Transitional Justice and Peacebuilding on the Ground: Victims and Ex-Combatants (Law, Conflict and International Relations) (58 page)

The second strategy involved a Kenyan withdrawal from the ICC, preferably as part of a mass walkout of African countries dissatisfied with the ICC’s alleged anti-Africa bias. Immediately after Moreno-Ocampo named the six suspects in December 2010, the Kenyan parliament unanimously passed a (non-binding) motion to withdraw from the ICC. The initiative found an ally in Sudanese president al-Bashir and Kenyan officials won African Union support for ignoring any forthcoming ICC summonses to appear or arrest warrants. However, Kenyan
officials abruptly dropped the campaign for departure
en masse
, perhaps because they realized that their formal withdrawal would be effective only one year after official notification and that the ICC would retain jurisdiction over grave crimes committed on Kenyan soil while the country was still a member.

The third strategy was a concerted but ultimately unsuccessful effort to persuade members of the UN Security Council, especially the five permanent members who wield veto power, to pass a resolution instructing the ICC to suspend its involvement for one year, based on the argument that the current ICC process posed a risk to international peace and security. This is the only permissible reason to forestall, albeit temporarily, the ICC. Credible domestic trials alone are insufficient grounds for the Security Council to suspend proceedings.

Despite the Kenyan government’s multiple attempts to prevent ICC involvement, the ICC confirmed charges against four of the six accused (Kenyatta, Ruto, Muthaura, and Sang) in January 2012. At best, the ICC could find four perpetrators guilty of crimes against humanity committed during the two-month period that followed Kenya’s 2007 general elections. This would constitute a remarkable break with the complete impunity of the past and be very important symbolically for victims. However, the lower-level perpetrators that victims identified as responsible for their personal plight would remain unaffected. Barring any credible Kenyan tribunal, the hundreds and perhaps thousands of other perpetrators will not be held accountable for their actions.
²⁸
This scenario does not provide much hope for deterring future outbreaks of mass violence, for instance in conjunction with the general elections due to be held by March 2013. For one, future perpetrators would make sure to not leave a clear trail of evidence, which did not matter in the past. They might also ensure that they are not among the half-dozen of those most responsible for the violence, as the ICC is unlikely to prosecute more than a handful in any future case of election violence.

Some Kenyan government officials have, in fact, begun to recast the role of the ICC and international criminal justice as antithetical to peace and national reconciliation, as well as national sovereignty. To discredit international accountability mechanisms, a few officials have publicly suggested that Justice Waki committed treason when he handed over the evidence to a foreigner and that KofiAnnan, previously trumpeted as the savior of Kenya for his role in the National Accord mediations, was actually a puppet of the West. Some unin-formed outside observers have rather naïvely accepted the politicians’ self-serving framing of the ICC as a new threat to the country’s well-being, forgetting that the lack of accountability for previous serious crimes, including the killings and forced displacement associated with the 1992 and 1997 elections, facilitated the 2007–08 post-election violence. For instance, a well-intentioned December 2010
Washington Post
editorial endorses continued impunity, warning of the risk that prosecution “will drag Kenya back toward civil war” and concluding that “Justice for human rights crimes is important; but Kenya’s continued peace and democratic process is of greater value than another endless prosecution in The Hague.”
²⁹
ICC trials could indeed serve as a pretext for the accused and their allies to foment further violence in protest of the supposedly unfair charges and alleged unwarranted
targeting of specific communities, especially if convictions fall disproportionately on one side. However, these are likely to be of short duration and remain localized.
³⁰
Thus, accountability might pose a minor threat to the negative peace in the short term, but continued impunity poses a much bigger threat to negative peace in the medium and long term. Each bout of inter-ethnic violence renders more difficult the path to an eventual positive peace.

Opinion polls suggest that self-serving politicians failed to persuade ordinary Kenyans. A poll released in February 2011 found that over 60 percent of those polled opposed withdrawal from the ICC, a position supported by 36 percent.
³¹
An April 2011 poll revealed that 61 percent of respondents felt that those responsible for the violence should face ICC trials, while only 32 percent preferred either a hybrid national/international tribunal (24 percent) or local courts (8 percent).
³²

Unfinished Business

The Kenyan government has achieved a lot more on some agenda items than others. As mentioned above, the National Accord quickly put an end to the violence (item 1) and the political crisis (item 3). Results remain far more elusive, however, on addressing the humanitarian crisis, promoting reconciliation, healing, and restoration (item 2), and working on long-term issues and solutions (item 4).

