David Backer, Joseph Lahouchuc, James Long*

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.[1] Of course, their voices hardly rate as the only ones that matter; politicians, officials, activists and scholars are also vital to transitional justice processes, not to mention non-victims in the general population, whose participation as defendants, witnesses and observers is typically required for such processes to prove constructive.  That being said, whether or not victims are satisfied with the approach taken and experience some degree of restoration and healing as a result represent clear benchmarks to measure the acceptability and efficacy of transitional justice measures.

To help understand how victims of the 2007-08 episode of post-election violence and other past political abuses in Kenya view transitional justice and what they might be willing to contribute to its execution, we conducted a series of focus group discussions around the country in the Summer 2009.  The time was ripe for gauging the opinions of victims, since key actors within and outside the country were considering whether to try suspects of post-election violence locally or at the International Criminal Court, while simultaneously Kenya’s Truth, Justice, and Reconciliation Commission (TJRC) moved toward implementation.

We selected areas of Kenya most affected by post-election violence, and an experienced moderator conducted pairs of focus groups using a mixture of Swahili and local languages in seven different locations: Nairobi’s Mathare and Kibera slums; Kitale, Eldoret, Nakuru, and Naivasha in Rift Valley province; and Kisumu in Nyanza province.  In each location, we split the two groups either between men and women or between youths and the middle-aged/elderly.  The locations resulted in groups of mixed ethnicity and political affiliation.  The groups ranged in size from five to 10 participants, with an average of six.  To recruit these individuals, we relied on a network of grassroots-level non-governmental organizations that work with victims in the various locations.  All of the participants had been affected by post-election violence via harm to their own or their family members’ physical well-being and/or damage to their property.

We believe our approach, though limited in scope and lacking a representative random sample, affords certain advantages over a national public opinion survey.  First, we concentrated the research on those most affected by violence and proposed transitional justice mechanisms.  Second, victims are a distinct, small sub-population whose perspectives are difficult to capture—unless the concentration or overall prevalence of violations is very high—via the conventional sampling procedures that are typically employed for public opinion surveys.  Purposefully targeting this sub-population, including by restricting ourselves to select locations, was therefore an efficient approach to highlight an important constituency.  Third, the relatively open format of focus groups enables participants to express their attitudes, beliefs and desires in their own words and thus elicits answers that provide a richer understanding of how they view complex concepts and difficult issues.

The main subjects of the discussions included various aspects of the disputed elections and resulting violence; the current political climate; and relevant dimensions of transitional justice.  Here, we present insights concerning the participants’ attitudes about justice and amnesty; preferences for specific institutional options; views about the ostensible tradeoff between peace and justice; and perspectives on the extent of and potential for reconciliation.  Our hope is that this study, by injecting the vital perspective of victims based on recent original primary empirical research, informs not only the policy debates and institutional processes that are underway in Kenya, but also the public education programs that civil society has initiated to foster transitional justice.

Justice

In principle, a successful transitional justice process is predicated on a shared conception of justice and what specific mechanisms may yield in terms of benefits for victims.  Therefore, the initial question posed to each of the focus groups was: “What does justice mean to you?”  Rather than mentioning abstract notions like fairness, rightness or even legality, the responses generally fell into two broad categories: punishment and compensation.  Both conceptions are fully intuitive and relate directly the concrete consequences of post-election violence.  Lasting fears of living in proximity to perpetrators within communities are common.  In addition, many of the participants were forced to flee their homes and jobs and face continued difficulties in subsisting as a result of injuries and the inability to find employment.  Meanwhile, only a few of the participants linked justice to reconciliation, specifically dialogue and civil engagement.  Thus, the dominant conceptions of justice emphasized official actions to prosecute those responsible for post-election violence, as well as material assistance.

An overwhelming majority of the participants, however, were dubious about prospects of justice actually materializing in Kenya.  This skepticism is unsurprising given the country’s weak judicial system, a political class that is widely perceived to be indifferent to the plight of victims of violence, and past abrogated attempts at investigations, prosecutions and reform.  According to the participants, the main impediment to the implementation of justice is Kenya’s leaders, who are seen as venal, dishonest and likely to manipulate any commissions and tribunals.  An elder in Kitale sums up these feelings best: “Justice is devilish.  I have to bribe to get justice.”  Likewise, a male respondent in Eldoret captured the pessimism about the current state of politics: “It’s hard for Kenyans to get justice with our current crop of leaders.”  A youth participant in Dandora even argued that the current situation is worse than before: “Politics has really gone down.  It is becoming dirtier.”

