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While the ICC (International Criminal Court) may do its part in ending an entrenched culture of impunity in Kenya, write Leigh Brownhill and Kiama Kaara, it is the Kenyan people, not the ICC, that will play the bigger part in achieving the noble but elusive goal of peace.

It is no coincidence, in our minds, that the promulgation of the new constitution in Kenya on 27 August 2010 was soon followed by the signing of 16 articles of understanding by the Kenyan government and the International Criminal Court (ICC). For it was against social movements’ 20-year pursuit of the new law that the state had begun to retaliate with election violence.

When, in the early 1990s, democracy activists established peaceful social movements for human rights and a new constitution, the state responded with collective punishment. This state violence continued in a pattern of acute repression and brute force, setting in place a cycle best exemplified by the calculated and deliberate occasioning of ethnically orchestrated election-related violence. The final passage of the constitution in August 2010 and the launching of investigations into election violence by the ICC have emerged organically from this shared, tumultuous history of peaceful social movements for democracy and violent state repression.

Before delving any further into this history (in order to find lessons for the present and future), let’s return briefly to the last referendum held on the constitution in 2005, for the parties and political personalities who featured prominently then have remained central to political developments since that time. Some have broken ranks and are forming new alliances, and quite a few find their political futures clouded by court cases, including the ICC’s cases. Despite this, the personalities of 2005 are key to the immediate political future of the country. Moreover, the 2005 referendum set the stage for 2007. The question of whether communities that have been so sharply polarised since 2005 are on a path of reconciliation or revenge is key to what unfolds in the years leading up to, and following, Kenya’s 2012 general election.

The draft constitution put to a referendum in 2005 had its genesis in the constitutional conference at Bomas of Kenya, established in earnest in 1997. Between 1997 and 2004, parliamentarians and citizens sat in committees and together drafted a new constitution that promised a new political dispensation. The Bomas draft came to be referred to as the ‘Wanjiku draft’ (signifying a typically ordinary, hardworking woman, sometimes portrayed as a hawker), after former President Daniel arap Moi’s snide remark that Bomas was a marketplace for all manner of people and could not be trusted to make a constitution.

Within a context of tensions amongst government officials and a wedge between most parliamentarians and the citizens of the constitutional conference, the government withdrew its support for the Bomas draft and locked citizens out of the process. The constitution became ‘a government project,’ as noted by the then justice and constitutional affairs minister. President Mwai Kibaki took the document behind closed doors and the Attorney General Amos Wako redrafted it. The Wako draft was then offered to voters.

The 2005 referendum mobilised the population into two large voting blocs, one supporting the government with a ‘yes’ vote, the other supporting the opposition politicians and democracy activists with a ‘no’ vote.

The no vote prevailed. With their referendum victory, the no team, succinctly referred to as the Orange Movement, rode public momentum and tried to capture state power in the 2007 elections under the banner of the Orange Democratic Movement (ODM) party. The yes team, though defeated in the referendum, moved towards the 2007 election under the coalition of the Party of National Unity (PNU), with the advantage of incumbency.

We will not here rehash the details of the tragic days of January 2008. Instead, we wish to understand the events of 2008 by reconsidering the violence that accompanied previous elections.

The International Criminal Court has committed to making the Kenyan case an example to the world of ‘managing violence’, ending impunity and preventing the recurrence of election-related crimes against humanity. If it is to succeed in doing so, then the historical context of the crimes the ICC is investigating need likewise to be seen and understood. It is our contention, however, that the Kenyan people, not the ICC, will play the bigger part in achieving the noble but elusive goal of peace.

The analysis to follow is not merely an exercise in hindsight. It aims instead to provide a grounded vantage point from which to offer a prospectus on future directions of change. Such a future-oriented perspective is prudent considering the coming elections of August 2012.

The violence that accompanied the 2007 election differed from previous cycles of election-related turmoil in at least three ways:

1) Previously, violence was one-sided and clearly state-orchestrated.
2) Previously, violence was confined to the pre-election period and subsided after the elections.
3) Previously, little effort was made to prosecute individuals responsible for violence, and the country remained more or less cocooned from international scrutiny.

First, in previous election seasons, including 1988, 1992 and 1997, politicians and officials of the ruling party, KANU (Kenya African National Union), were more or less openly engaged in organising, funding and arming criminal gangs and individuals to harass, beat, rape, kill and evict members of ethnic communities perceived to be aligned with the democracy movement and opposition politicians. In this sense, the violence was one-sided and emanated from state officials’ crimes of commission and omission.

In the 2007–08 case, violence was not so one-sided. The PNU and ODM stood toe to toe. Their supporters, largely though not exclusively organised along ethnic lines, attacked and counter-attacked with equal brutality and scorched-earth intensity. It became a tit-for-tat downward spiral of vengeance.

