Background
After Kenya’s independence from Britain in 1963, Jomo Kenyatta became the first prime minister and later president of the country from 1963 until his death in 1978. Kenyatta’s administration was dominated by Kikuyus, his own ethnic group, who also dominated the military and public administration.[1]
The gruesome assassination in 1969 of Tom Mboya, a political leader who belonged to the Lou ethnic group, led to ethnic tensions and a wave of demonstrations across the country. Kenyatta reacted to this by clamping down on the opposition’s activities and proscribing all political parties apart from his own Kenya African National Union. All leaders of the Luo-led Kenya People’s Union were arrested and incarcerated. These developments heralded the beginning of one-party rule and a deeply ethnicised political trajectory that would eventually give rise to one of the most violent post-election crises on the continent.
Following Kenyatta’s death in 1978, his successor Daniel arap Moi, who was vice president in Kenyatta’s administration, continued governing the country as a one-party state despite persistent calls for reforms from the people. Moi’s 24-year reign was characterised by widespread allegations of corruption and serious human rights violations that caught global attention.[2]
Pressure from local actors and the international community, especially donors that conditioned their support on a return to a multi-party system, eventually compelled Moi to legalise some opposition parties in December 1991. He remained in power until 2002, however, following two close elections in 1992 and 1997, both of which were marked by politically motivated ethnic violence and electoral irregularities. In 2002, Mwai Kibaki came to power, promising to correct Kenya’s history of political corruption.
Despite its seemingly smooth transitions from one administration to another, the political and electoral processes of Kenya have been characterised by fraud and violence and continue to reflect the ethnic divisions in the country. This was the situation leading up to the December 2007 presidential election, with Kibaki of the newly formed Party of National Unity facing his main political rival Raila Odinga of the Orange Democratic Movement on the ballot. In an election judged by the Kenyan Electoral Commission and international observers to be manifestly flawed, Kibaki was announced the winner, which sparked violent protests across country.[3]
Like the electoral process, the protests quickly assumed ethnic dimensions and resulted in killings of mainly Kikuyu citizens. In a particularly grave example, over 50 women and children of Kikuyu ethnic origin were locked in a church where they had sought refuge and set ablaze.[4] The conflict also resulted in the looting and burning of businesses, destruction of property and displacement of communities. By the time the situation was brought under control in February 2008, an estimated 1,300 were killed and more than 650,000 displaced. Sporadic violence in remote places like the Rift Valley, politically motivated killings of political actors, and other forms of violence continued several months after the crisis was officially brought to an end.
An important dimension of the crisis was the impact of poorly addressed grievances and historical injustices against ethnic minorities. Although the immediate cause of the conflict was the contested outcome of the 2007 election, historical deprivation of ancestral lands from minority indigenous communities, socioeconomic exclusion, poverty and other forms of marginalisation either exposed certain communities to disproportionate harm or served to increase the anger that fuelled the violence.[5]
Apart from constituting a government of national unity to pacify all the parties to the conflict, the Kenyan government implemented several transitional justice mechanisms to address both the remote and immediate causes of the violence and other injustices that were carried out in the country.
Akiwumi Commission of Inquiry
The Akiwumi Commission of Inquiry (also known as the Commission on Ethnic Clashes) was one of the earliest attempts by Kenya to address its political and ethnic violence. Established as a judicial commission of inquiry to investigate the clashes that occurred in places like the Rift Valley, Molo and Coast Province between 1991 and 1998, the commission was headed by retired Justice Akilano Molade Akiwumi of the Appeal Court of Kenya and two other serving judges of the Kenyan judiciary.[6]
The Akiwumi Commission had the mandate to determine the origins and underlying causes of the conflict, evaluate the adequacy of police responses, and recommend further investigations, prosecutions or other measures to prevent future violence. The commission faced several challenges, including undue government interference, lack of trust from citizens who considered Moi a perpetrator, and the refusal of key actors to appear and testify before it. Despite these challenges, the commission conducted hearings for 194 days in several parts of the country. It submitted its report in August 1999, but the report was suppressed until 2002, just prior to the election of Kibaki – a move that was considered politically calculated to undermine Kibaki’s campaign.
