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Kenya: Impunity & Elections, 1

AfricaFocus Bulletin
Jan 23, 2012 (120123)
(Reposted from sources cited below)

Editor's Note

"Public support for the ICC remains high. A majority of the respondents - 64 per cent - are happy that the ICC is pursuing the six suspects. ... the perception that the government is unlikely to conduct genuine investigations, or prosecute powerful individuals, has sustained high support for the ICC as the justice mechanism of last resort." - Kenya National Dialogue and Reconciliation (KNDR) Monitoring Project, January 2012

Opening a very complex year of legal and political developments in Kenya, the International Criminal Court today issued pre-trial indictments against four prominent Kenyan political figures, including rival presidential candidates William Ruto and Uhuru Kenyatta, for crimes during the post-electin violence in late 2007 and 2008 (see http://www.icc-cpi.int /direct URL http://tinyurl.com/7ysluo5) Charges were also issued against Cabinet Secretary Francis Muthaura and radio executive Joshua Arap Sang. Charges were not filed against two other suspects, Postal Corporation chief Hussein Ali and suspended government minister Henry Kosgey.

For additional news and reactions from the Kenyan press, see http://allafrica.com/kenya.

This AfricaFocus Bulletin, sent out by e-mail today and available on the web at http://www.africafocus.org/docs12/ken1201a.php, contains an overview from an International Crisis Group briefing on the ICC and Kenya, and the executive summary of the most recent monitoring report from the Kenya National Dialogue and Reconciliation (KNDR) Monitoring Project. The KNDR reports, available at http://www.dialoguekenya.org/mreport.aspx, provide systematic reviews of the process since the 2007-2008 election violence.

Another AfricaFocus Bulletin, not sent out by e-mail but available on the web at http://www.africafocus.org/docs12/ken1201b.php, contains the December speech by Chief Justice Willy Mutunga, and the executive summary and key recommendations on U.S. policy from a policy brief from the Friends Committee on National Legislation on the context for Kenya's next elections.

Regular updates on the ICC process and Kenya are available at The International Criminal Court Kenya Monitor (http://www.icckenya.org), a project of the Open Society Justice Initiative. There is a concise summary of the background to the ICC cases at http://www.icckenya.org/background/

For comprehensive legal updates from Kenya, see http://www.kenyalaw.org

Two very valuable additional reports published last year, with extensive background information but too detailed to be excerpted in AfricaFocus, are the May 2011 special issue of Pambazuka News on Justice for the People of Kenya (http://www.pambazuka.org/en/issue/528), and the August 2011 publication by the Kenya Human Rights Commission (Lest We Forget: The Faces of Impunity in Kenya). the KHRC report provided a detailed review of a large number of governmental reports on corruption and human rights violations, published and unpublished, for the period 1992 to 2010. It notes that there is a plethora of well-documented information. "What has been lacking", it noted, "has been the political will to follow up on the recommendations made in these reports - to investigate and call to account those found responsible for the violations." (Report can be downloaded from the KHRC site http://www.khrc.or.ke / direct URL: http://tinyurl.com/3juundd).

For previous AfricaFocus Bulletins on Kenya, visit http://www.africafocus.org/country/kenya.php

++++++++++++++++++++++end editor's note+++++++++++++++++

Kenya: Impact of the ICC Proceedings

Africa Briefing No. 84 9 Jan 2012

International Crisis Group
http://www.crisisgroup.org / direct link http://tinyurl.com/7v6ee9j

Nairobi/Brussels, 9 January 2012

Overview

Although the mayhem following the disputed December 2007 elections seemed an exception, violence has been a common feature of Kenya's politics since the introduction of a multiparty system in 1991. Yet, the number of people killed and displaced following that disputed vote was unprecedented.

To provide justice to the victims, combat pervasive political impunity and deter future violence, the International Criminal Court (ICC) brought two cases against six suspects who allegedly bore the greatest responsibility for the post-election violence. These cases have enormous political consequences for both the 2012 elections and the country's stability. During the course of the year, rulings and procedures will inevitably either lower or increase communal tensions. If the ICC process is to contribute to the deterrence of future political violence in Kenya, the court and its friends must explain its work and limitations better to the public. Furthermore, Kenya's government must complement that ICC process with a national process aimed at countering impunity and punishing ethnic hate speech and violence.

