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.

The debates over transitional justice in Kenya have been largely silent on the issue of the Truth, Justice and Reconciliation Commission (TJRC). It is evident that beyond the initial commentary at the TJRC’s inception – when the appointment of some commissioners was vigorously queried – much of the attention has focused on possible prosecution of key perpetrators either in The Hague or by the Special Tribunal for Kenya. One could attribute this fixation with The Hague, Special Tribunal and the envelope delivered to the Prosecutor of the International Criminal Court (ICC) to the contentious nature of the process, and the fact that the Prosecutor’s sights are trained on some Kenyan principals. However, I suggest that this sole focus on prosecutions – and in particular the ICC – is somewhat misguided. Here, I consider, – based on the strength of several legal, policy and practical considerations – why Kenyans need to embrace and own the TJRC.

First, we need a comprehensive view of justice. While prosecutions are necessary, international law requires that we prosecute at least the most serious crimes and those who bear the greatest responsibility. But justice is not complete by only jailing a handful of perpetrators. We need approaches that will attend to the concerns of victims such as reparations, rehabilitation and truth telling. We also need approaches that address the broader national questions that foster inter-ethnic rancor, impede peaceful coexistence and national reconciliation.

Second, the ICC can and will only prosecute a few individuals. Even locally, a Special Tribunal and national courts cannot prosecute all of those who wielded machetes, stones and homemade guns. We must find other options of accountability. This is what the recent endorsement by the ICC Prosecutor for a ‘three-tier approach’ is about.

Third, we must internalize the fact that trials will only yield judicial truth: truth relating to whether a particular individual is guilty or not for a particular crime. Trials will not tell us enough about context and history. Trials reveal little – and will leave unopened the closets of Wagalla, Likoni, Molo, Burnt Forest, Elgon and other places. Crucially, the law will prevent us from prosecuting most – if not all – crimes committed decades ago because of the problem of retroactivity. But at the TJRC, we can open those closets and ensure that the victims of Wagalla at least know the truth, and have an opportunity to receive reparations. We may know who perpetrated the violence, and find ways of ensuring they account for it: for instance we can ban the public figures among them from running for public office.

The TJRC’s process should not be equated to impunity. One of the key functions of the TJRC is to ensure this global truth comes to the fore, is recorded and committed to national memory. It will ensure that no one re-writes history to suit their own beneficial narrative. It will ensure that we come to terms with the past and begin to find ways of moving forward. The events of 2007 occurred partly because we have too many unaddressed instances of injustice.

Fourth, we must embrace the TJRC because we as a nation called for it. We must support it because we need it. The TJRC is not a foreign imposition. It is not even an imposition by politicians or the Kofi Annan talks. The TJRC has deep roots in battered communities around the country. Since at least 1992, Kenyans thirsted for truth. The Mutua Task Force in 2003 said as much. When Kenyans spoke to the Ghai Commission on constitutional reforms (CKRC), many said the same. It is safe to conclude that in 2003, the TJRC’s creation was merely suspended because of political games.

Fifth, truth commissions – unlike trials – operate flexible procedures that allow for the widest possible opportunity for victims to participate, tell their stories and confront their tormentors in a less adversarial and friendly forum. Access to justice is of paramount importance. Few victims can locate The Hague on a map. Even fewer will participate in The Hague or receive reparations should trials commence. The TJRC can – and should – bring a keen listening ear and justice to a town they know near them.

Sixth, as the cases of South Africa, Sierra Leone and others demonstrate, truth commissions have their flaws. While we may want as many people as possible – if not every perpetrator – to be prosecuted for crimes, this may not be possible for some of the reasons suggested above. Further, insisting on prosecutions may not foster truth telling. That is why the Truth, Justice and Reconciliation Act that creates the TJRC, provides that those who testify before the Commission will not incur criminal or civil liability. I remain convinced that without a TJRC, where people can talk without fear of prosecution and other harm, we are bound to repeat the murderous folly of 2007-2008. Truth can set Kenyans free.

The TJRC can only succeed if we want it to succeed. We may not like some commissioners for a range of reasons, but we can make the process our own. We must publicly and critically ask piercing yet constructive questions of the TJRC. Sometimes the sheep know best where the grass is greener, and the shepherd must follow.

However, truth searching must be managed in a transparent and accountable manner. The hunter must have the right tools, and must know their craft. It is important that the Commissioners, especially those inexperienced in matters related to truth commissions, gain a deep understanding of the relevant issues. The TJRC must have the right gear that will enable it not only to open, scrutinize and record what lies within closets of historical injustice, but to commence a process though which at least some of its key consequences can be addressed. It matters what you do with the truth you have unearthed. For these reasons, the TJRC must be supported, but it cannot stand alone. The ICC is relevant, as are the Special Tribunal and the national courts. Moreover, this comprehensive process must be supported by other related measures.

We must address the concerns of victims. This requires different forms of unwavering government and civil society commitment. Those currently grappling with matters of constitutional and other institutional reforms must act diligently and a sense of historic responsibility. They must consider themselves part of, rather than separate from, the broader transitional justice project that is unfolding in Kenya.

* Dr Godfrey Musila is a senior researcher at the Institute for Security Studies in Pretoria, South Africa. A version of this opinion appeared on the Standard on Wednesday 21 October 2009

I don’t envy Louis Moreno-Ocampo in his position as chief prosecutor of the International Criminal Court (ICC). However, that is not to suggest that I will be either sympathetic or forgiving if he botches the investigations of Kenya’s high-profile suspects. This article argues that Kenyans must monitor the approach and performance of the ICC in the country.