The report documents cases of human rights violations along ethnic lines, “warlike activities” between tribes, the apparent orchestration of the violence by political actors and police, and deliberate inaction by police to address the violence. The report recommends additional investigations and prosecution for 189 named individuals, including prominent politicians such as Kibaki and parliamentary leaders.[7] The report was ignored by the Kibaki and subsequent administrations and no prosecutions were initiated.
Task Force on the Establishment of a Truth, Justice and Reconciliation Commission
Like the administration before it, the Kibaki administration set out to address legacies of Kenya’s violent past. In April 2003, the Kenyan minister of justice and constitutional affairs appointed the Task Force on the Establishment of a Truth, Justice and Reconciliation Commission to determine whether a truth commission was necessary to address the country’s experiences with political and ethnic violence. The task force was headed by Kenyan-born international human rights scholar Makau Mutua and 17 other men and women drawn from several interest groups. It had the mandate to examine the nature of human rights violations committed from independence until the date of its establishment and advise on the propriety and nature of a truth commission for Kenya.[8]
Although not a transitional justice mechanism in itself, the task force prepared the ground for the comprehensive transitional justice process that would follow. It conducted extensive consultations, research, interviews and public hearings, and received oral and written submissions on past human rights violations. In August 2003, the task force released its report, recommending the establishment of a truth commission to address the abuses that occurred after independence, specifically under the Kenyatta and Moi regimes, which, according to the report, included “political assassinations, torture and detention without trial, police brutality, massacres of communities, sexual abuse and violence against women and girls, politically instigated ethnic clashes, and a host of economic crimes such as the looting of the public purse and land grabbing.”[9] Despite the task force’s recommendations, no such commission was formed.
Commission of Inquiry into the 2007 Post-Election Violence
Following the shocking violence of the 2007 elections, the African Union through its Panel of Eminent African Personalities intervened to facilitate an agreement between Kibaki and Odinga. The result was the National Accord and Reconciliation Act, enacted in March 2008, which laid the foundation for a new coalition government, and included separate agreements to establish the Commission of Inquiry into the Post-Election Violence (CIPEV) and the Truth, Justice and Reconciliation Commission (TJRC).
CIPEV was established by an act of parliament in May 2008 and headed by Justice Philip Waki, with the mandate to investigate the facts and circumstances relating to the violence that followed the 2007 presidential elections, as well as the actions or omissions of state security agencies during the course of the violence. The commission was to recommend measures to guarantee non-recurrence, hold those responsible for criminal acts accountable, eradicate impunity, promote national reconciliation, and improve the functioning of security agencies through institutional reforms.[10]
In October of the same year, CIVEP released its report detailing Kenya’s long history of political violence, which has its roots in the institutions and political traditions of the nation’s colonial past. The report highlights the government’s failure to redress the underlying causes of violence, such as the centralisation of presidential power at the expense of other public institutions, as well as the use of gangs for political purposes and a culture of impunity where perpetrators are rarely held accountable.
Instructively, the commission concluded that 1,133 people were killed in the violence, and approximately 350,000 displaced in a systemic violence that “showed planning and organization by politicians, businessmen and others who enlisted criminal gangs to execute the violence.”[11] Kenyan security forces were specifically identified as the perpetrators in a significant number of sexual violence against women and girls, in addition to crimes of theft and bribery. While the commission’s hearings were able to uncover significant evidence concerning the post-election violence, its findings were limited by its short operational period, inadequate resources to operate and conduct hearings, and the lack of cooperation from relevant actors. Critics argue that the findings were the result of a cursory and severely limited investigation.
The report recommends that a special tribunal composed of Kenyan and international judges be established to investigate and prosecute those responsible for the post-election violence, and specifically those who committed crimes against humanity. As an added measure, it indicts certain individuals considered to bear the greatest responsibility for the violence. The report recommends their prosecution by the International Criminal Court (ICC) in the event that the coalition government fails to establish the special tribunal by the end of March 2009. The Kenyan parliament was unable to enact the requisite legislation to operationalise the tribunal, and so the indicted individuals was referred to the ICC for prosecution in July 2009.
Truth, Justice and Reconciliation Commission
Despite its failure with the special tribunal, the Kenyan parliament enacted the Truth, Justice and Reconciliation (TJRC) Act in October 2008, which established the commission in fulfilment of part of the African Union-brokered National Accord. In contrast to the limited scope of the CIPEV, the TJRC was given a broad mandate to investigate the human rights violations committed in the country between December 1963 and February 2008, when the post-election violence was brought to an end.
