Current Developments and Background Relating to the 2007 Post-Election Violence in
Kenya
Background
1. Kenyans for Peace with Truth and Justice (KPTJ) is a coalition of over 30
organisations that have played a leading role in galvanising civil society and
mobilising critical voices within the country, the Kenyan diaspora, and
internationally to actively campaign for full accountability for the events that
occurred in Kenya following the disputed presidential election. KPTJ maintains that
there can be no sustainable peace in Kenya without seeking justice through
prosecution of those responsible for orchestrating and provoking the violent events
following the December 2007 elections.
2. The Kenyans for Peace with Truth and Justice (KPTJ) wishes to bring to the
attention of the Pre-Trial Chamber some information of value in regard to its pending
decision on the Kenya situation. KPTJ believes that there is sufficient evidence to
show that violence was planned; that there was official support (policy) and
facilitation of some of the groups that perpetrated violence.
3. KPTJ continues to speak out against Kenya’s perverse culture of impunity. KPTJ is
committed to assisting in whatever way possible to provide the necessary, objective
and adequate evidence to assist ICC in undertaking this responsibility.
The ICC and the Prosecutor’s request
4. KPTJ welcomes the Prosecutor’s request to begin investigations on Kenya because
ICC has the potential to start a process that can undermine impunity and put a stop to
the culture where the law is often applied selectively, or not at all. KPTJ thus wishes
to bring to the attention of the Honourable Pre-Trial Chamber various matters
relevant to its decision of February 18, 2010 requesting the Prosecutor to provide
clarification and additional information to enable it to assess whether or not to
authorise the commencement of an investigation with regard to the situation in
Kenya.
Blocking attempts for justice in the Kenya Situation
5. In 2008 the Kenyan National Dialogue and Reconciliation Agreement established a
Commission of Inquiry into the Post-Election Violence (the Waki Commission). The
Commission conducted its inquiry by visiting many parts of the country, reaching out
1
to victims, talking to human rights defenders, and collecting information from many
other people who had relevant information on the violence1. The Commission
recommended the setting up of a Special Tribunal for Kenya to try alleged
perpetrators of the violence, failure to which its evidence, with a list of people
believed to hold the highest responsibility for the violence, would be handed over to
the Prosecutor of the International Criminal Court (ICC). It also recommended
undertaking of police reforms and establishment of an office of Special Rapporteur
on Violence against Women2.
6. The government is yet to act substantively on the majority of the recommendations
one and a half years on. The Cabinet as well as Parliament adopted this report but
have failed – on three different occasions - to establish a Special Tribunal to try
perpetrators. Attempts to establish the tribunal have simply failed. Senior politicians
in Cabinet and Parliament have joined to block attempts to establish the Special
Tribunal for Kenya and to try any perpetrators.3 Thus the government has failed to
act on perpetrators of post election violence because powerful interests keen on
evading justice continue to block these attempts.
Lack of political commitment: not capacity
7. More than two years after those tragic events, proceedings so far instituted with
regard to the post-election violence are scanty. Failure to have seriously conducted
investigations and prosecutions demonstrate that Kenya is unwilling to prosecute
these crimes:
a. Decisions are being undertaken to shield the persons concerned from
criminal responsibility for crimes within the jurisdiction of the court
b. There has been unjustifiable delay in instituting proceedings, which, in the
circumstances, is inconsistent with intent to bring the persons concerned to
justice.
c. The very few proceedings that have been conducted have not been done
independently or impartially and are being handled in a manner
inconsistent with intent to bring the concerned persons to justice.
d. Thus there has been no successful prosecution of anyone accused of
perpetrating violence. Investigations have been deliberately weakened and
there are no efforts undertaken to fast track the cases.
8. The Government of Kenya has had more than sufficient time to meet its obligations
in relation to investigating and trying those involved. But political expediency has
1
Kenya National Dialogue and Reconciliation Committee, Agreement on the Establishment of the
Commission of Inquiry into Post-Election Violence, March 4, 2008, available at www.dialoguekenya.org
2
Cf. http://www.dialoguekenya.org/docs/PEV%20Report.pdf
3
To date, the first attempt to set up a Special Tribunal for Kenya was rejected by parliament by a vote of
101 votes to 93. The second attempt failed at Cabinet level and the third attempt which was initiated by a
Private Member of Parliament, is the subject of a parliamentary boycott with MPs failing to attend debate
on
the
draft
law
in
the
necessary
numbers.