When the Rome Statute was enacted in 1998, human rights advocates everywhere enthusiastically gloated over the prospect of a World Court that would finally confront the demon of impunity. We began to believe that leading perpetrators might run but they could no longer hide. Indeed, we thought that prosecuting ‘those bearing the greatest responsibility’ for war crimes, genocide and crimes against humanity, meant that never again would the world witness atrocities on the scale of the twentieth century.

However, seven years after the ICC’s establishment, there is much more scepticism than delight over its capabilities and performance. For most of that time, the Court has lacked staff, resources and international support. Paper pledges and political indifference have characterised most of its tenure.

Beginnings are always difficult and admittedly, much time and effort have gone into establishing the Court and enlisting member states. Currently, 110 states have ratified the Rome Statute. Missing in that list, however, are such superpowers as India, China, Russia and the United States. No wonder then that US Ambassador to Kenya, Michael Ranneberger, could issue only puerile threats about the reform agenda, and have nothing of substance to say about impunity and support for the ICC. Regrettably, this point was missed by most commentators in their debate on the letters sent by the US to blacklisted Kenyan politicians.

Lacking support from the major powers, Moreno-Ocampo has spent most of his time acting more like a diplomat than a criminal prosecutor. His strategy has focused on persuasion and co-operation rather than enforcement of the Rome Statute. In fairness, he has had little option as the ICC mandate may well be clear and precise but it lacks enforcement powers. In other words without its own police force, the Court is totally dependent on international co-operation to apprehend suspects.

As a result, he has been reduced to going about his work by trial and error. However, we have witnessed more errors of judgment than court trials in the last seven years. Indeed the only trial currently proceeding in The Hague is that of little known Thomas Lubanga of the Democratic Republic of Congo (DRC), and that case is moving at a snail’s pace.

Moreno-Ocampo hardly got off to a dream start in 2004 with his handling of the conflict in neighbouring Uganda. Instead of using his prerogative powers, he sought an invitation from the Uganda government to investigate atrocities in northern Uganda. President Museveni gladly accepted the opportunity to co-operate, since he believed the ICC would focus only on atrocities committed by Joseph Kony’s Lord’s Resistance Army (LRA) with no investigations of atrocities committed by the Ugandan army. To date, the ICC’s prosecutorial strategy has mirrored Museveni’s expectations. The ICC got its first state referral case and Museveni got another weapon to attack the LRA. Moreno-Ocampo was thereafter widely accused of reluctance to prosecute government officials.

However, in fairness, the indictments against Kony and four of his rebel leaders did have an impact on the war in the region. The LRA became increasingly isolated as Sudan could no longer grant it a safe haven, and with the signing of the Comprehensive Peace Agreement in 2005, Khartoum was obliged to disarm all militias and maintain peace. Consequently, Kony and company were forced to the negotiating table. Their arrests have remained elusive but the atrocities have considerably reduced.

The ICC has also been accused of targeting African states. However, the cases of Uganda, DRC and Central African Republic have all been state referral cases. The case of Sudan, however, represents a serious change in approach. The Sudanese indictments came as a result of a 2005 UN Security Council Resolution, as Sudan has not ratified the Rome Statute. A UN resolution ostensibly has world backing and Moreno-Ocampo used that leverage to remove his kid gloves and openly indict current state officials for the first time in the ICC’s history.

The first warrants of arrest for Sudan were issued for Minister Ahmed Haroun and Janjaweed leader Ali Kushayb in 2007. On 4 March 2009, the Pre-Trial Chamber granted Moreno-Ocampo’s request to issue a warrant of arrest for President Bashir. That marked the most significant achievement of the ICC to date as a sitting head of state was indicted for the first time. It sent shock waves across the continent and brought world attention to the ICC and Moreno-Ocampo, who had accused Bashir of ‘exterminating his own people’.

At the African Union (AU) summit in Libya in July, continental leaders said they would not co-operate in the arrest of Bashir. In reality the political leaders wanted to protect their allies and worried they could be the next ones arrested.

So the Kenyan case comes at a very significant moment in the ICC’s development. The Chief Prosecutor appears to have grown in confidence and is anxious to have a high profile case to garner international support for the Court. The question is whether he can perform and deliver. The Kenyan case has the potential to make or break the ICC and Moreno-Ocampo knows that.

To date, the ICC has at best operated as a deterrent. The stigmatisation of naming and shaming sitting government officials has spread trepidation everywhere. Arrest warrants have considerably reduced the likelihoods of atrocities and that is a considerable achievement. Yet, the Court was established to prosecute and punish and in that respect it has failed to do justice to victims. Moreno-Ocampo himself has stated that ‘arrests are essential for the ultimate efficiency and credibility of the court’.

The ICC cannot be allowed to fail in Kenya. More investigators and professional staff need to be employed while a regional office must be established as a matter of urgency. The International Criminal Tribunal for Rwanda (ICTR) is scheduled to wind up its hearings in Arusha at the end of this year. Would the Tanzanian city not be an excellent venue for ICC regional offices and local tribunal chambers? Elaborate plans for witness protection are also essential if we recall that after a commission of inquiry into the assassination of Dr Robert Ouko, 42 witnesses ‘died’ in a few years.