The TJRC faced criticism almost immediately after its establishment. First, it was argued that the government failed to consult interested parties during the drafting of its enabling legislation. Second, the controversial appointment of Bethuel Kiplagat, an individual associated with the abusive Moi regime, as chair of the TJRC raised serious concerns about its legitimacy. As a result, several groups boycotted the initial meetings and some of the appointed commissioners resigned. Third, the independence of the commission was questioned because the government reserved the discretion to recommend amnesty for gross violations of human rights. Finally, the government indicated that it would seek to utilise the TJRC as a vehicle to punish individuals responsible for the post-election violence rather than establish the special tribunal as recommended by CIPEV.
Aside from these criticisms, the TJRC faced significant practical challenges with the realisation of its mandate. The commission was unable to secure consistent funding from the government, and the enormous scope of its mandate required it to make multiple requests to extend its operational period. While the enabling law provided for a two-year mandate, it was not until May 2013 that the commission submitted its final report.
Despite these challenges, the TJRC was able to conduct extensive hearings that allowed over 40,000 Kenyans to share their experiences. Its final report is also a comprehensive catalogue of Kenya’s human rights violations, documenting a nearly uninterrupted history of abuses dating back to the country’s colonial period. The commission found the British colonial administration (1895-1963) responsible for gross human rights violations, including massacres, torture and various forms of sexual violence.
The regime of Kenyatta was found to have committed human rights violations that included torture, political assassinations, arbitrary detentions and unjust land acquisitions. Moi was similarly found to have committed abuses, including massacres, unlawful detentions, torture and political assassinations. Between 2002 and 2008, the Kibaki administration was found to have been responsible for unlawful detentions, torture, assassinations and extrajudicial killings. Kenyan state security agencies were identified as the main perpetrators of the violations, which included massacres, enforced disappearances, torture and sexual violence.
The TJRC’s primary recommendations included: public apologies by the president on behalf of the government, Kenyan security forces, the judiciary, and the government of Britain; an inquiry into the prospects of receiving compensation from the British government for abuses committed during colonial rule; the commemoration of a National Human Rights Day in memory of the victims/survivors; and judicial reforms to enable the prosecution of the individuals responsible for the violations.
Constitutional Reforms
Part of the underlying factors identified by the TJRC to have contributed to the cycle of violence in the country was the over-concentration of powers in the presidency, to the detriment of other state institutions.[12] Therefore, in April 2010, the government conducted a referendum to determine the propriety of a new constitution for the country. Following a 67 percent vote in favour of constitutional change, a new constitution was adopted by the parliament in August 2010.
Some of the innovations in the new constitution included changes to the electoral system, decentralisation of executive power through the formation of an upper-level legislative body and newly created county governmental bodies, the establishment of the Land Commission, and several key reforms to enhance the independence of the judiciary. The government, however, declined to include any mechanisms of accountability for past human rights violations in these reforms.
International Criminal Court Prosecutions
Following the naming of certain accused in the CIPEV report and their referral to the ICC upon the failure of the government to prosecute them as recommended, the Pre-Trial Chamber of the ICC in March 2010 granted authority to the prosecutor to commence investigations into alleged crimes against humanity committed by those individuals. In December 2010, the ICC indicted six suspects, including Uhuru Kenyatta and William Ruto, who would in 2013 be elected president and deputy president of Kenya, respectively. They were charged (in two separate cases) with committing crimes against humanity, including murder, deportation or forcible transfer of persons, and persecution.
Although Kenya earlier agreed to support the ICC process, the government obstructed its attempt to prosecute the indicted persons in various ways. In the diplomatic row that followed their indictment, the Kenyan parliament twice voted to withdraw from the Rome Statute in December 2010 and in September 2013. The ICC, however, was committed to prosecuting the cases, as withdrawal does not take immediate effect, nor does it affect pending cases before the court.
In April 2012, the Kenyan government supported a recommendation that the East African Court of Justice be allowed to try the cases of crimes against humanity, apparently as part of increasing opposition to the ICC by African leaders. In March 2011, the Kenyan government challenged the admissibility of both cases before the court, on the argument that the subject matter was now pending investigation before the national courts in Kenya. The ICC rejected this argument on the basis that there was no evidence to support the fact that the named defendants were indeed under any investigation or prosecution before national courts. Kenyan authorities failed to assist the ICC’s effort to collect evidence or access government records to help prosecute the cases.