Amnesty

The amnesty clause in the act establishing the TJRC, which allows perpetrators of certain rights violations to avoid prosecution if they come forward and confess to the Commission, has been controversial.  Public support for amnesty might wane in the face of ICC prosecutions, especially since many of the alleged perpetrators include present or former cabinet members, other members of parliament, local government officials, and prominent business leaders.

Likewise, the focus group participants were rarely inclined to unconditionally forgive and forget the offenses committed by those involved in the post-election violence.  At the same time, the participants drew a sharp distinction between the organizers and the actual perpetrators of the violence, exhibiting a far greater willingness to grant amnesty to the latter rather than the former, albeit with caveats on both fronts.  With respect to the perpetrators, many of the participants suggested a potential willingness to approve of amnesty as long as perpetrators acknowledged their wrongs, confessed in person, and expressed a sincere and meaningful desire for forgiveness. A frequent sentiment was that such steps would provide sufficient closure for individual victims to move on with their lives.  As one man in Eldoret suggested, “the only way for amnesty is for them to acknowledge their wrongs. We can forgive.”

Yet not all of the focus group participants were prepared to feel consoled if perpetrators admit guilt.  Some fervently rejected amnesty, expressing residual anger and resentment that is best summed up by a woman from Nakuru: “They can talk of amnesty, but we, the real victims, cannot forgive.”  Another man in Nakuru echoed the fears of many respondents about amnesty promoting impunity, in making the case for accountability as a means to prevent future violence: “If they [perpetrators] killed and are released, that will motivate others to the same atrocities.  There has to be punishment to deter others.”  Likewise, a male participant in Naivasha argued, “they [perpetrators] should be jailed for life so that they be a lesson to others.”

Institutional Mechanisms

Criminal Prosecution

The discussion of the possibility of trying individuals complicit in the post-election violence generated differing levels of support for three options: the ICC, a special tribunal in Kenya, and a hybrid system involving both international and domestic elements.  At the time, all of these options were receiving serious consideration in policy debates.  Subsequently, the ICC decided to proceed with formal investigations, which are likely to result in indictments of various perpetrators.  While these steps appeared to diminish the prospects for instituting a domestic tribunal, this option is still advocated periodically.

A large majority of the focus group participants preferred to send those involved in the violence—especially the organizers—to The Hague for trial.  The inclination to eschew local accountability, in favor of an international alternative, was based on several factors.  For one, participants commonly expressed confidence in the ICC’s ability to achieve important outcomes.  A young woman in Mathare indicated, “Let The Hague take ten years, but we will know the truth and at the end we will have results.”  A second woman said, “Politics is accompanied with violence.  Hague could change that and impunity will cease.  They will be punished well there.”  Others cited corruption in the Kenyan courts, the ability of politicians and other powerful individuals to subvert the legal process, and the potential for sparking further conflict.  As a woman in Kibera noted, “I think they [perpetrators] should go to The Hague because you might find these politicians may know the judges and even bribe them to have their way.  If they go to The Hague, truth will rule.”  A man from Eldoret agreed: “Local courts don’t have justice. The organizers are rich and therefore they will interfere.  They should go to The Hague so that at least justice will be served.”

A smaller number of participants advocated a process in Kenya.  Some made this case on the basis that the trials would then be more accessible and enable closer observation as well as direct participation.  As one participant from Kisumu stated quite succinctly, “We would like to witness.”  Similarly, an elder in Kitale argued: “I prefer here so that everyone can have their say.  We have to witness in those trials. We can’t all go to The Hague; we will have a more effective trial locally.”  Others reasoned that far more people could be tried locally, whereas relatively few could reasonably taken to The Hague.  Certain participants also worried that conducting trials in The Hague would mean only the organizers of violence would be prosecuted, allowing the actual perpetrators to go free.  The few participants who advocated a hybrid system saw the potential for complementary functions, with organizers being sent to The Hague, while a domestic tribunal would try the perpetrators.

Truth, Justice, and Reconciliation Commission

Meanwhile, the participants’ attitudes about the TJRC were almost universally negative.  Many seemed skeptical of its utility and suggested this process would be a waste of resources that could instead be going directly to victims, if not a further venue of corruption, rather than serving as a useful vehicle for rapprochement.  For example, a male respondent from Nakuru stated: “These commissions are just for making money.  They are just using them for the wrong purposes.”  A young woman in Mathare echoed his sentiments: “That is just scheme to use public money.”  Others indicated that the TJRC would be a political stunt above all else, doubting the extent to which it would engage and be responsive to the victim community.  As one participant noted, the process “won’t be ours,” but rather a top-level political process.  A woman in Eldoret underscored this skepticism by arguing, “That commission is just theirs.  We don’t have any say.  In fact, for anything that happens in Nairobi, we face the repercussions.”  Furthermore, multiple participants referenced a conspicuous history of failures by previous commissions to follow up on formal inquiries and effect change: “Commissions have been formed and are fake.  They never act on their reports” [young woman in Mathare].  “They never implement what they report” [male respondent from Nakuru].