Kenyans have great faith in the ICC’s ability to prosecute the principal perpetrators of the post-election violence. Those who suffered and survived, the internally displaced persons (IDPs) and the families who lost lives and livelihoods deserve the best justice the world can offer. However, when the ICC begins its work, we must not let the virtual court of the world’s political powers allow political expediency to take over at a critical stage in the proceedings. That is why we must treat with suspicion European, American and UN pledges to end impunity. This case is about Kenya, and Kenyans must not sit back passively and wait for the ICC to set the pace for investigations and prosecutions. They must be pro-active on every front to ensure that we have a satisfactory outcome. Kenyan civil society must monitor Moreno-Ocampo’s performance from the outset and remind him and the ICC that they are also on trial in this country.

*Gabriel Dolan has worked in Kenya since 1982, mostly with Catholic Justice and Peace Commission on issues of human rights. Currently, he works on the rights of slumdwellers’ in Mombasa.

gdolan54@gmail.com

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

When a Kenyan Cabinet minister suggested in early 2007 that perpetrators of corruption be pardoned if they confessed their guilt and returned the spoils, there was surprisingly little public reaction. This was perhaps taken with a pinch of salt given that Kenyan politicians are good at talking but then doing nothing. But when former anti-corruption chief John Githongo (accused by some of behaving like a drama queen and self-appointed high priest), made a similar statement in mid August 2008, his view made headlines that drew sharp reactions. One opinion piece employed the headline, “Kenya to become a Looters’ Paradise.” Githongo, who fled to Britain in 2005, claiming he feared for his life after accusing senior members of President Mwai Kibaki’s government of massive looting, had observed that past inquiries to establish culpability in Kenya had not only delayed justice but often made accountability much more difficult. As the government’s permanent secretary for ethics and governance, he exposed the notorious Anglo-Leasing scandal, which involved state contracts worth more than $1bn being secretly awarded to phantom firms. The exposure forced the resignation from Cabinet of several ministers closely associated with President Kibaki, including Chris Murungaru, David Mwiraria and Kiraitu Murungi, although the last two were later reinstated, after inquiries failed to find them guilty. Interestingly, Githongo’s amnesty call received support from the then Justice and Constitutional Affairs Minister, Martha Karua, who observed that granting amnesty was the only sure way for the government to win the war against corruption. Karua promised to have the Cabinet approve laws to grant amnesty in exchange for the stolen wealth. Previously considered a member of Kibaki’s inner circle, Karua resigned in April 2009, before the amnesty law could see the light of the day, citing frustrations in discharging her duties. The question that emerges is: what are the prospects for corruption prosecutions in Kenya? This paper argues that while corruption is one of the most significant contributors to structural inequalities, extreme levels of poverty, and the decayed state of Kenya’s economy, there are a number legal and political constraints that make prosecutions unproductive. Instead, the country should consider using conditional amnesty to recover the stolen property and public funds.

In the course of debates on the amnesty-for-economic crimes proposal, members of civil society accused those behind the call of disingenuity and being motivated by vested political interests. Mwalimu Mati of Mars Group Kenya, an anti-corruption pressure organisation, opposed the proposal, arguing that the Kenyan government had consulted no one about abandoning its duty to investigate and prosecute crimes of corruption. He maintained that by supporting Githongo’s proposal, the government was acting as if “Kenyans had nothing to do with decisions on their own resources which were stolen from them.” Mati argued that the amnesty provision would give economic criminals and looters of public funds “a get-out-of-jail-free card while hungry chicken thieves continue to be automatically sent to jail to pay for their petty crimes”. Writing in the Business Daily newspaper, Jim Onyango likewise observed that the plan to offer amnesty to the architects of past corruption could wipe out the taxpayers’ hopes of recovering more than KSh200 billion (about 2,909,937,160 USD) lost to plunderers in the past two decades. Githongo’s suggestion was also dismissed by another columnist as laughable: “If I steal a mobile phone but could be let off the hook if I make restitution, then we make a mockery of the judicial system. Theft has to be punished no matter what.”

While prosecuting perpetrators of past economic crimes remains appealing to the majority of Kenyans, several past and present factors pose monumental challenges to this strategy. Many of the cases involving influential individuals have often ended up in acquittals due to technicalities or insufficient evidence, as evidence is normally destroyed or corrupted beforehand. Indeed many past cases of grand corruption in Kenya remain unresolved, with little to show from the myriad of government anti-corruption initiatives. This is certainly not a problem unique to Kenya: in most developing countries with weak institutions, attempts to use the judiciary and ordinary criminal law to fight large-scale corruption have often failed due to procedural technicalities employed by defence lawyers, lethargic prosecutions, and ingratiating judicial systems.

In Kenya, the problem is illustrated by one of the Commissions of Inquiry set up by the Kibaki administration to investigate the ‘Goldenberg scandal’, a case in which the Moi government lost billions of Kenyan shillings through compensation for faked export of gold. The Commission’s inquiry was held in public, and uncovered the intricate web surrounding the looting of public funds from the Central Bank of Kenya. However, in the report, Commission Chairman Justice Samuel Bosire observed that while massive sums of money had been siphoned out of the country by the Goldenberg scheme, the Commission was unable to trace it.