The ICC prosecutor reported “unprecedented” levels of interference with witnesses for the trials, noting that he faced severe challenges with the investigations stemming from intimidation of crucial witnesses.[13] Additionally, reports of threats and harassment of human rights advocates associated with the case were ignored by the government.
The African Union also called for the suspension of the ICC prosecutions, contending that the unprecedented decision to prosecute sitting heads of state could undermine the stability of Kenya and impede reconciliation and reconstruction efforts.
As at 2016, the ICC had either dropped or dismissed charges against all six suspects, citing lack of evidence, witness interference and political meddling. Ruto was elected president in the September 2022 elections, effectively sealing off any possibility of being brought before the court for prosecution.[14]
Justice
Impunity remains a significant impediment to transitional justice in Kenya. Only a handful of charges or sanctions have been brought against perpetrators. Many named in commission reports continue to serve in prominent positions in the government. Generally, efforts to investigate or prosecute perpetrators for past human rights abuses are pursued half-heartedly or abandoned due to insufficient resources or a lack of political will.
Reforms for the police and military are also problematic, as there is insufficient oversight over security forces and abuses committed by them are rarely prosecuted. The constitutional reforms included measures to increase police accountability, yet there has been no significant implementation. The absence of political will, corruption within the country’s security architecture, and the lack of adequate funds have been identified as obstacles to ensuring justice for human rights violations.
Reparations
The TJRC report concludes that the Kenyan government is responsible for reparations because the violations were either “perpetrated by State agents or the State failed to protect its citizens.” The report includes a comprehensive list of the forms and priorities of reparations, outlines appropriate eligibility requirements for receipt of financial reparations, and recommends that a set of regulations for the implementation of reparations be passed by the National Assembly.
Similarly, the 2010 constitution authorised reparations for land grievances stemming from colonial-era policies, which have been a crucial component of the decades of ethnically motivated political violence. Article 67 of Kenya’s new constitution established a national Land Commission that is authorised to recommend “appropriate redress,” while Article 40 provides that the government must pay just compensation to lawful owners of property it has acquired compulsorily.
In December 2020, following an action brought before the High Court of Kenya on behalf of a group of survivors of sexual violence (six women and two men) against the Kenyan government, the courts acknowledged for the first time that sexual violence was committed during the 2007 post-election crisis. The court awarded the sum of $35,000 to four women out of the eight victims as reparations. According to the court, the reparations were for government’s failure to prevent the sexual violence and failing to investigate and prosecute the perpetrators.[15] Until now, the government is yet to pay these reparations, while the victims are partially appealing the judgment, challenging the court’s refusal to recognise the remaining four as victims/survivors of sexual violence.
There have been several attempts by the government to give reparations in other ways, including through resettlement of internally displaced persons (IDPs), cash handouts and grants to affected communities. For example, in 2015, the president launched a restorative fund with more than $80 million to assist victims/survivors of the post-election violence. But the administration of the fund was marred by corruption allegations, mismanagement and alleged rigged profiling of victims. In another example, returning IDPs were given cash to reconstruct their homes and start businesses. Yet, these efforts were either inadequate, improperly planned or executed, or marred by corruption. Although Ruto campaigned on the promise to address the issue of justice and reparation for victims/survivors of human rights violations, Kenya remains a country in a long search for justice and accountability for human rights violations.
Gender
Like in most conflict situations in Africa, women in Kenya have suffered disproportionate harm throughout the various conflicts that took place in the country. This is exacerbated by vulnerabilities traceable to lack of education, lack of access to land, and patriarchal traditional and religious practices. For example, most of the 50 victims who were burnt to death in the church during the post-election violence were women.
According to a report by Human Rights Watch, more than 163 women who were contacted admitted to being gang-raped during the post-election violence, sometimes by as many as 10 men.[16] The TJRC acknowledges in its report that conflict-related sexual violence took place, particularly against women, and highlights the difficulties with investigating cases since victims are unwilling to come forward for fear of humiliation or stigmatisation.
Victims interviewed by the TJRC identified a number of reasons for not reporting their attackers: they feared being shunned by family or society; their community discouraged reporting sexual violence; their family advised against informing on fathers or spouses; taboos against discussing sexual matters, including sexual violations; harassment of victims by the police; lack of faith that the incident would be investigated or prosecuted; and fear of reporting violations that were perpetrated by the police.