A minority of the participants expressed cautious support for the Commission, but still questioned its fairness, the legitimacy of its leadership and its potential impact.  In addition, the few participants who did say they wanted the commission conditioned their support on the delivery of financial assistance, the creation of jobs or the punishment of offenders.  These stipulations echo the observations we made earlier that victims seem especially interested in substantive outcomes.  A process alone is seen as largely inadequate, not least because victims lack confidence in Kenyan institutions and officials operating with integrity and acting in the public interest, let alone conscientiously addressing the needs of victims.  In fact, the TJRC has commenced operation and begun to hear evidence, but continues to be plagued by the controversy over Chairman Bethuel Kiplagat’s past association with former President Daniel arap Moi’s regime, itself a violator of human rights.

Peace or Justice?

Earlier, we mentioned the participants’ fears that any efforts to prosecute individuals implicated in the post-election violence could incite further violence and threaten the security of populations that have already been victimized—a standard concern in countries that have undergone a transition from a period of conflict.  These anxieties may be based on only the theoretical risk of a backlash, without a clearly quantifiable threat.  That being said, comparative examples of such violence do exist, including instances where victims have been specifically targeted, e.g., the killings of dozens of witnesses in Rwanda’s gacaca proceedings.  Along similar lines, the absence of legislation and institutions to safeguard witnesses in Kenya has recently come to light as the ICC has begun its investigations.

These and other sorts of vulnerabilities and apprehensions presumably contribute to the fact that the focus group participants were split on whether they support legal accountability for those involved in the post-election violence, or peace and stability.  Those in the latter category expressed a desire to co-exist harmoniously and to live free from fear.  A woman in Naivasha advanced this point, making reference to the dire consequences of conflict, “If we had peace then we would not be wearing donated clothes.”  Those desiring justice argued that justice itself is most likely to produce peace and stability in the long run.  One man in Naivasha related the metaphor, “Justice is the table that carries peace.”  Another said likewise, “If you have justice you get everything else.”  A young participant argued, “You must have justice in order to be free.”  Not everyone drew a direct link between justice and peace, but rather some participants observed that peace can be a tenuous state of affairs and mask underlying grievances that implicitly could simmer and hold the potential to become disruptive.  As one woman in Kibera noted, “we are living peacefully yet we live grudgingly because some of us were violated and undermined.”

Interestingly, the participants in each focus group tend to share similar attitudes about this issue, but there were not consistent patterns by gender and location.  For example, the female participants in Kibera wanted justice first and foremost, whereas their male counterparts preferred peace and stability.  In Naivasha, by contrast, the female participants prioritized peace and stability, while the male participants desired legal accountability.  A natural explanation for the intra-group similarities could be participants following the lead of the first one or two peers to speak.  Yet the other questions did not yield this sort of consistency in responses, as might be expected if certain participants in each group were influencing their peers.  In so far as we can rule out that sort of phenomenon, it appears that attitudes concerning the choice between justice and peace and stability are highly contextual in terms of geography and personal traits.

Reconciliation

Definitions of reconciliation varied considerably among the focus group participants.  The most common understandings were forgiveness, acceptance of others, and acknowledgement of wrongs committed.

When asked whether reconciliation was occurring in their area, or in Kenya more generally, virtually all of the participants believed that progress had been modest at best.  They pointed to many pieces of evidence, most notably their continuing fear of returning home, the fact that stolen properties have not yet been returned, and the failure of perpetrators to apologize or be punished for their transgressions.

The participants were equally cynical about the prospect of reconciliation down the road, even questioning the basic readiness of Kenyans to pursue and achieve this outcome.  A Nakuru woman asked, “How can there be reconciliation when I am still feeling the pain for my murdered son?”  This visceral reaction is evidently widespread, with another participant observing that many victims “still feel the pain.”  Some also cited the ongoing presence of perpetrators in their communities and were resistant to the notion that under these circumstances reconciliation could be achieved through policy pronouncements alone.  As a Kitale elder explained, “If you killed my father, [even] if the government says we should live together, I can’t live with you.  I still have anger.”  Others blamed inter-party wrangling within the Coalition government, which was viewed as a persistent problem.  A further source of worry was the strong ethnic elements to the post-election violence, which have not dissipated and were even exacerbated in some areas by the flight of people and the development of enclave communities.