In 2003, the Kenyan government sought recourse to asset-tracing and recovery of looted funds and spent well over Ksh 20m (approximately 273, 973 USD) to track the stolen billions in foreign accounts, with little success. Apparently, those who stashed this money in offshore accounts were not only able to hire the best defence lawyers around, but actually frustrated the tracking effort by using third parties to transfer the money to other accounts once they realised they were being followed. The difficulties in pursuing investigations were compounded by foreign banking laws, which in some cases impeded investigations. Albert Mumma, a lawyer, argues that assets allegedly acquired by means of corruption can only be confiscated in Kenya, once a myriad of legal processes has been followed, and that the state needs to prove beyond doubt that the cash or property concerned was obtained through graft. He adds, “This would take a long, long time to prove. He adds, “We would be sitting in court hearings for years.” In a similar vein, Patrick Kiage has argued that during Kibaki’s time in power, there has been no flood of cases dealing with the past economic crimes being filed in the Criminal Division because there is just “not enough time or resources to re-open files long-closed or open new ones in pursuit of trails long cold and dead.” To him, were the Kibaki’s Government to pursue many of the past economic crimes through criminal proceedings, the government “may long have been shunted out of power before the first batch of cases is complete.”  Indeed, it would be just as difficult to trace illegally acquired money deposited in Kenyan banks, as there is currently no law that supersedes the confidentiality clause binding these banks to their customers. In addition, legislation is required to define how to treat persons who unknowingly bought property from those who obtained it through graft, as this would certainly invite possible costly lawsuits.

So while members of the civil society continue to rightly accuse the Kenyan government of lacking political will and commitment to uproot graft in the country, there is also need to appreciate the inherent difficulties in pursuing the prosecutorial approach against perpetrators of economic crimes. While corruption has been endemic and even threatens to tear apart the entire country’s socio-economic and political fabric, there is a need for prudent and pragmatic measures that would promote both accountability and social reconstruction. Eventually, the overriding consideration should be to secure the stolen assets. This is where the amnesty suggestion can be meaningfully applied. A similar approach was adopted this April 2008 in Kazakstan, allowing those who wanted to come clean to put their money in special accounts, which would then not be subject to penalty or taxation. Kazakh officials said some 500 million USD was brought in while the law was in effect.

How can the provision of conditional amnesty in Kenya be meaningfully and creatively applied to recover stolen property or public funds and under what conditions? One suggestion would be to carry out detailed investigations in order to gather sufficient information about those past corrupt practices and, if possible, freeze the related accounts and assets. Subsequently, with a damaging dossier, it would be imperative to ask the suspected corrupt individual to voluntarily return the money and receive amnesty or be prosecuted. This way, corrupt individuals are more likely to cooperate. The amnesty provision can therefore be used as a leverage or credible threat to have individuals cooperate in the repatriation of stolen national assets. Those who fail to cooperate should then be threatened with prosecutions and such other measures like prohibition from holding of public office.

*Dr Kisiangani Emmanuel is a Senior Researcher at the Africa Programme of the Institute for Global Dialogue, South Africa. His areas of interest include Transitional Justice, Conflict Management and Peace Building, Political Governance and Diplomatic Discourse.

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

From the standpoint of constitutional law, the handing over of the Waki envelope to the prosecutor of the International Criminal Court (ICC) represents the ceding of judicial autonomy of the state to an ‘exceptional court’. The establishment of a domestic special tribunal which supplants the supervisory jurisdiction of the High Court and strips the president and attorney general of constitutional powers and immunities has a similar effect. What would motivate a country like Kenya – by all indicators an authoritarian regime – to delegate judicial powers? This essay reviews some of the key literature on why states delegate judicial processes to auxiliary courts, interrogates some of the constraints, and provides possible pointers to successful trials in the Kenyan context.

At one end of the spectrum, Tamir Moustafa’s research on judiciaries in transitional contexts suggests that even though courts are often transformed into spaces for reinforcing the role of legal norms in mediating politics, authoritarian regimes generally use courts for at least five reasons: social control, legitimation, controlling administrative agents, creating credible commitments in the economic sphere and delegation of controversial reforms (Mustafa & Ginsburg 2008:1). While some of these reasons may not hold in the Kenyan context, some could. For instance, it is possible to imagine that ‘disciplining’ political elites otherwise untouchable by the political system could secure elite cohesion. Similarly punishing the perpetrators of the violence would reinforce commitment to the rule of law; an important ingredient in the stability of property rights and an incentive to economic investments. This position seems to find support from transitional justice scholars such as Bronwyn Anne Leebaw, who argues that law (and by extension, courts) can be ‘utilized to obfuscate and legitimate abuses of power’ (Leebaw 2008:97). The offshoot of this position is that it is possible to have trials of suspects of the post electoral violence without any corresponding attainment of their transformative intent. Consequently, Kenyan civil society should be alive to this possibility.

A view opposite to Mustafa’s would be that Kenya is genuinely keen on meeting its international obligations under both the Rome Statute and the Genocide Convention as evidenced by its willingness, albeit unsuccessful, to establish a national mechanism for the trial of post-electoral violence perpetrators. In this sense, Kenya can be said to be committed to ensuring adherence to international criminal law. Kenya’s attempted judicialization of political differences through an international criminal process can be seen as compliance with such norms (Downs et al. 1996: 389).This argument is however unconvincing given the glib manner with which proposals at the cabinet level have been made to the effect that Kenya should withdraw from the Rome Statute in order to deny the ICC jurisdiction over the Kenyan situation. A country buoyed by aspirations to comply with international standards would be unlikely to propose such actions. Instead, what emerges from this position is that the Kenyan state will not pursue normative compliance if the associated political and social cost is, in the short term, onerous. Any cost-benefit analysis is likely to centre around the succession of President Kibaki: the cabinet’s latest decision to abandon the pursuit of a local special tribunal stems largely from the perceived impact of any such trials on the strategic and vote-rich Rift Valley province. Indeed, Prime Minister Raila Odinga appears to have lost the support of Rift Valley political barons due to his enthusiastic support for such trials.

