How Will International Criminal Court Prosecutions Impact Kenya’s Legacy of Political Violence?

April 7, 2011 was a historical day for Kenya. On this day, four elderly Kenyans with dignity walked into a London High Court, which is to rule on abuses committed by the British colonial administration during the so-called Mau Mau rebellion in the 1950s. At the same time, three other Kenyans – with much less dignity – entered the doors of the International Criminal Court (ICC) in The Hague to face accusations of crimes against humanity committed in the context of the 2008 post-election violence.

More than three years after Kenya’s most recent round of electoral violence ended, the fact that some of the country’s most prominent politicians and public officials were summoned to appear before the ICC last week offers hope that those who masterminded the violence will be brought to justice. Though the suspects are yet to be formally charged, the appearances before The Hague Court on April 7 and 8 present a milestone in dealing with Kenya’s legacy of political violence. For the first time in the history of country, key members of the political elite have been required to stand before a judicial body, which may ultimately convict them for committing international crimes.

The early April hearings are the outcome so far of a process where the lack of domestic accountability mechanisms for the January 2008 violence, which claimed the lives of more than a thousand people and displaced several hundred thousands, triggered ICC investigations. On December 15 2010, ICC prosecutor Luis Moreno-Ocampo named six individuals who he deems bear the greatest responsibility for the violence. Among them are two candidates for next year’s presidential elections, William Ruto and Uhuru Kenyatta, as well the most senior civil servant in the country, Francis Muthaura. Having examined the evidence presented by the ICC prosecutor, Pre-Trial Chamber II found that there are reasonable grounds to believe that the six suspects have committed crimes against humanity following the disputed December 2007 elections. Proceedings in the near future will clarify if the six will stand trial for these serious crimes.

The hearings have been surrounded by much controversy. Some, including the Kenyan government and the African Union, claim that ICC involvement may trigger new unrest and violence in the country. Others, including many of the civil society organizations working in Kenya, say that the accountability process will promote peace and security in the country.

Although it is always difficult to predict what impact a judicial process will have on society, there are good reasons to believe that in the case of Kenya, criminal justice is necessary for preventing political violence in the future.

Ideally, the judicial institutions of Kenya should prosecute the planners and the actual perpetrators of the 2008 violence. This would contribute to strengthening the rule of law in the country and deter political leaders and their henchmen from once again utilizing violence for political purposes. Regrettably, however, the ordinary judiciary has not been able to try those responsible for organizing and planning the violence, and the Kenyan parliament has on several occasions voted down proposals to establish a special tribunal to hear the post-election violence cases. This failure to pursue justice in domestic courts is the consequence of resistance in large segments of the political leadership to accountability principles, but also points to significant problems concerning judicial independence.

In an admissibility challenge recently filed by the government of Kenya, it is claimed that the ICC cannot exercise jurisdiction since the “new Constitution and associated reforms has opened the way for Kenya to conduct its own prosecutions in Kenya for the post-election violence in respect of persons at the highest levels of authority and for the most serious crimes.”[1] The application entails a timetable, according to which investigations and prosecutions will shortly commence in Kenya. However, as no proceedings are presently taking place in connection to the crimes allegedly committed by the six individuals named by the ICC prosecutor, this would not seem to meet the threshold for a state to challenge admissibility under the Rome Statute. Furthermore, the sincerity of these commitments made by the government of Kenya should be questioned.

In particular, it is noteworthy that the government of Kenya has attempted to convince members of the UN Security Council that the council should use its mandate under article 16 of the Rome Statute to order a deferral of the ICC cases. Supported by the African Union, it is argued that “in order to prevent the resumption of conflict and violence”, the ICC process must be stopped to give way to the “ongoing peace building and national reconciliation processes”.[2] Kenya’s permanent representative to the UN in New York has further explained that since “some of the individuals mentioned by the ICC prosecutor are among the front runner presidential candidates and the civil servants mentioned are in office and charged with responsibilities for peace and security,” the ICC process poses “a real and present danger to the exercise of government and the management of peace and security in the country”.[3] On the one hand the government of Kenya challenges the admissibility of the ICC cases, making reference to Kenya’s ability and willingness to prosecute the organizers of the post-election violence. But, on the other hand it implies that accountability must be avoided since it will lead to new violence.