Conclusion

This brief article represents a first installment of insights from victims of post-election violence concerning their preferences about and expectations for transitional justice in Kenya.  The series of 14 focus group discussions we conducted around the country reveal urgent desires for redress of past harms and losses and for fundamental changes in politics and society, so that people can have the basic necessities of life and not face constant fears of renewed conflict.  The focus group participants were supportive of and otherwise open to a variety of transitional justice options, typically with a bottom-line focus on what is required to achieve meaningful and lasting results.  On this count, the strongest sentiment favored compensation to victims as well as prosecution of those responsible for organizing the violence, a task that most preferred to assign to international authorities.  Progress in these respects was viewed as essential for stability and reconciliation.  Yet there was considerable skepticism among the participants that these challenges would be taken up promptly and effectively and have a lasting, positive impact on the lives of victims and peace in Kenya.

* David Backer is an Assistant Professor of Government at the College of William & Mary (Virginia, USA) and a Visiting Fellow of the Kroc Institute for International Peace Studies at the University of Notre Dame (Indiana, USA).

Joseph Lahouchuc recently graduated from the College of William & Mary with a BA in International Relations.

James Long is a PhD candidate in Political Science at the University of California, San Diego (USA) and a Jennings Randolph Peace Scholar at the United States Institute of Peace

Download the Pdf version of this paper here.

[1] Notable exceptions include civil society campaigns and surveys conducted by South Consulting for the Panel of Eminent African Personalities to measure progress on the Kenyan National Accord and Reconciliation Act.  For the findings of the latter, see http://www.dialoguekenya.org.

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 laudable and rhetorically inspiring, are simply unattainable. The hope that international criminal prosecutions will reconcile mutually distrustful ethnic groups with a long history of reciprocal antagonism is quaint, perhaps even naive. International criminal prosecutions launched in Africa amid much publicity and high expectations are on the verge of irrelevance. After more than ten years of international criminal prosecutions in Africa, it is becoming increasingly obvious that criminal prosecution is a weak reed on which to hoist the strategy of reestablishing social equilibrium and reconciling intergroup hostilities in post-conflict African societies. A confluence of systemic and environmental factors has whittled down the influence of international criminal prosecutions in Africa.

First, efforts to use criminal prosecution to modify behavior and contribute to social equilibrium rest on a failure to appreciate that causes of conflict in Africa cannot be resolved through the criminal process. The overarching goal of criminal prosecution is to apportion blame and punish the guilty. Criminal prosecutions are not designed to address or alleviate the underlying social problems that lead to and perpetuate violence. Violence may be more pronounced in some parts of Africa, but its causes remain mostly the same in virtually every African country: ethnic distrust, corruption, marginalization of ethnic groups and inequitable allocation of a nation’s resources. The frequency, resilience and indeed the incentive to resort to violence will shrink by addressing the underlying causes of violence. These problems cannot be addressed comprehensively through the prosecution of selected perpetrators of human rights violations. The underlying culture that sustains social disequilibrium must be counteracted if accountability is to take roots in Africa.

Second, criminal prosecution is a poor vehicle for restoring social equilibrium in increasingly fragmented societies where violence is viewed as a legitimate means to attain desired objectives. In a fledgling democracy fractured along ethnic lines with a history of mutual ethnic hostilities, international criminal prosecutions may end up becoming an impetus for, not a deterrent to, extra legal violent conduct. Some warlords have apocalyptic goals and readily resort to violence to mould the society according to their image. Faced with the threat of prosecution, and sensing their inability to negotiate with a determined world community, warlords with everything to lose may decide that it is in their best interest to fight till the end. Also, criminal trials can have adverse impacts on relationships. They can often involve accusations and counter accusations, rehashing of facts that rekindle old hostilities and reigniting passions that ultimately make reconciliation difficult.