The most common justification currently advanced in support of international trials for Kenya’s war crimes suspects is based on the desire to end impunity. What this means, among other things, is that by punishing perpetrators, retributive justice is effected for the victims, and an increase in likelihood of punishment of political elites will ensure that such crimes do not recur. Deterrence theory in criminology, on which this proposition is based, does not anticipate that officials who have already committed human rights violations will be stopped from committing further violations. Rather, the concern is how sanctions will affect the future behaviour of other actors. Of particular relevance is the finding that beliefs about the likelihood or probability of arrest and punishment in human rights cases, rather than the severity of punishment, have a greater deterrent effect (Bueno de Mesquita 1995: 485). Deterrence research also suggests that deterrence is more effective for individuals who have higher stakes in society (Nagin 1998), which would seem to include the kinds of state officials complicit in Kenya’s killings. Sikkink’s latest research on the effects of human rights trials at the domestic level provides quantitative support in favour of the deterrence effect of such trials. One of her hypotheses is that countries that have held human rights trials will see greater improvements in human rights practices than those countries that have not held human rights trials. Her research, based on a survey of 192 countries, including a good number of African states, suggests that those states with more accumulated years of trials after transition are less repressive than countries with fewer accumulated years of trials, and that truth commissions are associated with improvements in human rights practices, but that trials have a stronger effect than truth commission (Sikkink & Kim 2009). Similarly, Roht-Arriaza (2005) argues that human rights trials, either domestic or international, are both legally and ethically desirable and practically useful in deterring future human rights violations.

Although deterrence and compliance theories may converge at the level of impact, the latter looks more at state conduct in the international sphere while the former considers social transformations engendered at the domestic level by targeted criminal proceedings. Both deterrence and compliance theories are further consistent with rational choice thinking on this issue which suggests that state officials and politicians choose impunity and repression because the benefits of such action exceed the cost (Poe et al. 1999).

Realizing deterrence in the Kenyan context, however, will be problematic if the current collectivization of culpability or victimhood is not halted through both coercive and persuasive means. By ascribing blanket guilt or innocence to ethnic groupings, it is likely that collective mobilization of communities will dull the anticipated deterrent effect of such trials. Instead, the outcomes of such trials will be rationalized away from justice and towards vindictiveness. Deterrence can be nurtured, however, if prosecutions are seen to apply across ethnic cleavages so that the sting of victors’ justice is stayed. Nonetheless, this approach may not be practical, especially if aggression continues in a particular community more than in others, a most likely scenario in the Kenyan case.

In contrast to deterrence and compliance supporters, realist scholars problematize trials as a vehicle for attaining social cohesion. For instance, some scholars of this persuasion argue that trials or threats thereof could destabilize new democracies and lead to coups. They hold that ‘fragile states’ that undertake such trials could ‘commit suicide’ by dramatizing high profile persons’ arrests and incarcerations. They further argue that the threat of prosecution could cause powerful dictators or insurgents to entrench themselves in power rather than negotiate a transition from authoritarian regimes and/or civil war (Goldsmith & Krasner 2003:49). Snyder and Vinjamuri posit that ‘Policies and institutions of humanitarian justice are destined to fail’ and that ‘recent international criminal tribunals have utterly failed to deter subsequent abuses in the former Yugoslavia and in Central Africa’ (Snyder & Vinjamuri 2003:40). In the same line of thinking, Mahmood Mamdani has disputed the efficacy of indicting Sudan’s President Omar Al Bashir on the grounds that such attempts will neither secure stability in Sudan nor halt the blood letting in Darfur. In this regard, he called for the subordination of criminal accountability to the larger pursuit of political reforms. While no coup is likely to happen in Kenya, the salience of this theory is obvious, and could explain the cabinet’s decision to shelve the pursuit of a local tribunal. Indeed, many calling for justice to be tempered with reconciliation have argued that the pursuit of justice should not come at the expense of the survival of the state. However, proponents of this view have failed to show how such trials will imperil the Kenyan state. Unlike Iraq, Sudan, the Democratic Republic of Congo or even the former Yugoslavia, Kenya has stronger institutions, notably an independent military, that can provide relatively apolitical- even if sometimes heavy- handed- security arrangements. The assumption here is that pressure emerging from high profile international criminal trials could re-ignite ethnic bloodletting and trigger a military intervention. Be this as it may, what is certain is that without the political commitment to the impartial use of such institutions, it is possible for state action to be misjudged as serving partisan interests.

This paper has presented a diverse body of knowledge that could be deployed in the assessment of Kenya’s decision whether or not to try the lead perpetrators of the post electoral violence. Such an assessment must be alive to emerging empirical evidence in favour of the deterrence effect of trials. The success of the Kenyan trials will depend largely on the extent to which ethnic mobilization is checked ex ante. A comprehensive and sophisticated outreach strategy is an important coefficient to this, as is a framework for prosecutions or other forms of transitional justice that is consultative, accountable and above reproach. Kenya’s fractured politics would undoubtedly be tested most severely by a local tribunal whose proceedings Kenyan and international media cover extensively. Consequently, a responsive media able to provide balanced and sensitive reporting that would give dignity to the victims of violence and hate will be important. In the end, Mamdani’s assertion that deterrence may result from prosecution only when the same rules apply for all war criminals, regardless of national origin or political orientation, is appropriate for the Kenyan cases as in Sudan’s Darfur.

