? Put differently, can a non-prosecutorial mechanism conduct “genuine” investigations with the “intent to bring the person concerned to justice”?

The dominant perspective is that non-criminal proceedings generally are inconsistent with the complementarity doctrine. Under Article 17(1)(a), a country can argue that a case is inadmissible before the ICC on the grounds that “the case is being investigated or prosecuted by a state which has jurisdiction over it”. As Scharf offers, because the Article “requires an investigation but does not specify a criminal investigation…a state could argue that a truth commission (especially one modeled on that of South Africa) constitutes a genuine investigation” (Scharf 1999:525). However, he proceeds to show why this could be a difficult line of argument to sustain, particularly because the Article further states that investigations should be consistent with “an intent to bring the person concerned to justice”, and this phrase can be interpreted as requiring criminal proceedings. Similarly, under Article 20 which provides that a person who has been “tried by another court” shall not appear before the ICC, a country can argue that a person who has appeared before a truth commission is ineligible to stand before the Court. However, this argument would still have to demonstrate an intention to bring a person to justice. Besides, a truth commission is not a “court” (Scharf, 1999:525-526).

The view that prosecution is essential to complementarity was held by many in the anti-impunity community in the situation of Northern Uganda. Here, it is worth noting the exchange between those who suggested that in a context where prosecutions were thought to have the potential to derail a critical peace process, the Court could, within its complementarity provisions, defer to alternative justice processes, and those who argued that such a deferral would amount to an abdication of the Court”s core obligation to prosecute (a similarly rich discussion continues here and here with reference to Darfur). While this discussion was mostly appealing to prosecutorial discretion under Article 53, where the Prosecutor can determine to halt proceedings if they would not serve “the interests of justice”, the views expressed against non-prosecutorial measures were general to the conduct of the Court. According to Human Rights Watch (2005):

the prosecutor may not fail to initiate an investigation…because of developments at that national level such as truth commissions, national amnesties, or the implementation of traditional reconciliation methods, or because of concerns regarding an ongoing peace process.

Leading advocacy organisations (including Amnesty International, Human Rights Watch) argued that to make determinations about the merits and legitimacy of alternatives to prosecution would amount to the Prosecutor making a political judgment, which would open the Court to potential manipulation. From this view, the complementarity language of the statute does not distinguish democratically demanded amnesties (such as those of the South African TRC) from the illegitimate amnesty of the Pinochet regime in Chile, viewing them both as unacceptable (Rodman 2009: 103). This position was also confirmed by Judge Richard Goldstone, the former prosecutor at the International Criminal Tribunal for the former Yugoslavia, who argued that if the South African TRC were implemented in this age of the ICC, it would not be acceptable. He argued that countries must prosecute, political feasibility notwithstanding.

Despite the dominance of this narrow view of complementarity, a competing view argues for a role for non-prosecutorial processes in the age of the ICC, and advocates for a broader understanding of the notion. This second view starts from the perspective that the Court was not established to overturn and contradict the decisions of democratic states where, for instance, victims may decide to set up credible non-prosecutorial processes, or, as in South Africa, pursue prosecutions only against those who do not receive amnesty. Further, this argument goes, a case can be made that the “interests of justice” pursued by the Court could be broadened to include the restorative justice pursued by institutions like TRCs by showing that such alternative mechanisms are not “just a way of protecting the guilty from prosecution” (Roche 2005:568-569), but rather valid avenues through which to address calls for truth, reparation and reconciliation. Further, given that the participation of perpetrators in TRCs is thought to be critical to the success of these mechanisms, the ICC could target those who have not received amnesty through this process, thereby providing an incentive for such perpetrators to participate in national TRCs. Another suggested approach for collaboration between the ICC and a TRC could be one in which the ICC collaborates with it to address those most responsible for violations (rather than just those who do not receive amnesty). Here, cooperation of the perpetrator with the TRC “could be a mitigating factor taken into account by the ICC Judges in sentencing” (Roche 2005: 575).

The call for collaboration between the ICC and legitimate non-prosecutorial measures positions itself as being pragmatic and principled. The argument is pragmatic in the sense that in a context of scarce resources, it would suggest that collaborative relationships with mechanisms like TRCs can be useful in ensuring as many victims as demand alternative processes can receive them. Further, in a context where scholars on the ICC are suggesting that the Court should offer assistance to states to carry out their domestic prosecutions in a policy of “proactive complementarity” (Burke-White, 2008) even where it is clear that national processes in many resource-poor countries with weak justice systems will most likely fall short of “international standards”, this broader conceptualisation of complementarity may be timely. The argument also tries to shield itself against attacks of politicisation by proposing a principled process of determining legitimate non-prosecutorial processes: those with the broadest support possible in a society, and that are inclusive, supportive of victims, and complementary to other political reforms. Further, it suggests, credible alternatives are those whose merits would be vouched for by the broadest level of civil society (Roche 2005: 574-579).