Third, the causes of violence in Africa are considerably different from what leads to deviant behavior elsewhere, and are therefore more difficult to address via criminal trials. The dynamics of violence in Africa challenge the expectations of a Western-type criminal justice system and raise serious questions about the assumptions that undergird criminal prosecution. Violence in Africa is the product of a different phenomenon; Rwanda, Sudan and Sierra Leone result not from deviant behavior of citizens but from tensions at the armature of the society: ethnic distrust. Its dynamism is sustained by the belief that violence in defense of ethnic interests is a moral imperative, even a legal obligation. Decades of ethnic distrust and rivalries coupled with the central government’s inability to deal fairly with the ethnic groups provide further impetus for the apocalyptic dynamism of violence. The traditional criminal process fails to address the broad range of ways in which situational cultural pressures exacerbate violence. Violence created by underlying social problems and perpetrated by several citizens with varying degrees of culpability cannot be addressed by criminal prosecution designed to address individual misconduct, especially in cases where the causes of deviant conduct reside not at the individual level but at the communal level. Moreover, whether international criminal prosecution actually serves as deterrence is unclear because its effect cannot be empirically verified.

Fourth, the effectiveness of international criminal prosecutions depends on support both from the public and state governments. In Africa, public support has been low because of negative attitudes of African leaders towards the West shaped by historical circumstances, especially the adverse effects of colonialism. Public support continues to dwindle because of prevailing attitudes which view international criminal tribunals as agents and symptoms of imperialism, and as attempts by the West to reestablish influence over Africa. The effectiveness of international criminal prosecutions also depends on support from African governments which has been less than enthusiastic. African leaders are reluctant to support the prosecution of their benefactors, tribesmen or warlords who have the capacity to cause troubles for the fledgling government. Whether ad hoc or permanent, international criminal tribunals based on Western notions of justice, can do very little to reestablish social equilibrium and arrest the advancing decrepitude threatening to engulf Africa.

I acknowledge that international criminal prosecution can play significant roles in promoting accountability in Africa, so long as it is properly structured and undertaken with some sensitivity to the sentiments and feelings of Africans who live with the painful realities of violence. But, for all the above reasons, international criminal prosecutions have neither delivered on the promise of social equilibrium nor served as a chastening influence on impunity in Africa. Wholesale adoption of Western models of justice may not work in Africa given the prevailing social, political and cultural realities. Concerns for accountability offer no license for the international community to arrogate to itself the right to determine what is best for Africa. Imposing the preferences of the international community without due consultations with affected African nations will revive poignant painful memories of colonialism and reignite negative sentiments that will ultimately undermine efforts to promote accountability.

I urge all those involved in the fight against impunity in Africa to rethink the deeply flawed assumptions about the capacity of international law to bring about transformative changes in the conduct of citizen and group relations in Africa. Violence is so interwoven with the maladies in the continent – corruption, poverty, ethnic tensions – that it is doubtful that criminal prosecutions alone can serve as a chastening influence on the behavior of the leaders or the citizens trapped within the society. Building an effective strategy to reestablish social order in post-conflict African societies requires an understanding of the idiosyncratic environmental factors that animate violence, as well as recognition that criminal prosecutions cannot address the social pathologies that have disfigured Africa. It is these pathologies that will define and shape Africa’s future, not the legacy of criminal prosecutions.

It is my submission that a single-minded pursuit of criminal prosecutions as the panacea to impunity in Africa, regardless of the anguishing realities, carries the dangerous and unacceptably high risk of further deterioration, anarchy and bloodshed in Africa. It is important, therefore, to confect a strategy that can simultaneously promote accountability and address the social pathologies that undermine efforts to reestablish social equilibrium and reconciliation.

*Okechukwu Oko is a Professor of Law at the Southern University Law Center, Louisiana.

( For a PDF file of this essay, please click here)

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.

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. The key is to see that the main strand of political violence in multiparty Kenya is unified by a stable and clear set of aims: majimboism, understood to mean the Kenyan form of exclusive ethnic federalism which finds its most fervent advocates in Rift Valley Province’s political class. In the 1990s, the violence was driven and supported by the majimboist-controlled state; it didn’t require mass mobilisation. 2007 was a genuine departure because the extent and intensity of majimboist violence demonstrated that communal mobilisation for violence is an effective substitute for state support. The beneficiaries have no incentive to give it up, and every incentive to avoid the consequences of past violence by holding onto power. Since their participation is necessary for reform, we can have either reform or accountability but not both.