With regards to item 2, the most important remnants of the humanitarian crisis are the internally displaced persons (IDPs), the main (surviving) victims of the post-election chaos. As mentioned above, the violence displaced more than 500,000 people. Though the political crisis was resolved in 2008, the following year 60 percent or more of IDPs were still unable to return home and most were living in deplorable conditions, while few received sufficient compensation or assistance for resettlement.
³³
About 350,000 found refuge in one of more than 100 tented camps for IDPs, where they joined a similar number of people displaced by state-induced violence in the 1990s who had never been relocated. Despite the coalition government’s public commitment to resettle all IDPs by the end of 2010, at least 300,000 of the 2007–08 IDPs remained in camps in February 2011, three years after the crisis ended.
³⁴

Item 2’s other objectives—reconciliation, healing, and restoration—are also elusive and complex. Though most may not see themselves that way, members of several communities are both perpetrators and victims, a fact that would immensely complicate any discussion of reparations or compensation, with a potential for renewed animosity. Likewise, what might bring about healing for one community, for instance the conviction of a high-level organizer of the violence against its members, could—if seen as unjust or imbalanced—fuel further resentment among the perpetrator’s ethnoregional group. Moreover, the restitution of property could provoke renewed antagonism, especially if its legal ownership is contested or perceived as unjust.
³⁵

As explained earlier, the main institutional response in this area is the Truth, Justice and Reconciliation Commission, which only began to hold hearings in
April 2011, after many delays and widespread criticism. Moreover, though they are at the core of peacebuilding and transitional justice efforts, the outcomes of healing and reconciliation are extremely difficult to measure.
³⁶
Still, there appear to be few signs that inter-ethnic relations have substantially improved, especially at the local level, though more research is required to make a more definitive statement. Though a few new alliances have formed across the 2007 electoral divide, it is mainly limited to the elite level and the “coalition of the accused,” who share interests in evading accountability, yet sometimes still rally support via ethnic nationalist discourse.
³⁷
Ethnic partisanry was clearly a major factor in responses to the ICC prosecutor’s charges against the “Ocampo Six.” Once ICC trials begin, arguments and revelations regarding crimes committed, as well as the identities of those most responsible, could also stoke tensions along ethnic lines, for instance if Kikuyu suspects portray Kikuyu-perpetrated violence as justified self-defense against prior Kalenjin attacks.

The coalition government has already dealt effectively with some of the components of agenda item 4—longer-term issues. Its main achievement is the drafting, approval by plebiscite, and promulgation of a new constitution. It has also initiated the reform of other institutions, notably the electoral ones, but very little has been done on reforming the judiciary, the police, and the civil service. Likewise, there has been scant progress, if any, on the other item 4 issues: land reform; poverty, inequity and regional imbalances; unemployment, particularly among the youth; consolidation of national cohesion and unity; and transparency, accountability, and impunity. Though constitutional and institutional reform may have positive effects in the future, in the short-to-medium term, it is unlikely to have an impact on justice or peacebuilding.

Off the Agenda

Peace agreements usually contain provisions on the demobilization, disarmament, and reintegration (DDR) of armed groups. The National Dialogue and Reconciliation agenda, however, contained no mention of DDR. Though the armed groups in Kenya differ greatly from the parties that negotiate the end to civil wars—typically a country’s armed forces and one or more rebel groups—the issue remains extremely salient. Much of the violence around the 1992, 1997, and 2007 elections was perpetrated by organized militias (often known by the Kiswahili word
jeshi
). Some
jeshis
are beholden to a specific political figure, who funds them and has them do his bidding. Others are fundamentally “guns for hire.” The most famous irregular armed group is Mungiki, an officially banned, large, Kikuyu-based organization that is part religious cult, part criminal gang, and part
jeshi
. During the 2008 post-election violence, PNU officials are alleged to have paid Mungiki to carry out brutal attacks on ODM supporters in Naivasha and Nakuru.
³⁸
The failure of the National Accord to address what to do about the various militias is one of its biggest flaws. The coalition government’s lack of any serious attempts to disarm the
jeshis
is one of the greatest threats to peace in future elections. In fact, various communities have been arming themselves in anticipation
of future attacks, notably in the Rift Valley, the main location of political violence since the 1990s. In a new arms race, they are purchasing sophisticated weapons, such as AK-47 machine guns, from illegal arms dealers.
³⁹

