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By Amanda Dugan
At Fireside Research’s After the Spotlight event, Eddie Mandhry of NYU’s Africa House moderated a conversation on the challenges facing the country featuring John Githongo, longtime anti-corruption activist and current CEO of Inuka Kenya and Kwame Owino, CEO of the Institute of Economic Affairs – Kenya.
After Kenya’s 2007 elections resulted in widespread violence that led to the displacement of thousands and over 1000 killed across the country, the international community had been waiting to see how the country would handle its recent polls. With many of the same social and economic conditions in place as the previous elections, analysts anticipated another round of violence. Adding to the uncertainty were the pending International Criminal Court (ICC) charges before Uhuru Kenyatta, who had been the frontrunner throughout the polls and emerged the winner.
THE ICC ELECTIONS
In 2005, Kenya ratified the Rome Statute giving the International Criminal Court jurisdiction over crimes against humanity, war crimes, and genocide. However, this jurisdiction is only applicable in instances where the government is unable or unwilling to investigate or prosecute those crimes. Following the 2007/08 post-election violence, the Government of Kenya took the first step in its investigation of the crimes committed through the establishment of the Commission of Inquiry on Post Election Violence (CIPEV), also known as the Waki Commission for the judge chairing the commission.
The Commission’s report recommended the establishment of a tribunal composed of international and national judges to investigate and prosecute those responsible for the post-election violence. In addition to this recommendation, the Commission issued a statement that if the tribunal was not established within a certain amount of time, they would forward their findings to the ICC for further action. And, in 2009 after the Kenyan Parliament voted against the tribunal, the Waki Commission submitted their findings—including a list of six names—to the ICC.
Among the names were those of the now president Uhuru Kenyatta and his running mate William Ruto. The summonses against both men were released in 2011 and the charges were confirmed in January 2012, well before the elections. Despite the charges, Kenyatta continued his campaign while stating that he would respect the ICC process, raising the question of how Kenyatta, if elected, would manage his obligations to both his country and the international community. The panelists were in agreement that Kenyatta’s victory would be a very complicated matter for both Kenya and the ICC.
Further complicating Kenya’s external affairs is the reaction from members of the international community. On one hand, there were the controversial remarks made by Johnnie Carson, the US Assistant Secretary for African Affairs, warning the Kenyan people that their choices would have undefined “consequences”. Meanwhile, China displayed less concern over Kenyatta’s trouble with the ICC and was, in fact, one of the first countries to reach out and congratulate him on his victory—a stance that has been interpreted as an effort by China to further develop its relationship with the influential East African state. Given the juxtaposition between the attitudes of these major powers and in light of Kenyatta’s first round victory, the question became: how would the United States respond?
Despite the fact that the United States is not a signatory to the Rome Statute, one panelist felt that if the US decided to “roll over” and continue to work with “another corrupt leader” the ICC would be dealt a serious blow. Another panelist noted that the international community’s support of the court would have a profound impact on its standing and legitimacy. Ultimately, the question was posed: is Kenya the place where the ICC dies?
As far as the ICC’s influence in Kenya, support for the international court created divisions within the country: those in support were branded imperialists, whereas those opposing the court’s actions were deemed nationalists. This division was just one of the holdovers from the 2007 elections, following which those who felt justice had not been delivered by the courts turned to violence in the streets. Still, the implications of upholding the charges against Kenyatta and his deputy president, William Ruto, extend beyond Kenya’s internal politics.
A QUESTION FOR THE COURTS
The panel then went on to discuss the implications of potential Supreme Court decisions including the impact on domestic institutions as well as international institutions such as the ICC. In particular, the question was raised on what would happen if the international community ruled the elections were free and fair and the domestic courts didn’t. Would the difference in opinion undermine the international community’s legitimacy as a “body” and does it require redefining “free and fair”?
Meanwhile, if the Court decided in favor of a second round, what would that mean for the country? A primary concern raised by the panel was the country’s ability to hold another round of elections within the mandated 60-days in the event that the Supreme Court overturned the Independent Electoral and Boundaries Commission’s declaration of a Kenyatta victory. All of the panelists agreed that the country lacked the financial and technical capacity to hold another round of elections. Support for the follow-up would have to come from the international community, but the panelists stopped short of identifying specific sources of support.
The panelists also raised the issue of political will. Noting that there is a small group of influential elites in Nairobi that hold the power, the panelists suggested that it would be this group that determined whether or not the election was “clean”. As one panelist explained, the will of this group could have a profound influence on the Supreme Court’s decision on whether or not to uphold Kenyatta’s election. Or, alternatively, this group could create a roadblock or once again manipulate the results of a second round.
FRUSTRATION AND ISOLATION
The continued feeling that an elite cadre still controlled political outcomes despite post-2007 efforts to deepen democracy has created a sense of exclusion among many Kenyans, which the panelists felt could serve as the fuel to any unrest that could develop. All of the panelists agreed that there was an uptick in feelings of frustration and political isolation, particularly among those who were still waiting for what they believe to be a just resolution of the 2007/08 events.
The feeling, shared by many Kenyans, of isolation and of being cheated “one too many times” by politicians and political elites was another concern voiced by the panel. They argued that the mismanagement of the election combined with people’s sense that political leaders and institutions failed to represent their best interest has led to anger and resentment among many. According to one participant, the failures of the political system has created a widespread feeling that people’s votes did not matter, and by extension that the people don’t matter to the politicians.
The participants in Nairobi agreed that if the feelings of isolation or lack of justice are not resolved in court, then there is a very high likelihood that Kenya will experience more violence. As one participant noted, the mounting pressure and tension is creating an atmosphere similar to 2007 despite the outward appearance of calm.
AN UNEASY SILENCE
Because of the lack of violence during the polls, the panelists suggested there is a false sense of security being presented by the media. They argued that after receiving heavy criticism for their role in the 2007/08 violence, members of the media are now overcompensating by self-censoring instances of violence and discrimination occurring around the country. In particular, one panelist described instances of passengers being asked for their identification cards on public transportation before being removed for not coming from the “right” ethnic group.
As troubling as instances of discrimination such as this and the occurrences of violence have been, the panelists also found the silence to be of great concern. There has been what was described as an “ominous, sullen, depressed, and angry silence” across the country. Based on information from local communities and tracing the spread of violence in 2007/08, one participant suggested that the probability of violence would depend heavily on the messages and examples set by local leaders.
And, if violence does in fact erupt it was suggested that the economy might become a point of leverage for the unhappy majority. To this end, the panel suggested that the majority’s primary goal is justice and they would be willing to bring the country’s economy to a standstill to achieve this goal. As one panelist noted, those who are truly angry about the elections don’t care about the economy. Fortunately, this scenario was ultimately unlikely according to the participants.
FOLLOW UP: MOVING FORWARD UNDER KENYATTA
As the Supreme Court recently upheld Kenyatta’s victory, issues of holding a second round and institutional capacity are no longer a concern. However, the ICC has yet to drop the charges against Kenyatta and, in fact, victims’ groups have come out to push for an earlier hearing than the already scheduled July 9 trial. As the date approaches, we will have to wait to see how Kenyatta ultimately upholds his promise to comply with the international court while leading the country
Amanda Dugan is a Project Manager at Fireside Research.
[Photo courtesy of Christopher Shay]