My first job is to show that despite appearances (diversity of actors) the violence was actually unified in aim. The argument is simple: Rift Valley province is the centre of political violence in multi-party Kenya. The easy metric is deaths: even in 2007, when the violence is supposed to have been much better spread, 65% (744/1133) of recorded murders happened there (Waki: 309). We’re now eighteen years into the violence: it has broken out intermittently since 1991. Prolonged violence of this sort – locally-specific, ethnically-targeted, lethal, and carried out by a number of coordinated small groups – is organized and backed by some sort of ideological structure. That follows from the fact that most unplanned violence is difficult to start or maintain, tends to be brief, and is usually non-lethal (Collins 2008: 14-16). The exceptions to the rule of brevity (for small-group violence) occur where:

either (a) the fight is highly circumscribed, so that it is not really “serious,” or it is clearly understood that there are safeguards to limit the fighting; or (b) the type of exception described by the expression “hitting a man when he is down” (although the victim may well be a woman or a child), where in effect there is no real fight but a massacre or punishment (Collins 2008: 16).

Repeated bouts of this kind of sustained lethal violence require planning and preparation; planning and preparation for violence require coordination and justification, and hence institutionalisation. The justification is fairly clear: a middle-aged man interviewed by Al-Jazeera in Kibera, and Jason Kosgei in the Christian Science Monitor, gave almost identical answers: the violence was to end state-backed Gikuyu domination, which had begun with Kenyatta and never ended. As Lynch 2008 reports (Lynch 2008: 567), a significant portion of Kalenjin backed the violence, and have fairly specific reasons for doing so. Those reasons aren’t significantly different from those reported in Multiparty Politics in Kenya: In 1992, Biwott promised that non-Kalenjin trading licences would be revoked, and Lotodo demanded that all Gikuyu leave West Pokot (Throup and Horsnby 1998: 543). Then, as now, the immediate aims of the violence — to remove non-Kalenjin from the Rift Valley, and to place the remainder, if any, in a subordinate and dependent position –were clear.

The state did outsource violence in the 1990s; much less so afterwards. Why? In the face of the state’s significantly increased capacity for repression (Branch and Cheeseman 2008: 20), why was the violence so much worse in 2007? And why was violence was much better controlled in the 1990s than it was later? Most analyses of the violence have proceeded by identifying the actors, on the reasonable assumption that pinpointing the actor is a good proxy for pinpointing the motive. Going directly to motives, however, has some explanatory advantage: it promises informative answers to each of those questions.

Susan Mueller’s The Political Economy of Kenya’s Crisis may be the most comprehensive analysis of the underlying causes of the post-election violence. Her argument is pretty much that three factors – privatized, diffused, extra-State violence; ethnic clientelist parties; and the high-stakes prize of the Imperial Presidency – conjoined (with a very close election) to blow things up in 2007. The obvious response is to ask why nothing similar happened in 1997, and why all the factors she mentions are structural: the explanation, as given, would still work if the agents were switched. Every factor she lists was present then – if anything, the Presidency was even more imperial, the ethnic clientelist parties even more intensely ethnocentric. Yet there was relatively little violence around election time in 1997: most of the violence came well before or well after polling day. In particular, the announcement of the results in 1997 – results which in several cases were known to be entirely fraudulent – passed without incident.

This lack of specificity leaves the analysis less compelling than it might be; nowhere more so than her analysis of the state’s cession of its monopoly of violence. It is one thing to observe that the state outsourced violence; quite another to ignore the fact that the first Kibaki administration sought, very crudely, to re-establish the monopoly of violence. It is more accurate to attribute the cession of the state’s monopoly of violence to the Moi state – the state in the hands of the majimboist faction. That move – appeal to the motives of the faction in control of the state, rather than the state itself – explains why the state acted so differently either side of 2002, and it offers a direct explanation for the state’s choice and method of outsourcing violence. Moi’s outsourcing of violence in the 1990s is often explained as a pragmatic choice: irregular gangs and militias are untraceable; in employing them, the state got its extra-legal coercion done while minimizing its exposure. This is utterly unconvincing. A quick flick through the Akiwumi report demonstrates that civil servants openly participated in the violence. Nicholas Mberia – then the District Commissioner in Kericho – and 29 APs in his command violently evicted tenants from Buru farm on the morning of 13 December 1993. Not long after, he was promoted to Provincial Commissioner, Rift Valley Province. Several witnesses to the evictions in Enoosupukia testified that the Narok County Council wildlife ranger Johnson ole Punywa shot dead three residents. He too was later promoted. (Klopp 2001: 496). If the point of outsourcing violence was to conceal the state’s hand, then the state made a fearful mess of it. It’s likelier that the outsourcing of violence was driven, at least in part, by ideological motives – the drive to weaken and personalize the centre of the state, while strengthening the majimboist periphery.