See
for
example,
http://www.parliament.go.ke/parliament/downloads/tenth_forth_sess/11.11.09A.pdf p.14
2
generally prevented the government from acting. It has failed to show the requisite
political will that it can enact a credible domestic mechanism to try those who were
behind the post-election violence.
9. The Kenya Government cannot be relied upon to pursue international justice, even
when the victims are its own citizens. Swift action is, therefore, needed to change the
landscape and divert Kenya from its current course: to move from ongoing impunity
to accountability, and to prevent the victimisation of a new generation of Kenyans.
Government blocks efforts to prosecute
10. Given the deliberate failure of the Cabinet and Parliament to pass a law setting up the
tribunal, the ICC must now seize the matter as a forum of last resort as contemplated
in the Rome Statute. Moreover, opinion polls continue to show that many Kenyans
are in favour of ICC intervention because the government has no political
commitment to ending impunity 4. Powerful individuals within government continue
to block efforts to establish such a mechanism because they fear they could be its
targets. Without acting today, forces of impunity will regroup and fight back or push
the country to another precipice: with much greater violence.
Progress on Domestic Investigations
11. Since the Prosecutor submitted his request, no new proceedings have been instituted
with regard to the incidents and acts that relate to the Prosecutor’s request.
Highlighting the dysfunctional nature of Kenya’s justice system, of the 1,133
homicides documented by the Commission of Inquiry into Post-Election Violence,
only 19 investigations were opened by the police, with four prosecutions for murder
brought before the courts. So far, there has only been one conviction, involving the
killing of state officials. 5In the headline instance involving the killing of at least 30
people in a church, a high court judge in Kenya expressed his frustration at the casual
way in which criminal investigations are conducted by the police, making it
impossible for the Judiciary to convict alleged criminals.6
4
See the Fourth Review Report of the Kenya National Dialogue and Reconciliation (KNDR) Monitoring
Project 2009, available at http://south.co.ke/Downloads/Reports/4threviewreport.pdf, retrieved on 12/03/10,
as well as Annex Three to this report, which is attached.
5
A recent government report compiled by government lawyers under the stewardship of the Director of
Public Prosecutors dubbed the “Team on Review on Post-Election Violence-Related cases” disclosed to the
media – The Standard newspaper - that many cases failed to proceed due to lack of evidence and raised
serious concerns on the availability and ability to collect evidence. Available at
http://www.standardmedia.co.ke/InsidePage.php?id=2000000428&catid=4&a=1 , published 07/01/10
6
See ‘Out in the Cold’ a report by the Kenya Human Rights Commission, p.54, available at
http://www.khrc.or.ke/images/2009-12/Binder1.pdf. The report also highlights in great depth the fate of
internally displaced people in Kenya; and “Four Suspects Linked to Kiambaa Church Killings Acquitted’,
The Standard, May 1, 2009
3
Witnesses killed and others Continue to Receive Death Threats
12. For the past one year, witnesses who testified before the Commission of Inquiry into
the Post-Election Violence and could testify again in future trials have been
subjected to escalating threats and other forms of intimidation against them. So far, at
least two people who could be witnesses in future trials have been killed. Many
others have had to flee into exile while others live under constant threat and
intimidation. 7 Although the minister of justice acknowledged that witnesses had
been intimidated, beaten, and in some instances forced into hiding, neither the
Ministry of Justice nor the Attorney General's Office took effective steps to protect
the witnesses8.
13. The State, whose security agents were named in all major human rights reports as a
culprit in the violence, has offered no protection to potential witnesses. Instead, an
ill-equipped civil society, with donor support, has had to step in by placing some of
the witnesses in safe houses or facilitating the flight of others out of the country.
From April 2009, civil society has, with donor support, placed at least 71 human
rights defenders under protection, inside and outside Kenya, many of whom are
potential witnesses to the events under consideration by the ICC9.
The Truth Justice and Reconciliation Commission
14. In recognition of the numerous human rights violations that had occurred in Kenya’s
history since independence in 1963, one of the agreements of the National Accord
was the establishment of a Truth Justice and Reconciliation Commission. Since its
establishment in August last year, some senior Government officials have argued that
this Commission could suffice as a local mechanism for dealing with the violence
that occurred in 2008. Unfortunately, the TJRC whose mandate and temporal
jurisdiction is too wide, has no powers to prosecute and should not be propounded as
a viable alternative to a specialised domestic mechanism with the sole purpose of
bringing those responsible for crimes to account. In addition, the TJRC is at the
moment wracked by a serious credibility crisis on account of the personal history of
its Chairperson.10 Few Kenyans have confidence in that Commission to deliver on its
mandate of unraveling the truth behind the plethora of human rights violations it is
7
This has been reported by various media outlets including the local press, as well as the international
media, see for example the BBC News, ‘Kenya election violence Witnesses get death threats’, available at
http://news.bbc.co.uk/2/hi/8443673.stm. Some human rights defenders/witnesses under protection of civil
society have also been subject to death threats.
