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 against humanity during the post-electoral violence between December 2007 and February 2008. What prompted Annan’s actions?

The Office of the Special Adviser of the United Nations Secretary-General on the Prevention of Genocide (OSAPG) has developed a framework of analysis which includes indicators regarding the proclivity to genocidal acts in a particular country. Among these indicators are the prevalence of atrocities and extra-judicial executions, the presence of illegal arms, armed elements formed around a particular identity group, a break-down in inter-ethnic relations and exclusionary political practices. However, the most salient issue that the OSAPG framework of analysis identifies is the persistence of impunity for atrocities committed, particularly those targeting particular ethnic groups. As far as this framework of analysis is concerned, Kenya’s political situation, especially following the post-electoral violence of 2007 and 2008, contains all of these indicators and more. The question is therefore whether the current climate in Kenya can be described as one in which the proclivity towards genocidal acts remains high.

In order to remedy this predisposition and the legacy of the crisis, the National Accord and Reconciliation Agreement was signed on 28 February 2008 between the Party of National Unity (PNU) and the Orange Democratic Movement (ODM), following the Annan-led mediation effort. This Agreement identified a range of measures that were necessary in order to prevent the future outbreak of inter-ethnic violence. The Commission of Inquiry into on Post-Election Violence (CIPEV) also known as the Waki Commission produced a series of ‘recommendations concerning measures to be take to prevent, control, and eradicate similar violence in the future; bring to justice those responsible for criminal acts; eradicate impunity and promote national reconciliation’. The Waki Commission also recommended the establishment of a Special Tribunal of Kenya to try suspected sponsors and organisers of the post-electoral violence. This would serve as an in-country legal framework for the adjudication and administration of justice for the alleged suspects and thus confront the spectre of impunity which threatens to foster future violence.

Specifically, the Waki Report insisted that ‘it is imperative to guard against further encouragement of the culture of impunity by granting blanket amnesty to all and sundry in the post-election mayhem’.Astutely, the Waki Commission ensured that the recommendations in its report were accompanied by sunset clauses that would initiate consequences for in-action or intransigence. The Report stated that if ‘an agreement for the establishment of the Special Tribunal is not signed, or the Statute for the Special Tribunal fails to be enacted’, then ‘a list containing names of, and relevant information on, those suspected to bear the greatest responsibility for crimes falling within the jurisdiction of the proposed Special Tribunal shall be forwarded to the Special Prosecutor of the International Criminal Court’. This list was in the hands of Annan who has now delivered it to the Prosecutor of the ICC in The Hague.

The Grand Coalition Government failed to establish a Special Tribunal when the proposed Constitution of Kenya (Amendment) Bill 2009 was defeated by 101 to 93 votes in the Kenyan parliament, on 12 February 2009. The deadline that the Waki Commission stipulated had passed, but the Grand Coalition Government did not seem capable of re-visiting the issue. A number of senior political figures in both the PNU and ODM camps have allegedly been implicated in organising and instigating the post-election violence. Specifically, this included Kalenjin leaders from the Rift Valley Province who allegedly financed and organised pogroms against supporters of the PNU. It also included leaders in the Central Province who in retaliation allegedly organised and financed revenge attacks on Kalenjin, Luo, Luhya and other pro-ODM communities in the province. According to analysts, Kenya politicians on both sides were concerned that the local tribunal would be open to manipulation and therefore preferred the Hague option.

The OSAPG framework of analysis also notes that a trigger event, such as an election, is often necessary to unleash political tensions and to foment violent acts between people and ethnic groups. The impending Kenyan presidential and general elections of 2012 may turn out to be the trigger event that unleashes political violence on a scale not witnessed before in the country. Regrettably, a number of the country’s politicians believe that by frustrating the implementation of the provisions of the National Accord and Reconciliation Agreement and the specific recommendation to establish the Special Tribunal, they would improve their chances or those of their co-conspirators to capture the presidency. However, there is still time to avert this scenario. In particular, the issue of impunity has to be addressed as a matter of urgency.

The failure of the Grand Coalition Government to establish a Special Tribunal forced Annan’s hand. The Coalition had continued to pay lip service to the need to end impunity without any genuine commitment to punishing those who were guilty of crimes against humanity. Several politicians argued that it was necessary to promote healing and reconciliation through the proposed Truth, Justice and Reconciliation Commission rather than pursuing judicial persecution. Others argued that the prosecutions would threaten the stability of the country, but this revealed a lack of understanding that the short-term neglect of justice for the victims would lay the foundation for future violence and instability in the Kenya.

*Dr. Tim Murithi is Head of Programme at the Institute for Security Studies Office in Addis Ababa, Ethiopia, and author of The Ethics of Peacebuilding (Edinburgh University Press); and The African Union: Pan-Africanism, Peacebuilding and Development (Ashgate). He has held posts at the Universities of Bradford and Cape Town, the UN Institute for Training and Research and as a consultant for the African Union.

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Notes

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

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

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

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

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

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

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

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

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

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

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

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

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

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