|
Get AfricaFocus Bulletin by e-mail!
Format for print or mobile
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.
AfricaFocus Bulletin can be reached at africafocus@igc.org.
Please write to this address to subscribe or unsubscribe to
the bulletin, or to suggest material for inclusion. For more
information about reposted material, please contact directly
the original source mentioned. For a full archive and other
resources, see http://www.africafocus.org
|