The debate between the narrow and broader interpretation of complementarity continues part of a broader ongoing discussion about politics and the ICC: while the Prosecutor remains firm that his duty is to “apply the law without political considerations”, one set of critics tell him that this position ranges from unhelpful to dangerous, and another set argue not all non-prosecution amounts to a breach of international legal obligation. But serious shortcomings remain unaddressed in both the narrow and broader view of complementarity – the former can be antidemocratic, while the latter can underestimate the agenda-setting power of international civil society in supplying empirically unproven “universal” models to local communities.

Nonetheless, even if the Court were to find a symbiotic relationship with institutions like TRCs, the Kenyan TJRC in its current form would be unlikely to be meet the proposed principled criteria in the broader interpretation, in part because those whose support is necessary for the TJRC to be legitimate – mainly the victims and civil society – have withdrawn their support from the institution. Gravity aside, an increasingly delegitimised, non-prosecutorial mechanism is unlikely to keep the ICC away; domestic prosecutions can.

*Lydiah Kemunto Bosire is reading for her doctorate in politics at the University of Oxford, with a research focus on transitional justice in Kenya and Uganda. She is also the co-founder of Oxford Transitional Jusitice Research (OTJR). Previously, she worked at the International Center for Transitional Justice, the WHO and the UN.

Further Reading

Human Rights Watch. 2005. The Meaning of “The Interests of Justice” in Article 53 of the Rome Statute. Human Rights Watch, June.
Online: www.iccnow.org/documents/HRWInterestsOfJusticeJun2005.pdf.

Burke-White, W. 2008. Proactive complementarity: The International Criminal Court and national courts in the Rome system of international justice. Harvard International Law Journal.

Roche, D. 2005. Truth Commission Amnesties and the International Criminal Court. British Journal of Criminology 45, no. 4 : 565-581.

Rodman, K.A. 2009. Is Peace in the Interests of Justice? The Case for Broad Prosecutorial Discretion at the International Criminal Court. Leiden Journal of International Law 22, no. 01: 99-126.

Scharf, M. P. 1999. The Amnesty Exception to the Jurisdiction of the International Criminal Court. Cornell International Law Journal 32: 507.

The handover of the names of the suspects behind Kenya’s post-election violence to the International Criminal Court (ICC) opens an uncertain chapter in the country’s history of political violence. This development has generated a vibrant debate among Kenyans: What should accountable politics look like? What is the role of transitional justice in getting us there? Under what conditions might the current turn of events contribute to the country’s long term stability?

This forum offers a space where concerned Kenyans can come together with a range of experts, scholars, practitioners, and commentators to discuss fundamental questions about how Kenya got here, and the strategies necessary to move the country forward. This essay provides an overview of recent debates on violence and accountability in Kenya and summarizes the first set of contributions to this forum.

Any policy aimed at addressing Kenya’s current crisis necessarily assumes the existence of a clear understanding of what caused the violence in the first place. While some scholars explain the recent cycle of violence as a manifestation of the negative side of electoral democracy, where elites fight over control of the state in a context of zero-sum politics, others emphasize the trend of informalizing violence, where elites set up, control, or manipulate an alternative security infrastructure (which, among other things, can be deployed to coerce opponents). Others still find these explanations incomplete, and instead cite structures of inequality, with a particular focus on grievances over access to land and resources. Many of these explanations privilege the agency of the political class in manipulating ethnic cleavages.

Daniel Branch’s essay in this series disagrees with many of these accounts’ focus on elites, as they insufficiently interrogate the agency of ordinary Kenyans in the violence. Normalization of violence, Branch argues, is evidence of a society’s shifting moral landscape: Kenyans increasingly accept violence in a range of arenas as a means of exerting authority. Elite manipulation of that violence to reduce electoral uncertainty forms only one expression of a wider social phenomenon. Branch’s conclusion points to a question that continues to be debated in response to violence by state agents: is there moral and immoral violence? Or is it the case that (as with the dichotomy of political and apolitical violence that Branch finds unhelpful) in time the distinctions dissipate?

Daniel Waweru’s essay also discounts many of the common accounts for the post-election violence, and offers in their place an explanation based on the permeation of the majimboist ideology outside of the political class and into the community. This view carries implications for what is politically feasible in the current considerations of accountability and constitutional reform: Waweru argues that while President Moi informalized violence during his reign as a strategy of strengthening the ethnocentric majimboist fringe, his exit from power terminated state sponsorship for the majimboist project, leading Kalenjin opinion leaders to be more radicalized, and their project of ethnic cleansing more ideological and popularized. Consequently, the very majimboist elites who must come into the political fold for there to be effective constitutional reform in Kenya are the same ones who would be marginalized in processes of accountability. In what appears to be a variation of the ‘peace v justice’ debate that has characterized Sudan, Uganda and elsewhere, Waweru argues that Kenya can have either reform or accountability, but not both.