8
Cf. US Department of State http://www.state.gov/g/drl/rls/hrrpt/2009/af/135959.htm
9
Internal Report and Analysis of the Human Rights Defenders (HRDs) Protection Programme from March
2009-January 2010
10
See for example, “Tutu leads world pressure on Kiplagat to give up Truth role”, February 25, 2010, The
Daily Nation. A statement signed by prominent leading former personnel of various truth and justice
commissions around the world, including Desmond Tutu, calling on Kiplagat to resign in the best interests
of the TJRC process is available at http://www.ictj.org/en/news/coverage/article/3487.html.
4
supposed to investigate and make recommendations upon – let alone to deal with
possible international crimes.
The Current Security Situation in Kenya
15. While political violence has largely subsided, crime related insecurity is increasing;
gangs and militias that engaged in political violence during the post-election period
are increasingly turning to crime. There are fears of infiltration of former militias
into the security forces through recruitment processes which are prone to corruption
and bribery11. Recent developments point to the tenuousness of the apparent peace in
the country. In December 2009 and February 2010, over 130,000 rounds of
ammunition and assorted weaponry were found in Narok, a town in the Rift Valley
Province that was the epicenter of the 2008 violence12. Fears have been expressed of
more ammunition being hidden in different parts of the country. In the areas most
seriously affected by the violence, unrepentant local communities are reportedly
gearing up for the “next time”, egged on by national and local politicians and
businessmen.
16. The situation is complicated by allegations raised in parliament and by government
officials of the involvement of senior Administration Police officers in the Narok
illegal arms cache, with the ammunition discovered shown to have been
manufactured by government-owned Kenya Ordinance Factory Corporation, which
only produces ammunition for Kenyan security forces or government agencies 13.
17. Against such a background, reports of communities re-arming for the next round of
violence gain credence. If much of the violence in 2008 was accomplished using
machetes, clubs, bows, arrows and farm implements, the recent discovery of the
massive arms cache could be a pointer to more deadly violence to come, this time
through sophisticated weaponry.
18. Kenya’s current criminal justice system and the existing legal and institutional
regimes have not been able to deal with serious crimes.14 This conclusion is
11
cf. Transparency International Kenya, the Kenya Bribery Index, various editions at www.tikenya.org and
the United States State Department Human Rights Report 2009 at
http://www.state.gov/g/drl/rls/hrrpt/2009/af/135959.htm See also, the Kenya National Dialogue and
Reconciliation Monitoring Project Draft Report, May 2009, South Consulting, p.5
12
See for example ‘Illicit Ammunition Fuels Violence in Kenya’, February 11, 2010, ReliefWeb, available
at http://www.reliefweb.int/rw/rwb.nsf/db900sid/RMOI-82L4BZ?OpenDocument
13
cf. http://www.iansa.org/regions/cafrica/Kenya-ammo-cache.htm. The Star, “APs new focus of arms
probe”, February 5, 2010 http://multimedia.marsgroupkenya.org/?StoryID=279689&p=State+House.
Retrieved March 12, 2010
14
According to the Transparency International Global Corruption Barometer 2009, the judicial system is
perceived to be one of the most corrupt institutions in Kenya, ranked second only to public officials in the
survey. Kenya’s judiciary has repeatedly come under criticism for corruption and lack of independence.
Most recently, in October 2009, a joint mission of the International Bar Association Human Rights Institute
(IBAHRI) and the International legal Assistance Consortium (ILAC) concluded that, “Until key reforms of
the justice system are implemented, there is a risk that succession politics and electoral conflicts could
reignite. A strong, functioning justice system that enjoys the trust of Kenyan citizens is a crucial element in
5
supported by the findings of the UN Special Rapporteur on extrajudicial, summary
and arbitrary executions, Phillip Alston15. Even though Kenya has a national judicial
system, it is corrupt and feeds an environment of insecurity. A recent high-level
international mission to Kenya concluded that “…if recurrent conflict in Kenya is to
be avoided, there is a clear, present and incontrovertible need for judicial reform.
