Sadly, the risk that Kenya will face another round of electoral violence during next year’s presidential elections has increased following the African Union summit held in Addis Ababa in late January 2011. The summit, bringing together presidents and ministers from across the continent, passed a declaration relating to International Criminal Court (ICC) investigations into Kenya’s electoral violence, which is likely to promote impunity rather than accountability. Noting that the “ongoing peace building and national reconciliation processes” in Kenya will benefit from a domestic accountability process, the declaration requests the UN Security Council to use its mandate to order a cessation of ICC proceedings against the so-called Ocampo Six – those suspected by the ICC prosecutor to have masterminded the violence that followed the disputed 2007 general elections.
The Rome Statute which provides the legal framework for the ICC endorses the principle of complementarity, according to which the Hague Court can only exercise jurisdiction when the state in which crimes are committed is unable or unwilling to prosecute the crimes itself. So on the surface this might seem a reasonable request. In addition, Kenya adopted a new constitution in August 2010, fundamentally reforming a judiciary long characterized by corruption and lack of independence. The prospects of dealing domestically in a fair and impartial way with the planners and perpetrators of the 2007/8 political violence, ought thus to have improved. What is more, President Mwai Kibaki’s as well as Prime Minister Raila Odinga have both stated their commitment to creating fair and impartial accountability mechanisms in Kenya, seemingly adding credibility to the claim that Kenya can deal with the crimes itself. However, a closer assessment of the situation in Kenya strongly suggests that ICC involvement is crucial for achieving that accountability, and that there could be negative consequences were the UN Security Council to accede to the African Union request.
It seemed promising when the two parties to the disputed 2007 election, incumbent president Kibaki and his challenger Odinga, under the guidance of former UN Secretary-General Kofi Annan agreed to form a coalition government, in which Kibaki would remain president and Odinga become prime minister. The agreement, which ended large-scale political violence in the country, also stated support for the need to hold the planners and perpetrators of the electoral violence to account. Though this commitment has since been restated on numerous occasions, in reality the political leadership in Kenya has continued to manoeuvre so as to avoid prosecuting the Kenyan leaders who were involved.
This began in 2008. The so-called Commission of Inquiry into Post-Election Violence – set up in connection with the Kofi Annan-led mediation process – had recommended that local tribunals be established to handle the electoral violence. But in February 2009, MPs voted down a proposed bill to establish local tribunals, many saying that the Hague option was to be preferred since local tribunals were likely to be biased and unable to hold accountable high officials. Given the compromised state of the judicial system in the country, this might have seemed plausible enough, had it not been accompanied by a series of subsequent steps taken by the parliament.
Kofi Annan, to whom the Commission of Inquiry into Post-Election Violence had handed over a secret list of key suspects in the post-election violence, forwarded the list to ICC prosecutor Luis Moreno-Ocampo. Based on this and other evidence, the prosecutor requested Pre-Trial Chamber II of the ICC to authorize a formal investigation into the Kenyan case, which was granted in March 2010, the first such investigation in the history of the ICC. In December 2010 Ocampo requested the Court to summon six individuals who he believes bear the greatest responsibility for the electoral violence, defined by the prosecutor as crimes against humanity. Among the Ocampo Six are some of the most influential politicians and civil servants in the country, including the former police chief, the head of the civil service who also functions as secretary to the cabinet, and three prominent politicians, two of whom – Uhuru Kenyatta and William Ruto – have already made clear that they intend to run for president in 2012.
As many had feared, the naming of suspects has caused new turmoil in Kenyan politics, and it now seems clearer than ever that almost the entire political leadership remains reluctant to challenge the legacy of impunity in the country. One of the clearest signals of their resistance to accountability concerns the suggestion for Kenya to withdraw from the Rome Statute. Almost immediately following Ocampo’s request to have the named individuals summoned before the Court, a motion tabled in parliament by Isaac Ruto (not related to William Ruto) was passed, requiring the Kenyan government to take “appropriate action to withdraw from the Rome Statute”. The motion, which was only opposed by one MP (Former Justice Minister Martha Karua), was passed under threat that any failure to comply with its contents within 60 days would lead to actions against Kibaki, including sabotaging government business in the House. Though some cabinet members – including Energy Minister Kiraitu Murungi, Minister for Public Health and Sanitation Beth Mugo and Minister for Nairobi Metropolitan Development Njeru Githae – appeared in favour of acting on this request, in the end the government decided to pursue a path where efforts would instead be made to persuade other African states to support a deferral of the ICC case. As witnessed by the African Union declaration in late January 2010, the shuttle diplomacy spearheaded by Vice President Kalonzo Musyoka proved successful in persuading Kampala, Addis, Khartoum and others that the ICC case should be deferred to Kenyan courtrooms.