In the past, elites have orchestrated violence to stop political rallies, prevent opponent's supporters from voting, and - as in the 2007-2008 events - intimidate rivals. In the aftermath of the crisis, a Commission of Inquiry into Post-Election Violence (CIPEV), chaired by Kenya Court of Appeal Judge Philip Waki, was established to investigate the facts and circumstances of the election violence. Among its major recommendations was creation of a Kenyan special tribunal to try the accused organisers. Mindful of the history of political impunity, it recommended that if the government failed to establish the tribunal, the Panel of Eminent African Personalities that under Kofi Annan's chairmanship mediated the political crisis should hand over a sealed envelope containing the names of those who allegedly bore the greatest responsibility for the violence to the ICC for investigation and prosecution. President Mwai Kibaki and Prime Minister Raila Odinga signed an agreement for implementation of CIPEV's recommendations on 16 December 2008, and parliament adopted its report on 27 January 2009.

A bill to establish a special tribunal was introduced twice in parliament but on both occasions failed to pass. Not even last-minute lobbying by the president and prime minister convinced parliamentarians. Annan consequently transmitted the sealed envelope and the evidence gathered by Waki to the ICC chief prosecutor, Luis Moreno-Ocampo, on 9 July 2009. Four months later, on 5 November 2009, the prosecutor announced he intended to request authorisation to proceed with an investigation to determine who bore greatest responsibility for crimes committed during the post-election violence.

When Moreno-Ocampo announced, on 15 December 2010, the names of the six suspects, many of the legislators who had opposed the tribunal bill accused the court of selective justice. It appears many had voted against a Kenyan tribunal on the assumption the process in The Hague would be longer and more drawn out, enabling the suspects with presidential ambitions to participate in the 2012 election. To many Kenyans, however, the ICC's involvement sends a signal that entrenched impunity for wealthy and powerful politicians will not be permitted to endure. If national courts are unable or unwilling to prosecute perpetrators of gross electoral violence, the international court can. For a political class used to impunity, this is a likely game changer for how politics are conducted in the country.

The 2012 presidential and legislative elections will play out against the backdrop of a significant ICC role that Kenyan politicians will be unable to influence. Other factors also will come into play. The incumbent president, Mwai Kibaki, will not run. The constitution promulgated on 27 August 2010 has created powerful new positions, including that of an independent chief justice, and raised the bar for presidential aspirants. A successful candidate must obtain an absolute majority of votes as well as more than a quarter of the votes in at least 24 of the 47 counties. Political jockeying and alliance formation have already begun in earnest, in part as a response to the ICC proceedings.

The two most prominent suspects, Uhuru Kenyatta (the deputy prime minister, finance minister and son of Kenya's first president) and William Ruto (the former agriculture and higher education minister), as well as the vice president and many other like-minded politicians, are exploring the possibility of uniting behind one candidate. The ICC is expected to announce in late January 2012 whether it has confirmed charges against each of the six suspects and will proceed to trials. The court's rulings will introduce an additional - possibly crucial - factor into an already pivotal election.

If the court, as is expected, confirms charges for both cases on the same day, this could be a crucial step to help defuse a rise in ethnic tensions. There are real fears that if charges are dropped for suspects of one ethnicity and confirmed for those of another, ethnic tensions could increase sharply, regardless of the legal merits. The ICC's decisions will continue to play a pivotal role in Kenya's political process, especially in the crucial 2012 election. The court appears cognisant that these will not be viewed by many Kenyans simply as legal decisions and that the timing and framing of proceedings and rulings will inevitably have an impact in heightening or tamping down tensions. Accordingly:

  • The International Criminal Court should recognise that public statements warning suspects and other politicians not to politicise the judicial proceedings, such as Judge Ekaterina Trendafilova's on 5 October 2011 noting that continued hate speech would be considered in the pre-trial deliberations, can dampen and deter aggressive ethnic and political rhetoric.
  • While the ICC is still popular, the Kenyan public's approval of its role has been declining, due to deft media manipulation by the suspects and their lawyers. In order to counter misrepresentations of the court's decisions, the court and its supporters, including civil society and other friends, should intensify public information and outreach efforts to explain its mandate, workings and process.
  • The Kenyan government must recognise that the fight against political violence and impunity is its responsibility. It needs to close the impunity gap by complementing the ICC process with a parallel national process. It should begin by directing the attorney general to investigate other individuals suspected of involvement in the violence that followed the 2007 elections with a view to carrying out prosecutions in the domestic courts.
  • The government should also support Willy Mutunga, the new chief justice, in his efforts to reform the judiciary and restore public faith in Kenya's system.

The Kenya National Dialogue and Reconciliation (KNDR) Monitoring Project

Progress in Implementation of the Constitution and other reforms

First Draft Review Report

January 2012

The monitoring reports from the Kenya National Dialogue and Reconciliation process are available at http://www.dialoguekenya.org/mreport.aspx

1. Since 2008, significant progress has been made towards achieving the goal of Kenya National Dialogue and Reconciliation (KNDR) process, which was to secure sustainable peace, stability and justice in Kenya through the rule of law and respect for human rights. Under the KNDR agreements, the main parties to the 2007 elections dispute committed to immediately stop violence, expeditiously facilitate durable solutions to victims of that violence, end the political crisis through power-sharing and find lasting solutions to underlying causes that had sparked the crisis. The promulgation of the new constitution in August 2010 was one of the most important outcomes of the KNDR process and the hallmark of Kenya's reform journey since independence.