Public confidence in the judicial system has virtually collapsed”16. The ICC has a
historic opportunity to deter the masterminds of such predatory enterprises and act as
a deterrent in alleviating future conflict by granting the Prosecutor’s request to open
investigations that could reveal the persons behind serious crimes as an essential
interest of the international community as a whole. Criminal prosecution of those
accused of committing these crimes is a fundamental aspect of the victims’ rights to
justice and Kenya’s situation regarding those who may have been responsible for
violations on a massive scale. It is the only way to prevent recurrence of the violence
witnessed in Kenya.
Linking the Government and Individuals to Specific Crimes and the Chain of
Responsibility
19. The violations committed in the post election period encompassed very serious
offences because they constituted attacks on the most fundamental aspects of human
dignity. Secondly, the violations were part of a broader context of large scale and
massive infringements on human dignity linked to a wider practice of misconduct.
Thirdly, the state officials perpetuated some of these violations. The offences were
carried out with the complicity, connivance or at least the toleration of the people in
positions of leadership and authority within the Kenyan government system. This
clearly implies existence of government official policy to support some forms of
violations during the period.17
Official support and policy
20. An analysis and comparison of the incidents of violence does establish on a
preliminary basis that to these acts may have been committed as part of a policy to
commit systematic attacks against a civilian population, and that they were ordered,
directed or coordinated by persons or groups of persons acting with a common
purpose. The Commission of Inquiry cited above noted for instance that the
government deliberately deployed loyal security agents to opposition areas before the
voting day and that there was supply of ammunitions during the violence.
the
country’s
path
to
recovery”.
Report
available
at
http://www.ibanet.org/Document/Default.aspx?DocumentUid=DCD20276-7C7C-4321-92A1DD43531F93A1
15
Available at UN Human Rights Council, Report of the Special Rapporteur on extrajudicial, summary or
arbitrary executions, Mr. Philip Alston advance unedited version, UN Doc. A/HRC/11/2/Add.6, May 26,
2009
16
Ibid. IBAHRI/ILAC report, pp. 7-8.
17
See Kenya: Amnesty International condemns excessive use of force by police, available at
http://www.amnesty.org/en/for-media/press-releases/kenya-amnesty-international-condemns-excessiveuse-force-police-20080118
6
Furthermore, the report cites many instances where state officials held meetings to
develop official position on the violence.
21. An investigation by the Office of the Prosecutor will put in motion the process of
revealing those whom they suspect to be responsible for gross violations of human
rights and especially those they firmly believe were responsible at senior levels
within government, security agencies or political parties for acts of omission and
commission that orchestrated or provoked the violence. The naming of suspects,
even in the most circumspect fashion, has so far yielded death for two potential
witnesses and threats for numerous others. These threats point to the existence of
powerful individuals who fear being unmasked should a full-scale investigation
commence18
The Dynamics and History behind the Violence in Kenya
22. Violence has been used as a means to obtain political power in Kenyan elections
since 1992. The scope and intensity of the most recent outburst in 2007 and 2008
was something few had anticipated. Previous episodes as narrated especially in the
Report of the Judicial Commission of Inquiry into Ethnic Violence in 1992 and
199719 remain a hallmark of Kenya’s history of bloodletting20. The plight of those
who were killed, injured, sexually violated, displaced from their homes or lost
property remains a scar on the conscience of the nation. Obviously, if the cries of the
dead and dying had been heeded in 1992 and 1997, perhaps the country could have
avoided the 2007 post election violence which left behind bereaved, homeless and
hungry people, forced from their homes.
23. There must be a reckoning for those responsible for this recent severe humanitarian
crisis, where armed gangs could somehow be allowed by security forces to rape
women (with security forces also perpetrating many of these rapes), beat and maim
elderly citizens unable to flee, torch their homes and steal their property. For many of
the victims, there was nowhere to go. Livelihoods were not only destroyed, two years
after the signing of the National Accord and Reconciliation Agreement, most of these
families are living in makeshift shelters or squatting with relatives, still clutching title
deeds whose validity the State failed to protect and it would be a great injustice if
those responsible -- by omission or commission -- are not held to account.21
18
A former MP for Naivasha, and former assistant minister for environment Mrs. Jayne Kihara, is widely
cited as expressing fears that she would become a “sacrificial lamb” for “powerful forces” to be prosecuted
at the Hague Saturday Nation, December 5, 2009, “Why former MP thinks her name is in Waki envelope”.