A number of other recent events suggest that there will be no prosecution of those who orchestrated Kenya’s electoral violence should the case be deferred.
The ministers and officials named by Ocampo have been allowed to stay in office. While this might be supposed to support the principle of presumption of innocence, in the case of Kenya it looks more like government protection of the alleged perpetrators. In mid January 2011, when two of Ocampo’s suspects, Ruto and Kenyatta, were discussing joining forces against Odinga in the 2012 presidential elections, they were told by Kenya’s Vice President: “You (Ruto and Uhuru) should not lose hope because of being named in the ICC list. The Government will do its best to assist you, because we want to ensure that every Kenyan feels part and parcel of the next dispensation”. As George Kegoro, executive director of the Kenyan chapter of the International Commission of Jurists, pointed out, “a guilty verdict should not be the yardstick with which to measure whether they should resign or not, more so considering this has not been the yardstick for previous instances where the integrity of the government officials has been questioned, and especially when a court case is under way”.
In January 2011, a decision was made to provide legal defence at the expense of the government for some of the suspects. Initially the cabinet discussed a plan to allocate 4.7 billion Kenyan Shillings (around 60 million US Dollars) to the legal defence of the Ocampo Six. In the end, a more limited intervention was agreed on, according to which the state only pays the legal defence for the two civil servants named by Ocampo (Ali and Muthaura). The Vice President justified this support, amounting to 500 million Kenyan Shillings (around 6 million US Dollars), by declaring: “The two were working on behalf of the country... we must stand by them”, further noting, “It is not that the government does not have the interest of the victims of the violence at heart. The time for compensation and assistance to the victims will also come”. Quite understandably, the thousands of refugees of the post-election violence who continue to live in IDP camps are outraged by the government’s decision to allocate huge sums for the defence of alleged perpetrators of crimes against humanity, while they are still waiting for funds for their resettlement.
All of these developments suggest that a decision of the UN Security Council to order the ICC to defer the case to Kenya would almost certainly ensure continued impunity for the planners of the post-election violence. Even a reformed Kenyan judiciary will be unable to prosecute members of Kenya’s elite for crimes against humanity – Kenya’s political class simply remains too powerful for that to happen.
Countries such as South Africa have made a peaceful and democratic transition without prosecuting and punishing the architects of gross human rights violations. The question arises: can Kenya move on without bringing to justice the planners and perpetrators of political violence? Two conditions set the Kenyan case apart from most of those where a peaceful transformation has been achieved in the absence of criminal justice.
Firstly, as already indicated, there has been no real political transformation in Kenya: those responsible for the most recent round of electoral violence are still among those in power. Deterrence, in other words, is more crucial when those in power have already proven their capacity to use violence for political purposes, than in instances where a new leadership has replaced the old repressive regime. Neither Kibaki nor the main candidates to succeed him – Kenyatta or Ruto – are a Nelson Mandela. Rather, they are members of a political class accustomed to work on the premises of impunity.
Secondly, as opposed to cases where gross abuses were committed in a clearly defined period of civil war or under a single authoritarian regime, the legacy of impunity is extremely deep-rooted and institutionalized in Kenya. State-sponsored repression and violent clashes between the supporters of the various political factions have surrounded most periods of intensified political competition in Kenya since independence, as has the failure to hold accountable the planners and perpetrators of such violence. One explanation for this lies in a constitution that has provided the president with broad powers, all of which tend to strengthen the winner-take-all calculus. The constitution which was in place until 2010 contained only weak mechanisms of checks-and-balances, making it easy for those in power to use their position for purposes of self-enrichment while avoiding being held to account for any violence. The adoption of a new constitution, however designed to remedy these problems, has not been sufficient to convince the Kenyan leadership that it can no longer use violence as a political tool. To establish the rule of law and deter members of the political elites from organizing violence, it is still necessary to change a political tradition of impunity by setting examples.
 Kalonzo Musyoka as cited in Peter Mutai and Karanja Njoroge, The Strange Reunion, The Standard, January 17, 2011, pp. 1 and 4.
 Letter from George Kegoro to President Kibaki and Prime Minister Raila Odinga, as cited in Sunday Nation Team, Civil Society on a Diplomatic Offensive, Daily Nation, January 16, 2011, pp. 4-5.
 Dave Opiyo, State to Pay for Ali and Muthaura Defence, Daily nation, January 16, 2011, pp. 1 and 6.