The names and faces responsible for the mayhem that ensued are legion. They include politicians, businessmen, police and mercenary gang members. Only those that investigators find bore the highest responsibility will be indicted by the International Criminal Court. What will happen to the rest is not clear. What is clear, however, is that the old tactic of rule by force of arms was no longer confined to the officials and mercenary supporters of a dictatorial KANU. It had permeated the ‘democratic’ parties in power and in opposition as well.

Second, in the three previous instances, violence was more or less confined to the period before the election. Once the elections were over, the status quo quickly returned, even if with some adjustments to the faces included in Parliament. The 2007–08 case followed a similar pattern up to a point.

Hate speech and threats were widely used in 2007 election campaigns across the political divide. But there were no mass evictions and raids on villages as had been common in the past elections.

What was new was the intensity of propaganda campaigns couched in ethnic overtones and the confident presentation by both parties that their side was going to win. The ODM cast the election as ‘The republic versus the long-ruling Kikuyu’. The PNU, on the other hand, cast it as ‘The rest versus us’. Political lines and allegiances were clearly demarcated among politicians and the general public.

A report by the National Security and Intelligence Services written before the elections was shared with both the government and leading opposition figures. The report detailed campaign-related offences across the board, called for a cessation of hostilities and recommended exploring an option of postponing the election or having separate elections at different times for different levels of government. It concluded by warning that violence was very likely to occur after the elections, regardless of who won.

It was later shared with both to the Independent Review Commission, the ‘Kreigler Commission’ and the Commission of Inquiry into the Post Election Violence, the ‘Waki Commission’.

Widespread and sustained violence broke out after the contentious poll results were announced on 29 December 2007. Attacks and counter-attacks threatened to drive the country into complete collapse. Meanwhile politicians on both sides of the political divide failed miserably to intervene effectively (if at all) to stop their constituents’ downward spiral of destruction.

The rest, as they say, is history, though this history continues to haunt Kenyans of all walks of life, from those who continue to live and die in squalor in IDP (internally displaced person) camps to politicians under scrutiny by the International Criminal Court.

And that brings us to the third difference between violence in the 2007–08 period and previous episodes. In the past, the ruling party was so firmly entrenched and ruled with such impunity and secrecy that the very idea of prosecuting those responsible for the violence was anathema to the very survival of the state, composed as it was of a cabal of fiercely loyal men who had secured immense wealth for themselves.

In addition to the failure on the part of the Kenyan government to punish perpetrators, there was too little attention given to these cases in the international legal arena. Kenya’s election-related injustices were eclipsed by the even more massive crimes that had taken place in Rwanda and Yugoslavia, where special temporary International Criminal Tribunals had been established to try the accused.

The International Criminal Court was then established by the Rome Statute in July 1998, which came into force in July 2002, with the mandate to act as a permanent global court to try the most serious crimes against humanity, war crimes and genocide. There was no ICC during the 1988, 1992 and 1997 Kenyan elections. But more than one global spotlight was to shine down on Kenya in January 2008.

For the first time in a Kenyan election, international arbitrators were invited to assist in the resolution of the political crisis at the level of the state and to appeal for the cessation of hostilities on the streets. It was in the context of this international effort to stabilise the situation that legal efforts to hold responsible those culpable for fanning or failing to prevent the troubles were first mooted by Kofi Annan and then by prosecutors at the International Criminal Court itself.

By the end of January 2008, Annan had helped craft a grand coalition of the rival political parties to resolve the election dispute. This, and a vigorous women-led grassroots peace movement, eventually brought open hostilities to an end on the streets. As for legal redress for the crimes committed, more time was needed.

When, on the third try, Parliament refused to authorise the establishment of a local tribunal, the International Criminal Court, which will not act if a case is investigated or prosecuted by a national judicial system, stepped in. While the court has done much preliminary work and investigation since 2008, its big push came only after the country had adopted its new constitution in August 2010.

What does this history tell us about the prospect for violence in the coming years? If the same politicians dominate the political scene in 2012, what is to stop the same tactics from being used? ICC prosecutions promise to dampen politicians’ use or acceptance of violent electioneering. And a vigilant country-wide peace movement holds the power to de-escalate tensions on the ground. Another positive development is the entrance into electoral politics of a whole new crop of candidates dedicated to peace and unwilling to use ethnicity as leverage.

Still the situation remains extremely unpredictable. But it will be difficult for politicians to fan violence around the next election if international spotlights – including from media, election observers and grassroots peace movements – remain trained on the Kenyan scene from now until the peaceful conclusion of the next election season.

The 4 August 2010 referendum was an historic victory for the democracy movement in Kenya. This time the electorate overwhelmingly voted yes. The no team conceded defeat. The constitution was signed into law. When the streamers and firecrackers in Uhuru Park had been swept up after the celebrations, the International Criminal Court investigators and prosecutors came to town to seek evidence and suspects for their case.