Further Reading

De Mesquita, B. B., & Cohen, L. E. (1995). Self-interest, equity, and crime control: A game-theoretic analysis of criminal decision making. Criminology, 33, 483.

Downs, G. W., Rocke, D. M., & Barsoom, P. N. (1996). Is the good news about compliance good news about cooperation? International Organization, 379-406.

Goldsmith, J., & Krasner, S. D. (2003). The Limits of Idealism. Daedalus, 132(1), 47-64.

Kim, H., & Sikkink, K. (2007). Do Human Rights Trials Make A Difference? In Annual Meeting of the American Political Science Association.

Leebaw, B. (2008). The Irreconcilable Goals of Transitional Justice. Human Rights Quarterly, 30(1), 95.

Moustafa, T., & Ginsburg, T. (2008). The Functions of Courts in Authoritarian Politics. In Ginsburg, T., & Moustafa, T. (eds), Rule by Law: The Politics of Courts in Authoritarian Regimes. Cambridge University Press.

Nagin, D. S. (1998). Criminal deterrence research at the outset of the 21st century. Crime and Justice: a Review of the Research, 23, 1-42.

Roht-Arriaza, N. (2005). The Pinochet effect: transnational justice in the age of human rights. University of Pennsylvania Press.

Sikkink, K., & Walling, C. B. (2007). The impact of human rights trials in Latin America. Journal of Peace Research, 44(4), 427.

Snyder, J. L., & Vinjamuri, L. (2004). Trials and Errors: Principle and Pragmatism in Strategies of International Justice. International Security, 28(3), 5-44.

*Korir Sing’Oei is co-founder of the Centre for Minority Rights Development (CEMIRIDE) and a human rights Attorney. His current research focus is on universality, citizenship, and indigenous peoples’ rights in Africa.

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 truth about the beliefs and perceptions of the majority of Kenyans is not to be found in erudite forums and debates such as this one. To really understand the Kenyan mind, one needs to visit the marketplaces and the pubs in ethnically homogenous regions of this beautiful country. A recurring theme in many marketplace and bar-room debates is the need for ‘foreigners’ who have settled in other people’s ‘territory’ to learn to respect the ‘indigenous’ people. In this view, the ‘foreigners’ must not compete for political power with the ‘locals’, and whenever a national issue requires a vote, they must vote with the ‘host’ community or face dire consequences. Below, I suggest a radical measure to deal comprehensively and transparently with the hidden and overt prejudices that fan periodic eruptions of ‘political violence’ in Kenya.

Views expressing a preference for ethnic homogeneity may be forgiven if expressed only by ignorant village folk. Unfortunately these views are held by individuals who are expected to be opinion leaders in their communities, and actively reinforced by the most educated and urbanized Kenyans. It must also be noted that this is view prevails not just in the Rift Valley, but across the entire country. Sayings such as ‘blood is thicker than water’ have taken on new meanings, often suggesting exclusion of ethnic others and the promotion of narrow supposedly ethnic interests that often benefit only a few (mostly) political elite. This reality raises fundamental questions about the honesty behind public protestations of patriotism and Kenyanness, particularly when many proponents of these divisive perspectives are received as heroes in their communities.

Taken to its logical conclusion, this thinking seems to suggest that what needs to be done to rid this country of the periodic orgies of bloodshed associated with electioneering and politics would necessarily include radical legislative measures.

If Kenyans prefer ethnic homogeneity, then a law should be urgently enacted in parliament barring anyone whose ethnic origin cannot be traced to a particular area from vying for a post in that location. Everybody should be compelled to contest electoral posts only in the areas from which they can trace their ancestry. Thus, all elected leaders in Central Province will only be Kikuyu, in Western, Luhya, in North Eastern, Somali, and so on. As to what to do with relatively de-ethicized urban centers like Nairobi, this question would be left to the proponents of this ethnocentric thinking to resolve as they partition the country into ‘comfortable’ ethnically homogenous zones. Such a law would protect innocent voters from the ambitions of foolish Kenyans who still hold that democracy means that one can contest a post anywhere, every vote counts, and that the winner is decided by the vote. As this is indeed the current practice in most of this country, such legislation would only be formalizing what many Kenyans think is the best approach.

Indeed, the law should go further and enact a form of governance that does not require people to vote directly for the national leadership, because this is another area of contention. When the so-called foreigners vote for a candidate of their choice who happens not to be the favorite of their ‘hosts’, it often results in animosity and chaos. Therefore, legislation that ensures that a president or prime minister is elected or selected far away from the voter would safe-guard the poor citizens who go into polling booths thinking that their vote is truly free of coercion and strikes a blow for democracy.

These suggestions are not just the idle musings of a disturbed mind. They are informed by opinions and activities that have taken root on the ground. The country has already been secretly zoned into tribal enclaves, and the enclaves have identified their champions and leaders who are busy fighting for their ‘rights’. Indeed, at every constitutional review attempt over the last fifteen years, intelligent debate on devolution has been contaminated by a pedestrian definition of majimbo whose very thrust has been ‘our region for our people’, and assertions that ‘outsiders’ must go back to their ‘home’ areas.

Pretending that a different course is possible would be a waste of valuable national time that could be spent more productively pursuing real development and change in the lives of individual citizens. A solution such as that proposed above would go a long way in eliminating the use of elections and politics as an excuse for murders and rapes that has been deployed since the advent of multi-partyism.