19
Report of the Judicial Commission of Violence into the Ethnic Violence in Kenya, 2002
20
For example, Oxford historian David Anderson notes that “…in Kenya’s politics, it has become the norm
for politicians to hire thugs to do their dirty work, especially at election time”, D Anderson, How violence
infected
Kenya’s
democracy,
The
Independent,
30
January
2008,
http://www.independent.co.uk/opinion/commentators/david-anderson-how-violenceinfected-kenyasdemocracy-775619.html, accessed on 12/02/10
21
This has been highlighted in various newspaper reports, see: ‘Rape victims awaiting justice’, Monday
March 8, 2010, Daily Nation; ‘More talk, no action risks worse chaos, victim warns’ Monday March 1,
2010, The Standard; ‘IDPs risk diseases as heavy rains pound their tattered tents’, Thursday March 4, 2010,
The Star.
7
Consequences of Declining to Authorise an Investigation in Kenya
24. The Rome Statute sought to put an end to the impunity of perpetrators of grave
crimes threatening the peace, security and well-being of the world by prosecuting
those responsible for such crimes. Failure to authorise an investigation amounts to
giving carte blanche to the ethnic warlords who control Kenya’s politics through
reliance on the language of ‘forgive and forget’ and putting fear in people’s hearts
and minds when they speak out.
25. For the victims of the violence, the ICC is the last line of defence against rapacious
and unaccountable governance. Failure to authorise an investigation at this time
would fall short of the repeatedly declared commitment of the international
community to never again turn its back on hapless citizens exposed to international
crime. Instead, such an outcome would strengthen the hand of a powerful cabal of
local ruling elites interested in covering their misdeeds and/or complicity in the
violence. In fact, it could also create potential for misinformation about the Court to
grow.
26. If the Pre-Trial Chamber declines to grant the Prosecutor’s request, the Court risks
appearing to abandon Kenya. This would be a profound moral failure on the
Chamber’s part. A denial of the Prosecutor’s request will only serve to perpetuate
Kenya’s savage cycle of retributive ethnic violence in a deeply divided society and
would trap communities in past hatreds.
Potential Impact of Having Limited Investigations
27. Kenya’s case is crucial towards establishing credibility for the ICC. Politicians with
designs on power are watching the Pre-Trial Chamber closely. Whatever decision the
Chamber arrives at, if the ICC’s intervention succeeds, not only will Kenya reap an
immediate political reward, this will be a legacy of far-reaching dimensions for the
future.
28. As the Prosecutor has deemed the post election violence in Kenya to be of sufficient
gravity to warrant coming before you seeking authorization to open an investigation,
it is telling that Kenya which has a right to contest the Prosecutor’s assessment has
not done so, leading to the inference that Kenya has no objections to the exercise of
jurisdiction by the ICC. The Kenya Government has not expressed any legitimate
worry regarding the Prosecutor taking such an important decision as requesting for
initiation of an inquiry.
Concluding Remarks
29. Kenya’s national courts have neither the desire nor the means to initiate and conduct
meaningful proceedings on the post-election violence. While the first and best option
for justice would have been for Kenya to try its own, the Government of Kenya lacks
8
political commitment and has shown unwillingness to investigate let alone prosecute.
Political expediency informs this unwillingness; some in government fear that they
will lose their political power if they prosecute certain individuals. This has had an
important consequence: agents of impunity have regrouped to block any attempts to
initiate or establish a domesticate mechanism. This regrouping has seen realignments
in political alliances, with former opponents on both sides of the violent political
divide that obtained in early 2008 uniting to confront the perceived threat of ICC
intervention22 This underlines the prevailing cynicism and lack of concern for the
victims of the violence.
30. The ICC must now intervene since our criminal justice system has shown no capacity
to vindicate international crimes. Thus under the Rome Statute, failure of the
Government to act should logically lead to ICC intervention and this will encourage
Kenyan policy makers to maintain a more efficient justice system to contest and
punish violations of international law.
31. KPTJ acknowledges that the threshold for ICC intervention is high, its jurisdiction
being limited to the most serious crimes of concern to the international community as
a whole and not with lesser crimes or other violations that are in the province of
national systems - or with monitoring human rights below the limit of such lesser
crimes. KPTJ nonetheless maintains that the crimes committed in Kenya in the
period following the disputed 2007 elections do meet this threshold and therefore
invites the intervention of the ICC.
(ends. KPTJ, March 12 2010, Nairobi)
See numerous media reports of shifting, opportunistic alliances amongst politicians e.g. “Raila-Ruto
fallout might spur alliance between Kikuyu and Luo, Daily Nation, October 23, 2009 available at
http://www.nation.co.ke/News/politics/-/1064/676228/-/xtnqi7z/-/index.html
22
9