In 2006, Kenya enacted the Sexual Offenses Act, a comprehensive sexual assault statute that modernised Kenya’s rape laws by adopting a gender-neutral definition of rape and covering a more expansive range of sexual crimes.
International Actors
The African Union was a significant actor in the 2007 post-election crisis and the National Accord. Its position against the extradition of Kenyatta and Ruto to the ICC was criticised as being inimical to the quest for justice in the country.
Kenya is a founding member of the East African Community (EAC), which is mandated to foster regional economic development through economic, political and social integration of member states. Article 124 of the EAC Treaty recognises regional peace and security as prerequisites to fostering social and economic development, and the EAC has sought to increase cooperation of member state security forces to better combat interstate crime and emerging regional threats. Citing the post-election violence, the EAC deputy secretary general in charge of political federation emphasised the need to establish preventative conflict management and resolution mechanisms in order to avoid destabilising intrastate conflicts.
[1] Immigration and Refugee Board of Canada, Restoration of Multiparty Government and Kenyans of Somali Origin, 1 March 1992, https://www.refworld.org/docid/3ae6a80a28.html
[2] Korwa G. Adar and Isaac M. Munyae, “Human Rights Abuse in Kenya under Daniel Arap Moi 1978-2001,” African Studies Quarterly 5(1) (2001).
[3] “Kibaki Win Triggers Kenya Riots,” Al Jazeera, December 30, 2007, https://www.aljazeera.com/news/2007/12/30/kibaki-win-triggers-kenya-riots
[4] “Kenya Riots Kill 50 in Church Blaze,” BBC, January 1, 2008, https://abcnews.go.com/International/story?id=4072456&page=1
[5] “Report of the United Nations Office of the High Commissioner for Human Rights Fact-finding Mission to Kenya,” 6-28 February 2008, https://www.ohchr.org/sites/default/files/Documents/Press/OHCHRKenyareport.pdf
[6] Immigration and Refugee Board of Canada, Kenya: Status of Akiwumi Report, 28 July 2000, https://www.refworld.org/docid/3ae6ad65a4.html
[7] See Part II, Chapter 3 of the Kenyan Judicial Commission on Ethnic Clashes, https://digitalcommons.law.seattleu.edu/cgi/viewcontent.cgi?article=1006&context=tjrc-gov
[8] “Kenya: Future Truth Commission Could Face Controversy over Moi,” https://reliefweb.int/report/kenya/kenya-future-truth-commission-could-face-controversy-over-moi
[9] See Chapter 2, Section 5 of the Report of the Task Force on the Establishment of a Truth, Justice and Reconciliation Commission, https://digitalcommons.law.seattleu.edu/cgi/viewcontent.cgi?article=1005&context=tjrc-pre
[10] See Articles 4 and 5 of the Truth, Justice and Reconciliation Act of Kenya, https://reparations.qub.ac.uk/assets/uploads/TJRC-Act.pdf
[11] See Chapter 10 of the Report of the Commission of Inquiry into the 2008 Post-Election Violence in Kenya, http://www.knchr.org/Portals/0/Reports/Waki_Report.pdf
[12] See Volume IIA, Chapter 4 of the Report of the Truth, Justice and Reconciliation Commission, https://s3-eu-west-1.amazonaws.com/s3.sourceafrica.net/documents/25050/Kenya-Tjrc-Report-Volume-2a.pdf
[13] “Statement of the Prosecutor of the International Criminal Court, Fatou Bensouda, on the status of the Government of Kenya’s cooperation with the Prosecution’s investigations in the Kenyatta case,” https://www.icc-cpi.int/news/statement-prosecutor-international-criminal-court-fatou-bensouda-status-government-kenyas-0
[14] “Kenya Election 2022: William Ruto Sworn in as President,” BBC, https://www.bbc.com/news/world-africa-62886989
[15] “Kenyan Court Awards Compensation to Victims of 2007 Election Violence,” Voice of Africa, December 2, 2020, https://www.voanews.com/a/africa_kenyan-court-awards-compensation-victims-2007-election
[16] Human Rights Watch, “I Just Sit and Wait to Die,” 2016, https://www.hrw.org/sites/default/files/report_pdf/kenya0216_brochure_web.pdf