The coincidence of the timing of the two events cannot be ignored. The government was on a stable footing, citizens’ commitment to a break from the past was clear, and moreover, the legislative instruments for the resolution of historic injustices had been drafted and adopted and were awaiting implementation.

But the deeper significance of the ICC’s arrival in Kenya just at that moment lies in the stated goal of the ICC in this case, that is, to ‘manage violence’, end impunity and reconcile communities. What action is the ICC taking to try to achieve the ultimate goal of building peace in Kenya?

By the start of November 2010, the ICC had nearly completed its investigations. It had begun the process of taking statements from security officials. It had invited at least three cabinet ministers to record statements. Minister after minister and suspect after suspect began volunteering to present themselves and their evidence to the ICC investigators in the Hague. In the meantime, the ICC was reportedly scrutinising suspects’ assets for the purpose of seizing them for payment of reparations should they be found guilty. It had also scheduled a second Pre-Trial Chamber for December this year to advance the case and issue indictments.

Prosecutors had planned to put on trial between three and six highly placed individuals in two separate cases. With the new evidence being submitted, these numbers might be subject to change. But, should all go as the ICC plans, it will, after trials that may take years to conclude, imprison the guilty and seize all or part of their wealth to distribute among a number of victims of the crimes for which the perpetrators are found legally culpable.

The process seems relatively clear. What remains uncertain is the extent to which these actions will contribute to preventing the recurrence of political violence in Kenya.

We first must at least acknowledge what many commentators have already flagged: the potential for violence to erupt as a response to the indictments of the high-level politicians. Before considering means of addressing this problem, let us first consider the effect on community reconciliation of another aspect of the ICC’s work: the eventual payment of reparations to individual violence victims.

In Samburu in 1999, when individual land-mine and munitions victims were paid reparations for their losses, the money was quickly spent, dissipated and drained away from the community. Marriages broke up. Families were split. Friends became enemies. Yes, individuals were compensated. But the results within the community indicate that division and competition, rather than unity and healing, were the lasting legacies of these payments.

This should serve as a lesson in cases such as the ICC’s, in which the prevention of further outbreaks of election violence is a key goal. This is not to say that victims should not receive reparations. Rather it is to recognise that reparations come with certain perils, and should be considered as only one part of a larger process by which problems simmering within affected communities are resolved.

All Kenyans should be compensated for the harm inflicted upon them after the 2007 election. Such compensation will not come in the shape of wealth confiscated by the ICC from those perpetrators who are found guilty in the Hague. It will come only through the reintroduction of ordinary people into the process of implementing the new constitution such that the social reparations and redistributive justice it promises can be realised.

Peace and the reconciliation of communities require the redress of absolute deprivation. This can be achieved through such measures as the redistribution of land and other resources, prioritisation of land use for domestic food consumption and the return to citizens of their sovereignty and decision-making power.

So we return, once again, to the convergence of constitution-making and the redress of election violence. In brief, the redress of election violence lies in the people-centred implementation of the constitution.

Action from two directions may lower the potential risks of unrest at the next election and at other sensitive times, such as the announcement of indictments or verdicts in the ICC case. The first is the public pressure on suspects themselves to refuse to stand idly and silently by as others are harmed in their names. Key suspects’ voluntary cooperation with the ICC is an encouraging sign. But it is not enough. The second and perhaps more powerful action to minimize risks of unrest is found among the initiatives of the ordinary people of Kenya who are committed to peace.

In fact, the single most important social force mitigating against the risk of a recurrence of political violence can be found neither in the Hague, in parliamentary committee chambers nor in the wishes for continued cooperation and goodwill of suspects. It lies instead in Kenya’s vibrant and active peace movement. This grassroots movement sees the convergence of dozens of community-based organisations, religious groups and human rights networks in country-wide grassroots campaigns of peace and reconciliation.

While the ICC may be able to do its part in ending an entrenched culture of impunity in Kenya, without the peace movement and the participation of citizens in the implementation of the constitution, the ICC’s prosecutors may fail to actually make Kenya a global example of managing election violence. Ordinary Kenyan citizens have organised for more than two decades to realise a fundamental transformation of their country through peaceful social movements. It is to these quarters that we should be looking for the capacity and the deep cultural and historical groundings to generate a real and lasting peace.

With their new constitution in hand, they have the means by which to bring forth this change. And now, with an active peace movement that cuts across ethnic boundaries to unite Kenyans on the basis of life-centred values, they also have the unity and organisational power to do so.


* Leigh Brownhill is a Canadian teacher and food sovereignty researcher. She is the author of the 2009 Africa World Press book ‘Land, Food, Freedom: Struggles for the Gendered Commons in Kenya, 1870-2007’.
* Kiama Kaara is a researcher and analyst with the Kenya Debt Relief Network – KENDREN, based in Nairobi.
* Please send comments to [email protected] or comment online at Pambazuka News.