2. South Consulting has been monitoring the implementation of agreed reforms since2008. This is the fourth review report for the year 2011. It is also the fourth review report since the new constitution came into force. Previous reports covering the period between December 2008 and October 2011 can be found at http://www.dialoguekenya.org

3. This report covers the September to December 2011 period. Like the previous report, it focuses on what has been achieved thus far and the country's preparedness for the next General Election in 2012. It discusses what needs to be done to consolidate reforms under the new constitution, prepare for a change through a national General Election and to manage a peaceful transition from the current centralised system of governance to a devolved structure. It also discusses the unfinished business from the previous General Election, particularly the problem of impunity, Internally Displaced Persons (IDPs) and lack of reconciliation, and how this 'baggage' might impact the dual transition.

4. The report has utilised both quantitative and qualitative data. Quantitative data derives from a national survey conducted in December 2011. Qualitative data is drawn from interviews with key informants from government ministries, humanitarian and civil society organisations, the media and members of the public. Secondary sources have also been reviewed for additional information.

Findings

5. The end of 2011 shifts attention away from fundamental reforms to the next General Election. The socio-economic context for the General Election is also a cause for anxiety. Inflation has been on the rise and there are signs of an economic slowdown reminiscent of experiences around election time in the past. Nonetheless, the campaigns have begun in earnest and popular demand for reforms appears to be waning.

6. On the whole, global economic conditions indicate that the Kenyan economy is likely to remain in a state of flux, a likelihood exacerbated by the military incursion into Somalia and measures to address domestic security implications. This notwithstanding, Kenyans are very supportive of the government's fight against the Al Shabaab group in Somalia.

Implementation of the New Constitution

7. The promulgation of the constitution in 2010 anchored institutional reforms and filled legal lacunae that had long prevented change. As reported in the previous review report, the constitutional implementation process remains on track: the necessary legal and institutional framework for implementation is in place.

8. By the end of August 2011, Parliament had passed all Bills listed in the constitution as requiring enactment within a year of its promulgation. Once the deadline was met, the pace of passing Bills slowed down. In this reporting period, nearly all of eight Bills due on 26 February have been taken to the Constitution Implementation Commission for review. Lethargy in producing Bills might replicate the last-minute rush witnessed in August 2011, and sabotage public scrutiny of these proposed laws. This calls for greater civil society oversight and advocacy for expedient legislative process.

9. Lack of consensus and open disagreement between key agencies such as the CIC and the Office of the Attorney General run the risk of undermining public support for the implementation process. Allegations of lack of political will, reinforced by attempts to introduce multiple amendments to the constitution and delays in completing preparations for the devolution legislative framework are likely to give the impression that it is business as usual.

10. As the next General Election approaches, there is mounting public concern that critical Bills for the transition to the devolved system of government have not been passed. Some have not even been drafted, let alone presented for debate. At the same time, tension between ministries over the nature of devolution and financial management continue to delay enactment of requisite laws. Given the complexity of the devolved structure, further delays are likely to cause panic or occasion a constitutional crisis. Many people, up to 47 per cent of survey respondents, see divisions among politicians such as these, as the main hindrance to the implementation process. Public vigilance is required to fight off the vested interests that could undermine the spirit and letter of the constitution.

Electoral Reforms and Preparedness for Elections

11. Some electoral reforms have been made in readiness for the General Election in 2012. Requisite laws have been passed as required by the new constitution. An independent electoral body has been set up and staffed through a competitive recruitment process. Public confidence in the IEBC is on the rise. The new independent electoral body has developed a work-plan the next General Election.

12. However, there is uncertainty about constitutional provisions on gender balance in elective offices, the election date and delimitation of constituency boundaries. There have been proposals to amend the constitution to address some of these concerns. But the public is not generally supportive of all the proposals. While many support the amendment to address the gender equity gaps, survey respondents were not amenable to all proposals on the election date.

13. The absence of a comprehensive civic and voter education is a cause for concern. Plans have already been finalised to roll out activities in this regard. But given that the country is approaching the election date, it would be important to identify priority areas in this respect. Given that 93 per cent of the respondents know only a little or nothing about the constitution, civil society organisations need to begin voter and civic education early to avoid having some clauses interpreted politically, as happened during the 2010 referendum.

