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Kenya: Search for justice after post-election violence
September-October 2009

The following article was written by MOGC intern Alice Burger, who lived in Kenya for the first five months of 2009.

Kenyans have had a challenging 18 months since the post-election violence that rocked the country in January 2008, and the road ahead remains uncertain and pitted with troubles. For the past few months, Kenyan lawmakers have been trying to decide how to bring those responsible for the chaos to justice. According to international observers, there are two possibilities for addressing the issue: They could bring the case to the International Criminal Court (ICC) or set up a special tribunal within the country.

At the end of July, the legislature chose neither option, deciding instead to use the existing judicial system along with a reconciliation council, an arrangement that falls short of a special tribunal because it is not independent of the government. The U.S. and other observers have been supportive of finding the truth within the country, but they are concerned about the chosen route. As Secretary of State Hillary Clinton quipped during her speech in Kenya in early August, using a common Kenyan adage, “If you cannot afford a lawyer, buy a judge.” The courts are obviously not trusted to be objective by either Kenyans or outsiders. This raises a serious danger for the East African country: if citizens believe that the trials are biased, the violence could be reignited even as the ashes of the previous violent events are reexamined.

In addition to the glaring problems of bias, other legal problems remain with trying those charged under usual Kenyan law, according to L. Muthoni Wanyeki, executive director of the Kenya Human Rights Commission, a non-governmental organization. Since Kenya became a member of the ICC, new laws now apply to the country under the Rome Statute which are intended to address egregious human rights abuses and to ensure that people at all levels of power are brought to justice. Unfortunately, the statute was not domesticated, meaning it was not implemented into law within Kenya, until after the post-election violence; if crimes are tried under these laws, there could be claims of retroactivity, potentially making the trials invalid. Yet if the Rome Statute is not applied, only those at the lowest levels – those who were on the street and were themselves harmed by the upheaval – would face the consequences of their actions, not those who started and perpetuated the violence. This is a considerable problem in the Kenyan case, as both President Mwai Kibaki and Prime Minister Raila Odinga are on the list of people who should face charges, as well as a plethora of middle-level people who worked to organize the violence in Nairobi and the Rift Valley.

Another problem with trying these cases under Kenyan courts comes from the investigation that would precede the actual trials. The Criminal Investigation Department would be responsible for gathering evidence, creating a conflict of interest. Police officers have been accused by the Commission of Inquiry into the Post-Election Violence of various crimes, ranging from theft to rape to murder (up to one-third of all the deaths that occurred during the period).

To complicate the matter still further, earlier this year the Kenyan parliament voted to bring the case to the ICC. By referring the case in this way, they have opened up the possibility of an investigation by the international body. The list of those suspected in post-election violence – a list created by the sanctioned Waki Commission on Post-Election Violence – has been given to the Court, moving the process along. Even if domestic trials do take place, the ICC could still start their own judicial process if they believe that justice is not truly being served and if they believe that the courts in Kenya are biased or inadequate.

In the wake of the December 27, 2007, elections, 1,300 people were killed and 300,000 were displaced from their homes (thousands of whom still remain in camps); property was destroyed and chaos and fear reigned in several parts of the country – from Nairobi to the Rift Valley to Kisumu in the west. Those affected by the violence deserve justice, but this may remain elusive if the legislature continues on this path of calling for local trials.

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