The necessity of transitional justice in Kenya and the merits of certain institutional mechanisms in particular have been vigorously debated in this forum, as well as within the country itself. In both of these contexts, the perspectives of victims of past violence have received only modest attention.
There exists in Africa a general agreement about the need for accountability, but a divergence exists as to how this could be pursued. Some countries use criminal prosecutions to address the aftermath of mass violence. Others prefer non-punitive mechanisms, like truth commissions and amnesty, as alternatives to criminal prosecutions. Some countries use truth commissions in combination with criminal trials to address the aftermath of human rights violations. Most recently, traditional methods of conflict resolution feature prominently in the anti-impunity arsenal of some African countries. It appears, however, that the preferred mechanism adopted by the international community to address impunity is criminal prosecution. Currently, investigations and prosecutions of serious crimes are taking place in post-conflict African societies before the ad hoc international tribunals in Rwanda, the Special Court for Sierra Leone and the International Criminal Court at The Hague. I concede that prosecuting perpetrators of human rights violations is definitively a viable mechanism for combating impunity. In appropriate cases, the criminal process can be deployed to engineer compliance with the law and to deter would-be perpetrators of human rights violations. In this essay, however, I argue that the objectives of using criminal prosecution to reestablish social equilibrium and promote reconciliation, though […]
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.
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.
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.
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 think we can have both. This, unfortunately, is a bit of a farce: stable reform and calling the violent to account are incompatible.
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 over 1,000 people dead and more than 350,000 displaced. The violence ended in February 2008, when a coalition government was formed, but ‘deep peace’ remains elusive and reforms unlikely. What is left is only rhetoric differentiating this administration from post-Mau Mau amnesia and investigative committees without reforms, as after the ‘ethnic clashes’ of 1991-1993.
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?
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.