14. Equally important in regard to preparations for elections is the observation that political parties are yet to institutionalise. They appear to be unprepared for the election and therefore one may argue that their parties may prefer a date that is convenient to them. Although they are required to comply with the political parties law, many are yet to commit to it and change their culture. Their weakness as institutions could have spill over effects into the Coalition government. This raises an important concern over whether the Coalition is also cohesive enough to oversee the transition and the conduct of the elections. If divisions in the Coalition intensify, there is no institutional mechanism to resolve disputes and ensure that the divisions between the two parties do not immobilise the government. There is nothing to ensure that this form of institutional immobilism will not affect how elections are conducted.

The Legacy of Post-Election Violence

15. Even as the country prepares for the next General Election, the legacy of 2007 continues to hang over Kenya; the International Criminal Court (ICC) is set to rule on confirmation of charges in January 2012. Lack of consensus in government about how to respond to the independent investigation by the ICC, and whether to punish or grant amnesty to middle and lower-level perpetrators of the postelection violence has sent mixed signals about dealing with impunity as the country approaches another national election. The pursuit of accountability is even less likely to draw political attention or support as the elections approach.

16. Public support for the ICC remains high. A majority of the respondents - 64 per cent - are happy that the ICC is pursuing the six suspects. Despite continued high support for the ICC, public confidence in a local process remains relatively low in spite of the current judicial reforms. In particular, the perception that the government is unlikely to conduct genuine investigations, or prosecute powerful individuals, has sustained high support for the ICC as the justice mechanism of last resort.

17. The government has continued to support IDPs to find durable solutions by giving them money, farm inputs, land and houses. The Parliamentary Select Committee on Resettlement of IDPs finalised a draft Bill on the Protection and Assistance of IDPs. In December, the government appointed an inter-ministerial task force to expedite the resettlement of IDPs before the next General Election. However, as reported in the previous quarter, allocation of land to IDPs rather than all landless people has generated new narratives of favouritism of members of one community, and undermined peace and reconciliation in some return areas.

18. Reconciliation and social harmony in areas most affected by the post-election violence remains fragile. People remember what happened in 2007. Lack of political support for peace and reconciliation efforts by government and nongovernmental organisations has created a climate of silence and suspicion. The Truth, Justice and Reconciliation Commission (TJRC) and the National Cohesion and Integration Commission (NCIC) have continued their efforts to inquire into human rights violations and prevent future violence, respectively. However, without political support for the work of these commissions, their impact on ethnic relations and deterrence capacity for future dissonance remains uncertain.

Conclusions

19. Public anxiety over the socio-economic and political challenges facing the country could increase as the next national General Election approaches. The high cost of living is affecting everyone and occasioning industrial action by groups hitherto silent on the issue of better wages and services. These are new pressures on the economy, whose growth tends to slow every election year. Increased public disillusionment is showing in the perception of the government's ability to manage economic wellbeing. Up to 80 per cent of those interviewed said they were dissatisfied with the government's performance in managing the economy, and an equal percentage deplored its responsiveness to unemployment. Managing these dynamics is critical this time round to prevent them from conflating with Kenya's major political fault lines.

20. Implementation of the constitution is on track but there are fears that vested interests are again gaining an upper hand to prevent the finalization and passage of critical laws. Furthermore, the window for undertaking brave measures has closed. The campaigns for the next General Election have gained momentum and will soon constrain the undertaking of important reforms. And if leaders begin to politicize some of the implementation processes and demand amendments that would remove important planks from the constitution, then the implementation will be in disarray. These efforts could reduce the momentum for constitution implementation.

21. Preparations to usher in the devolved system of government are experiencing difficulties owing to lack of consensus among some of the key players, particularly the ministries of Finance and Local Government. Delays in finalizing critical Bills could affect the process of laying a solid foundation for the county government. These delays could slow the pace at which relevant measures for setting up county governments are undertaken. The county governments will be introduced at once and therefore all preparations should be completed and anchored on a solid legal and policy framework.

22. The next General Election marks a major turning point in Kenya because it will lead to immediate operationalisation of the central and county governments. For this reason, it is important that adequate preparations be made to transit the country to the two government systems. Indeed, many people have their eyes on the county as a solution to local development problems - including imbalances in regional development. It is important, therefore, to do things right and in a manner that responds to this aspiration.

23. Finally, it is important to underline that the Coalition government has not been very cohesive during much of its time. Although it has matured over time, it is important to establish a solid framework to resolve any disputes that may arise now and the time of conducting the next general election. Their divisions especially over power sharing could have negative consequences on the electoral process. Furthermore, if divisions deepen before the general election, ensuing institutional immobility will make it difficult for the government to operate as one. A framework to ensure coherence must be put in place - reactivating the Committee for the Management of Coalition Affairs is critical at this stage.


AfricaFocus Bulletin is an independent electronic publication providing reposted commentary and analysis on African issues, with a particular focus on U.S. and international policies. AfricaFocus Bulletin is edited by William Minter.

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