The other major area of concern left out of the National Accord regards the protection of victims, in particular those who have served or could serve as witnesses for various official investigations. The Kenyan press and NGOs have already noted with alarm that a significant number of those who testified before the Waki Commission have been threatened, injured, or even killed, possibly by members of
jeshis
. Some have already recanted their testimony. The ICC will protect and relocate any witnesses who testify in The Hague. However, those who spoke to ICC pre-trial investigators in Kenya will get no support. The coalition government, under pressure from NGOs and aid donors, strengthened its witness protection program in 2010, but critics claim it still cannot provide adequate protection. The insufficiencies of the program and the protection of witnesses more generally will be serious impediments if there are prosecutions held in Kenya. In a related concern, Deputy Prime Minister Uhuru Kenyatta, one of the “Ocampo Six” named in December 2010, remained on the Witness Protection Agency advisory board until he bowed to ICC pressure and resigned in March 2011—and may have had access to witnesses’ confidential information.
⁴⁰

Conclusion: No Justice, Fragile Peace

Ideally, transitional justice measures not only promote accountability and fight impunity in relation to past violence, they also act as an incentive for peace and deter future abuses. In Kenya, however, the coalition government formed in response to the post-election violence in 2007–08 had only an insincere commitment to transitional justice, especially to the matter of accountability for the gross abuses. In particular, it expected that the report of the Commission of Inquiry into the Post-Election Violence would merely gather dust. It was caught off guard by the Waki Report’s leverage, using KofiAnnan and the secret envelope, but it still managed to scuttle the proposed hybrid tribunal to try suspected perpetrators of the violence. The government also established a Truth, Justice and Reconciliation Commission—a staple of transitional justice mechanisms meant to contribute directly to peacebuilding—but gave it a feeble mandate and sabotaged its work sufficiently to remove any significant threat of negative repercussions on the political class. It has raised the prospect of a national tribunal, mainly in an attempt to forestall ICC trials, but has taken little action, including in the necessary concomitant major reform of the discredited judiciary and police—though the appointment of a well-respected human rights scholar and former activist as Chief Justice of the Supreme Court may set in motion a positive process. Victims of past violence remain vulnerable, especially if they are able to provide testimony against perpetrators and the government does not provide sufficient witness protection. This will make prosecutions more difficult, at least in Kenya. Only the ICC in The Hague could escape its grasp, but its work will be slow and distant
from Kenyans’ everyday activities and, moreover, will not try more than four suspects.

The reason Kenyan transitional justice mechanisms will have such limited outcomes is relatively simple: There has not been a meaningful transition or break with the past, as a number of perpetrators remain in positions of power and there have been no high-level prosecutions for any of the crimes of the authoritarian past. The National Accord put in place a power-sharing coalition government in which prominent members of the political elite on both sides shared a common interest in avoiding accountability for the atrocities that their members helped organize and finance. The lack of accountability has in fact helped keep the peace agreement going. It is the “politics of collusion” that bring together the various party leaders and ethnoregional political barons and has made it possible to manipulate important components of the Kenya Dialogue and Reconciliation process according to their own needs.
⁴¹
The National Accord has nonetheless achieved more than a mere ceasefire. It has created significant momentum for constitutional reform and the strengthening of election-related institutions. Some judicial reform and other measures might follow. Even after several years, however, it has failed to compensate or relocate hundreds of thousands of victims of the 2007–08 violence, many of whom still languish in IDP camps. Two key issues were left off the National Dialogue and Reconciliation agenda—the disarmament of militias and the protection of witnesses—which will cause greater insecurity at the local level and facilitate future outbreaks of widespread, organized political violence, including in conjunction with the next general elections, to be held by March 2013.