Branch and Cheeseman account for the upsurge in violence by appeal to elite fragmentation. That’s a necessary rather than a sufficient condition. Remember that what’s wanted is an answer to why the violence crossed a certain threshold – why it escaped control of the state. Without an underlying capacity for violence, elite fragmentation need not have violent consequences, and it certainly need not have consequences so violent that the state struggles to control them. Appeal to a generalised diffusion of violence is nearer the mark, but it still underdetermines the quality of the violence in the Rift Valley: if elite fragmentation were sufficient to explain the escape of the violence from state control, then that would have happened in more than one place. It didn’t so, it isn’t. Capacity for violence matters; appeal to majimboist motives is sufficient to predict it.

After nearly 20 years or so of intermittent ethnic violence with zero consequences, with and without state support – and since much of the Kalenjin political class (and William ole Ntimama) is on board with the violence – it is difficult to avoid the conclusion that the violence has communal approval and support (Lynch 2008: 566-7; Ashforth 2009: 16). Some significant proportion of Kalenjin opinion leaders outside the political class – the rural middle classes, in particular – have been radicalised. That has been a necessity: when the violence had state support, it did not need communal mobilisation, and there was no need for the ideological backing. Absent state support, communal backing is necessary: the violence has become more ideological as it has become more popular. The balance of power is such that Kalenjin opinion leaders who support ethnic violence, and the majimbo project which justifies it, lack effective internal constraints.

The view that majimboist violence is driven by elite incitement is false: rather, majimboist aims are now widely popular outside the political class, and are captured by it (Ashforth 2009: 18-19). Majimboists willing to resort to violence are well-mobilised because they’ve had to be: without state patronage, the fervour of their cause has had to cover for the organizational goodies the state would have brought. The underlying strategy of reform-by-coalition-government in Kenya is to get the big beasts of the political jungle into government, so that they’re all bought into the new constitutional order. If they are to feel invested, they must be free to manoeuvre; for majimboist politicians, that freedom of action is directed, as it must be, to avoiding accountability for the violence. There can be no new constitutional order without majimboist involvement; since most of the violence has been in majimboist areas, accountability and reform are incompatible.

*Dr. Daniel Waweru is the Chief Editor of KenyaImagine

The above article is available as a PDF

BIBLIOGRAPHY

Adam Ashforth (2009). “Ethnic Violence and the Prospects for Democracy in the Aftermath of the 2007 Kenyan Elections.” Public Culture, 21(1): 9-19.

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Jacqueline Klopp (2001). “Ethnic Clashes’ and Winning Elections: The Case of Kenya’s Electoral Despotism.” Canadian Journal of African Studies, 35(2): 17.

Gabrielle Lynch (2008). “Courting the Kalenjin: The failure of dynasticism and the strength of the ODM wave in Kenya’s Rift Valley province.” African Affairs, 107(429): 541-568.

NTV Kenya (2008). “William ole Ntimama War Monger or responsible minister?” 24 July 2008. <http://www.youtube.com/watch?v=dLIM9gPHq5s> (08 July 2009).

David Throup, Charles Hornby (1998). Multi-party Politics in Kenya. Oxford: James Currey.

Akiwumi Judicial Commission of Inquiry on Tribal Clashes (1999). Report of the Judicial Commission appointed to inquire into tribal clashes in Kenya: Rift Valley. Date of publication unclear. <http://www.scribd.com/doc/2204752/Akiwumi-Report-Rift-Valley-Province> (08 July 2009).

This article is part of a debate 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 go to www.csls.ox.ac.uk/otjr.php.

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.

Bloated, divided, racked by corruption scandals and lacking a clear policy agenda, the coalition’s response to the immediate humanitarian crisis was inadequate. IDPs were moved to unmanned ‘satellite camps’ without concerted efforts to reconcile them with former neighbours, amid threats of violence and corrupt distribution of a paltry KSHS 10,000 ‘compensation’.

The government has responded to underlying causes by establishing four commissions: an Independent Review Commission to examine the electoral process (Kriegler Commission); a Commission of Inquiry into Post-Election Violence (Waki Commission); a Constitutional Review Commission (CRC); and Truth, Justice and Reconciliation Commission (TJRC).

In theory, such inquiries can play an important role, providing a public account and acknowledgement of the past, which may be cathartic and provide some solace. Thus, the Waki Commission has been commended for its criticism of state security services and politicians, and attention to underlying issues of impunity, poverty, underemployment and the ‘land issue’. Much more importantly, commissions can make recommendations – yet, while Kenya has held many commissions, successive governments have usually failed to introduce any suggested reforms. Unfortunately, this record continues. The most notable absence is of a Special Tribunal – recommended by the Waki Commission to investigate 10 individuals who may have incited, organised and/or financed the violence – with the threat that the ‘list’ would go to the International Criminal Court (ICC). However, in June 2009 the government agreed to a tribunal by July 2010, which renders any high-level prosecutions prior to the 2012 election campaigns extremely unlikely, while few citizens or police officers have been charged or even investigated.