Legalization of our secret prejudices would thus expose the criminals among us who take advantage of politics and elections to commit heinous crimes that are then labeled ‘political violence’ and left unpunished. In one fell swoop, we would have addressed the twin issues of violence and impunity, and hopefully Kenyans would become more honest in their speech and intentions.

Finally, this move would expose the true nature of the Kenyan Republic, and invite those like myself who disagree with this sort of arrangement to actively seek another place to call home.
Attempting to deal with this ogre of ethno-political balkanization in conventional ways of exhorting patriotism and nationalism will only end in more loss of life and property, since the citizens would remain deluded that they can practice their freedoms of association and assembly anywhere in this land.

*Dr Lukoye Atwoli is a Consultant Psychiatrist and Lecturer at Moi University School of Medicine www.lukoyeatwoli.com

There is a renewed interest in a new constitutional order in Kenya. A bad constitution is blamed for the post-election crisis, allowing the president to pack the electoral commission with his cronies shortly before the election; a largely unaccountable electoral commission declaring presidential election results without proper counting or reliable records; enormous powers vested in the office of, or illegally appropriated by, the president; the centralisation of power in Nairobi; the lack of public participation; the lack of autonomy, effectiveness and legitimacy of state institutions, particularly those for accountability and justice, principally judges, police, prosecution and the attorney general; opportunistic political parties and unprincipled politicians; and resulting corruption and wide scale impunity.

People often ask: would Kenya have been a better place today if the “Bomas” draft had not been sabotaged? This essay argues that a good constitution, while critical, is not equivalent to constitutional order. Enactment of a constitution is distinct from the adherence to its values, institutions and procedures. A constitution by itself makes no difference. Kenyan society determines the extent to which the constitution will be observed, manipulated, or disregarded, and therefore the extent to which constitutional reforms will have meaning.

The notion of a constitutional order is broader than merely the text of the constitution. It represents a fundamental commitment to the principles and procedures of the constitution and therefore emphasises behaviour, practice, and internalisation of norms. A central feature is the depersonalisation of power. Power belongs to state offices, not to individuals, however exalted. The purpose for which power must be used and the mode of its exercise are set out in the law. The holders of even the highest state offices are subject to the law, not above it. This aspect of constitutionalism has proved extremely hard to realise in Africa—where public office has its own aura, and expectations of the people merely encourage the whimsical, or capricious and biased, exercise of state power.

Most elements of the framework of constitutionalism are unacceptable to those who gain access to state power, for they interfere with their primary objective of accumulation. This has been the essence of the Kenya experience. Constitutionalism has been rejected, and constitutionally sanctioned power has been exercised or abused in the name of ethnicity but in practice deployed for personal aggrandisement. The politics of the ‘Bomas’ process demonstrate this rejection of the values of the constitution: a professional phase where independent experts consulted with the people in accordance with national goals and prepared a draft constitution, and a deliberative and consensus-building phase with the representatives of the people, regions/communities, and civil society, were followed by a parliamentary phase where, against logic and democracy, politicians had a veto. It was illogical because all the Members of Parliament (MPs) were automatically members of Bomas where they had ample opportunities to have their say and to persuade others of the rightness of their positions. It was undemocratic because MPs could override a decision of a much larger, and more democratic and legitimate body than Parliament. While the ‘Bomas’ process afforded Kenyans for the first time ever the chance to decide on the values and rules by which they wished to govern themselves, politicians held a narrow interest in the constitution, focusing on access to state power, and their own personal prospects of securing that access. During the Bomas, most politicians, including ministers, about half of whom barely ever entered Bomas, showed little interest in human rights and social policies, including environmental and land policies. But they were passionately opposed to popular participation in and controls over the exercise of state power. They had little time for fair administration and public accountability of state officials.

As the analysis in the Waki Report on Post Election Violence in Kenya so vividly demonstrates, the process of accumulation cannot easily be secured within the parameters of a democratic constitution through mechanisms and procedures for accountability. Indeed the point that emerges with sharp and sad clarity is that it is only by constant and systemic violations of the constitution and the law that this political class is able to accumulate and establish its control over society—and its opponents. The horrendous consequences of these violations are graphically described in the Waki Report: corruption, institutionalisation of violence, the extensive use of militias, and the loss of the state monopoly of force (with weaknesses and divisions in state security forces). In particular the Report emphasises the role and prevalence of violence in Kenyan politics and society. It attributes many failings of the state to the personalisation of power in the president (and with it the absence of the separation of powers). The economy has become closely intertwined with state patronage and ethnic politics, and leads businesspeople to become architects of violence, and to collude in other violations of the law. There is little accountability for the exercise of public power. Impunity for the friends of the regime and for compliant state officials is rampant—and indulged despite public outcry. All these demonstrate the absence of the rule of law. The way successive presidents have misgoverned Kenya is proof that these violations are in fact the norm.

Serious consequences follow from this, not least the loss of state legitimacy. The state is not perceived as a social and political force for the common good. It is regarded, accurately, as partisan, throwing its weight behind specific communities and interests. The subordination of the electoral commission, the police, and the judiciary to the executive has resulted in their inability to resolve national problems, though this is why they are set up, with independent powers. The police are particularly singled out by the Waki Commission for their failure to ensure Kenyans’ security, and consequently are held responsible for numerous murders, rapes, and the displacement of the people. They are no longer able or willing to protect the people against violence and plunder by private and politically sponsored militias. The judiciary is so discredited that no one believed that it was capable of impartial adjudication of election disputes. The Waki Commission doubts the veracity of the statements of the attorney general about his attempts to enforce the law. The Waki Commission concludes, “Over time, this deliberate use of violence by politicians to obtain power since the early 1990s, plus the decision not to punish perpetrators, has led to a culture of impunity and a constant escalation of violence”. The government and politicians have not only sanctioned violence, but they have also ethnicised politics and violence. Consequently the state has failed to perform functions intimately connected with the exercise of public power, indeed major reasons why we establish a state in the first place.