This lack of commitment to pursuing accountability for the 2008 electoral violence reflects a tradition in the country where political leaders have for decades incited violence against the supporters of political opponents with impunity. Since the return to a multi-party system in 1992, politicians have tended to campaign along ethnic lines, arguing that their victory is essential for promoting the interests of their own and affiliated ethnic communities. This has secured political leaders a base from where to access state resources. Exacerbated by the existence of inter-community grievances brought about by colonial rule, so-called political tribalism has made it easier for those seeking power to organize violence against the members of those ethnic groups perceived to support political opponents. Since the Kenyan judiciary has been among the most corrupt institutions in the country and there has been a lack of separation of powers, the general perception has been that there will be no accountability for political violence, thereby allowing such violence to flourish.

Should the ICC proceedings lead to the conviction of powerful politicians and state officials, this would be a strong signal to future political leaders in the country that there are limits to the methods that can be used for maintaining or gaining power. By setting an example, the ICC process offers hope that members of Kenya’s political elite will think twice before calling for violent attacks.

Additionally, the hearings, which are followed closely by Kenyan media, might contribute to revealing the truth of how the post-election violence was planned. Such information may be useful for putting in place other measures aimed at preventing political violence. As illustrated by an ICC judge ordering Ruto to sit down and be quiet when he claimed the case against him was like a bad movie, the hearing phase of the ICC process may also prove useful for making so far untouchable elites look more vulnerable.

On the other hand, those suspected by Ocampo have made clear that they will do everything within their powers to sustain political influence. Part of their strategy to achieve that objective now seems to involve using the ICC process as a platform for forming alliances and discrediting political opponents, for example by claiming that these opponents have provided evidence to The Hague court and sold out their fellow Kenyans. This is a dangerous form of propaganda, which is nonetheless already being countered by the ICC judges through a declaration that the use of “dangerous speeches” might lead the court to issue arrest warrants for the suspects.

Though important, prosecuting the so-called Ocampo Six is nonetheless insufficient for ending Kenya’s culture of impunity. For that to happen it is also necessary that accountability mechanisms are put in place to deal with those who killed, raped and stole from their neighbors. Focusing alone on a handful of political leaders who incited the violence neglects that community members have been allowed to settle private scores and gain materially by joining these violent attacks. Furthermore, to avoid the recurrence of large-scale violence in Kenya it is necessary to reform the electoral and political system, and high levels of poverty and equality and other socio-economic problems must be addressed. The adoption of a new constitution last year provides a useful framework for such change to happen, but important parts of the political leadership remain opposed to profound reform.

Prosecutions before The Hague Court should be seen as a first – but crucial – step towards fighting Kenya’s legacy of impunity. However, we all face some kind of responsibility for preventing crimes against humanity. This obliges us to strongly oppose any attempts of halting or manipulating the ICC process for political purposes, but also requires us to support and closely monitor the implementation of reforms and accountability mechanisms in Kenya.

Dr. Thomas Obel Hansen is Assistant Professor of International Relations at the United States International University, Kenya.

[1] Application on behalf of the Government of the Republic of Kenya Pursuant to Article 19 of the ICC Statute, ICC-01/09-01/11 and ICC-01/09-02/11, 31 March 2010, para. 5.

[2] Assembly of the African Union, Decision on the Implementation of the Decisions on the International Criminal Court, Doc. EX.CL/639(XVIII), January 30-31, 2011, para. 6.

[3] Letter dated February 28, 2011 from Kenya’s permanent representative to the UN in New York, Macharia Kamau, to the President of the Assembly of State Parties to the Rome Statute.