Nonetheless, Gabriel Lynch’s essay argues that both accountability and reform are essential for Kenya, although she sees little evidence that the state will act differently from previous episodes of violence. Highlighting that reforms to date have been largely superficial and procedural with little focus on how complex issues coalesce, she offers three concerns on which the state must focus: the presidency and its zero-sum politics, impunity and the informalization of violence, and the politics of ethnicity. Further, she points out that the manner in which Kenyan (and African) politics are framed and understood – as ‘good’ citizen v ‘bad’ politician, for instance – misses the different meanings of history, incentives and reciprocity in political processes.

Despite Lynch’s scepticism, the handover the Waki envelope to the ICC has generated a vibrant (and hopeful) discussion on the importance of historical clarification and transitional justice in general, and of prosecutions in particular. However, the Kenyan media is dominated by confusing descriptions of which mechanism is legally feasible or politically desirable. What happens when many Kenyans appear to prefer the ICC and have no trust in a national process; international NGOs prefer a domestic process because, they argue, Kenya has the institutional capacity that can deliver justice with some modifications (although an equally persuasive explanation for this preference from international NGOs may be the general reluctance among many ICC supporters to see the Court in yet another African case); prominent ODM parliamentarians declare their intention to actively sabotage efforts for domestic prosecutions; and cabinet members from both parties argue that the only way is a domestic tribunal because to do otherwise would imply that Kenya is a failed state? Which of these interests should matter more? Who decides? Is it possible for this discussion to emphasize objectives of accountability, leaving processes as secondary considerations?

In all the confusion, another important discussion is glossed over, as Tim Murithi emphasises in this forum: he makes intelligible the reasons why Kofi Annan handed over the envelope to the ICC prosecutor. While the three ministers who went to Geneva have oscillated between shock at an Annan ‘betrayal’ and (reluctant) praise of Annan’s ‘patience’, it remains unclear why Annan acted as he did. Murithi argues that Annan passed the envelope to the ICC because the coalition seemed oblivious to the fact that their disinclination for accountability placed Kenya in a high risk category in the framework of the Office of the Special Advisor of the UN Secretary General for the Prevention of Genocide. In their vacillation between doing nothing, paying lip service to prosecutions or expressing preference for a Truth, Justice and Reconciliation Commission, political leaders exhibited a lack of political vision for meeting the justice needs of victims, thus forcing Annan’s hand.

In thinking about lessons that we can draw from the past violence, the essay by Wanjiru Kamau-Ruternberg analyses how the performance of gendered violence in the form of forcible male circumcision plays into ethnic politics. She argues that circumcision offered a framework for Mungiki violence against Luo men because it was embedded in a narrative of feminizing ethnicities; a narrative was alive in the discourses of Kenyatta, found confidence in the period of the draft constitution referendum, and was ironically embraced by Raila Odinga himself. In this atmosphere, where the feminized could be violated, it was only a matter of time before the gendered ‘ecology of violence’ expanded to include feminized Luo men.

Sisule Musungu’s contribution focuses on the way forward. His summary of a 2000 report on possible future Kenyan scenarios emphasizes the need to avoid the maintenance of the status quo – what the project terms the ‘el nino’ scenario – as the outcome of such a scenario can only be fractured decline. He argues that, much like the late years of the Moi era, Kenya has reached another crossroads, and it might be time to dust off and reconsider the discussions that inspired change a decade ago.

Even so, the possible political outcomes from the current crossroads are not obvious. Might Kenya be the case where the heretofore weak ICC ‘deterrent’ argument gains relevance? For instance, to what extent are shifts in Kenyan political and ethnic alliances a response to a credible threat of prosecutions? Does the potential involvement of the ICC (and the subsequent excitement about prosecutions) have the capacity to de-ethnicize and de-collectivize the post-elections violence, to recast blame from communities to individuals in the political class? Or would prosecutions be inadequate for the multifaceted forms of violence experienced in Kenya? Beyond the ICC, how adequate or appropriate are the proposed transitional justice measures for the Kenyan context? What are the competing interests in Kenya’s project of political reform and accountability, and whose interests are likely to triumph?

These and other questions will be tackled in future essays in this forum. We welcome your reflections and contributions.

*Lydiah Kemunto Bosire is reading for her doctorate in politics at the University of Oxford, with a research focus on transitional justice in Kenya and Uganda. She is also the co-founder of Oxford Transitional Jusitice Research (OTJR). Previously, she worked at the International Center for Transitional Justice, the WHO and the UN.

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