Despite the emphasis placed on constitutional reform by Kofi Annan, other eminent Africans, Kenyans and the international community, there is no guarantee that many of the reforms proposed by them and the Kriegler and Waki Commissions will help to get Kenya out of the hole in which successive regimes have placed it. I have said enough to indicate how vested interests, among politicians, businesspeople, and the bureaucracy will sabotage reforms (as they have done ever since Kenya’s independence). Despite the ravages wreaked upon the state, it still remains the primary means to accumulate wealth and power—and those who are in control of it will fight to maintain their control, regardless of the rules of the constitution.

It is hard to provide the answer to this dilemma, that the very sponsors of reform are its principal saboteurs. What we know is that constitutionalism cannot be willed; it must be established by deep commitment and sustained activity. The constitution cannot achieve anything by itself: like Marx’s commodities, it does not have arms and legs. It must be mobilized, acted upon, used, etc. This idea is also expressed by Granville Austin (2000), in his monumental study of the working and impact of the Indian Constitution, in which he says that a constitution, however living, is ‘inert’. A constitution does not work, it is worked. He says his book is ‘about those who acted upon the Constitution, how and why they did so, and about those the Constitution acted upon, or neglected. It is about Indians working their Constitution…’

One way to understand the potential of a constitution to impose its imprint on state and society is to examine two key factors. One is internal to the constitution, and the other, external (society). The internal concerns the ways in which the constitution distributes power, the institutions it sets up for different tasks, modes of accountability, and methods for the enforcement of the constitution, including respect for and protection of human rights. The balances within the constitution can do something to guide state institutions and empower the people. It is safe to say that constitutions may succeed in setting up institutions and giving them authority, but they often fail in the fulfilment of national values or directive principles—for the paradoxical reason that those who accede to these institutions may have little commitment to the values. It is interesting to note in this context that at Bomas, politicians paid almost no attention to values, but were obsessed about institutions—knowing well that if they got hold of institutions, they would be able to ignore values. As we know, most African constitutions contain excellent values and procedures, but, for the most part, they have failed to produce excellent states. In Kenya, even the essential pre-conditions of a constitutional state are missing: an independent judiciary, honest electoral commissioners, absence of impunity, policies that are inclusive, the rule of law—and most importantly, ethical and moral standards in public life. These difficulties are compounded by many unresolved historical injustices.

They have failed in substantial part because of the second factor, which is external to the constitution, namely society. The constitution operates within society and seeks to influence its development. The distinguished Indian sociologist, Andre Beteille, believes that a constitution can provide directions for the national development and self-realization, but whether, and the pace at which, the development takes place depends on society. The constitution may set out guidelines for the exercise of power and the aspirations that the state must fulfil. But society also affects the constitution, sometimes pushing policymakers to uphold the principles enshrined in the constitution and sometimes negating those principles. I have already indicated that in Africa we have placed unjustified reliance on the capacity of the constitution to influence society. I have also indicated that the political order intended to be set up by the constitution competes with other models and realities—and in the end it is society that determines the extent to which the constitution will be observed, manipulated, or disregarded.

The African constitution not only fails to mould civic values or the behaviour of key political actors, it also fails to generate a state that is capable of sound social policies and fair and honest administration. Andre Beteille’s brilliant insight needs to be supplemented by a consideration of the obstacles to progress placed by the inherited, pre-constitution bias of the state apparatus. Perhaps inadequate attention has been paid to these obstacles, as opposed to societal obstacles, because it is assumed that the constitution, par excellence, designs and structures the state. However, as I have mentioned above, it may structure institutions, but may fail to infuse them with values and principles. The constitution tends to structure macro institutions but often says little about values and procedures of the administration of the state (which may persist from one constitution to another).

The implication of this is that political reform has to go beyond the constitution. It is one thing to make a constitution. It is quite another to breathe life into it, making it a living, vibrant document which affects, and hopefully improves, the reality of people’s lives. A living constitution is one that citizens use in their daily existence, that governs and controls the exercise of state power, and promotes the values and aspirations expressed in it.

For these reasons, implementing a constitution is not about this or that provision, or even the totality of the constitution, important as these are. It is about the inculcation of a culture of respect for and discipline of the law, acceptance of rulings by the courts and other bodies authorised to interpret the law, giving effect to judicial decisions, acceptance of the limits on the government, respecting and promoting human and collective rights, the participation and empowerment of the people. Ultimately the people have to be guardians of the constitution.

Professor Emeritus Yash Ghai chaired both the Constitution of Kenya Review Commission and the Kenya National Constitutional Conference (“Bomas”). His areas of research and publication include public law, ethnic relations, autonomy and federalism, human rights, comparative constitutions, and sociology of law. He has taught at the Law Faculty of a range of universities including the University of Hong Kong University and Uppsala University, and been a visiting scholar in Harvard and Yale.

In 2005-2008, Prof. Ghai was the Special Representative of the UN Secretary General for human rights in Cambodia.