Unfortunately, the CRC seems set to suffer a similar fate to its predecessor; especially its continued unwillingness to address why Kenyans are divided on certain issues, such as the benefits, dangers and meaning of devolution. Consequently, there is heavy reliance on the TJRC to solve underlying issues. However, the TJRC suffers from a paucity of resources and a massive mandate, which includes the need to establish an accurate, complete and historical record of violations of human and economic rights inflicted by the state between December 1963 and February 2008, a picture of possible causes, and investigate corruption and irregular acquisitions of land. The danger is thus that the TJRC will add little to the ‘truths’ established by earlier commissions, while their collective recommendations are delayed until after the next election or indefinitely. Added to this is a deteriorating security situation – with the police and military increasingly acting as a law unto themselves and spread of the mungiki model of gang crime and terror – while politicians seem blissfully unaware of seething resentments or, more likely, believe that they can use them to their own advantage.

The unfortunate consequence is that violence, while far from inevitable, seems increasingly likely. At the heart of the problem lies a corrupt and tarnished political system characterised by an ‘ethnic logic’ of political mobilisation and support. To understand local potential for violence one must recognise the interplay between: a highly centralised system in which real power lies with the Office of the President; a lack of faith in key institutions (such as the anti-corruption and electoral commissions, parliament, judiciary and security services); a perception that the post-colonial state is (and has been) ethnically biased; communal discourses of past injustice and marginalisation regarding ‘lost lands’ and political patronage; pressure on elites to present and further ethnic claims; the use of inflammatory and chauvinistic or defensive ethnic language by political candidates and local opinion formers; the use of violence as a political and economic strategy; a culture of impunity for corruption, ethnic incitement and organisation of violence; the subsequent normalisation of violence; and finally, but not least, high levels of poverty, inequality, and un (and under) employment especially among the youth.

Given this litany of interwoven factors and long-standing issues it is clear that far-reaching reforms are required. The most important of these are:

1) Institutional and constitutional reforms to reduce presidential powers and increase faith in key institutions. The colonial administration bequeathed a highly centralised system, which respective presidents have used in the name of unity and development. This has encouraged an obsession with personalities as the problem and potential salvation, and created a zero-sum game with all eyes on the presidency.

2) The government needs to end the culture of impunity for participation in violence by police and citizens, and the use of violence as a political strategy. Despite evidence that KANU politicians incited, organised and financed ‘ethnic clashes’ in the early 1990s, no investigations took place. This history has encouraged a normalisation of violence, such that it is increasingly part of political and socio-economic strategies, and has spiralled out of control – as the growth of ethnic militias (such as mungiki) prompts an increasingly violent state security response, and yet more militia activity.

3) Finally, the government must look beyond economic growth to realities of poverty and inequality along with perceptions of state bias and historical injustice. This requires much more than donor rhetoric of ‘poverty reduction’ and praise for impressive growth rates without noticeable trickle-down, but also a deep understanding of the link between perceptions of past and present injustice and the politicisation of ethnicity and the ethnicisation of politics. At present, there is a tendency to explain African politics by a simple ‘politics of patronage’, or the notion that politicians use ethnicity to mobilise support and reward supporters with state largesse. While important, this narrative ignores bottom-up pressures and the broader base of political accountability, and encourages a simplistic dichotomy between ‘bad’ politicians and ‘good’ citizens. More specifically, this approach ignores ways in which narratives of ‘shared pasts’ – of displacement, injustice, marginalisation and/or achievement – provide people with a means to lay claims to ownership and control of space, and rights to assistance. Too often ignored, this dynamic produces a complex political terrain in which politicians use ethnicity to mobilise support, and ordinary citizens use communal discourses to further claims to rights and resources.

To tackle all of these areas in a coherent and aggressive manner is clearly no small task, especially given the unwieldy coalition government, the worldwide recession, and competing claims to resources and representation. Nevertheless, the urgency for reform renders the government’s lacklustre performance in all these areas a source of considerable concern, as failing to deal with underlying problems and new layers of grievance raises numerous reasons to worry about future electoral cycles.

*Dr. Gabrielle Lynch is a Lecturer in Africa and the Politics of Development in the School of Politics and International Studies, University of Leeds, and has been conducting research on politics and ethnicity in Kenya since 2003.

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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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