CSVR | CENTRE FOR THE STUDY OF VIOLENCE AND RECONCILIATION
Background

Following Kenya’s independence from Britain in 1963, the country was governed as a one-party state under the regimes of President Jomo Kenyatta and his successor President Daniel arap Moi. In the early 1990s, President Moi relented to demands to return to a multiparty system. He remained in power following two close elections in 1992 and 1997, both of which were marked by politically motivated ethnic violence and electoral irregularities. In 2002, the government of Mwai Kibaki came to power promising to correct Kenya’s history of political corruption. However, widespread violence and allegations of fraud followed Kibaki’s contested re-election in December 2007.

For the past decade, the Kenyan government has implemented various transitional justice mechanisms to account for the nation’s history of political oppression as well as more recent outbreaks of political violence through the establishment of task forces, truth commissions, and attempts at institutional reform. To date, however, little progress has come from these various attempts. At the time of writing, Kenyan President Uhuru Kenyatta and Deputy President William Ruto were facing charges at the International Criminal Court (ICC) for alleged crimes against humanity committed in the aftermath of the December 2007 elections.

Transitional Justice Mechanisms
Akiwumi Commission

On 1 July 1998, President Moi established a judicial commission to investigate the tribal clashes that had plagued the nation’s elections since 1991. The commission was instructed to determine the origins and underlying causes of the violence, to evaluate the adequacy of the police response, and to recommend further investigations, prosecutions, or other measures to prevent future violence. The commission submitted its report on 19 August 1999, but the report was suppressed until 2002, just prior to the election of Kibaki. The Akiwumi Report, named after the chairman of the commission, documented the “warlike activities” between tribes, the apparent orchestration of the violence by political and police officials, as well as the subsequent insufficient or deliberately inadequate police response. The report recommended investigation and prosecution for 189 named individuals, including prominent politicians such as Kibaki and other parliamentary leaders. The report was ignored by the government, however, and no prosecutions were initiated.

Task Force on the Establishment of a Truth, Justice and Reconciliation Commission

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 for Kenya. Its report, released on 26 August 2003, recommended that a truth commission be established by a presidential order and outlined the powers and authority the Task Force believed such a commission should be granted. The report specifically cited the need for a truth commission to confront the abuses that occurred during the Kenyatta and Moi regimes, which 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.” Despite the Task Force’s recommendations, no such commission was formed.

Commission of Inquiry into Post-Election Violence

In response to the shocking violence that followed the December 2007 elections, which left approximately 1,300 people dead and 650,000 displaced, the African Union and the Panel of Eminent African Personalities intervened to facilitate an agreement between President Kibaki and his political rival Raila Odinga. The result was the National Accord and Reconciliation Act, enacted on 18 March 2008, which laid the foundation for a new coalition government and included separate agreements to establish a Commission of Inquiry into the Post-Election Violence (CIPEV) and a Truth, Justice and Reconciliation Commission (TJRC).

CIPEV was created on 22 May 2008. Headed by Justice Philip Waki, the purpose of CIPEV was 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 prevent similar violence in the future, hold those responsible for criminal acts accountable, eradicate impunity, promote national reconciliation, and improve the functioning of security agencies. 

The commission’s 15 October 2008 report detailed Kenya’s long history of political violence, which had its roots in the institutions and political traditions of the nation’s colonial past. The report emphasized the government’s failure to redress the underlying causes of violence, such as the centralization 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 were rarely held accountable. The commission concluded that 1,133 died and approximately 350,000 were displaced as a result of a pattern of violence that “showed planning and organization by politicians, businessmen and others who enlisted criminal gangs to execute the violence.” Kenyan security forces were specifically identified as the perpetrators in a significant number of sexual crimes, in addition to crimes of theft and bribery. While the Waki Commission hearings were able to uncover significant evidence concerning the post-election violence of 2007, its findings were limited by its short operational period, limited resources to operate or conduct hearings, and the fact that important parties chose not to cooperate. Critics argued that the findings were the result of a cursory and severely limited investigation.

The report recommended that a Special Tribunal composed of Kenyan and international judges be established to investigate and prosecute those most responsible for the post-election violence, specifically those responsible for crimes against humanity. As an added measure, the commission drafted a list of individuals thought to bear the greatest responsibility, which was to be forwarded to the ICC in the event that the coalition government failed to create the Special Tribunal by March 2009. The Kenyan parliament was unable to enact the requisite legislation, and the list was given to the ICC prosecutor in July 2009.

Truth, Justice and Reconciliation Commission

The Kenyan parliament passed the Truth, Justice and Reconciliation Act on 23 October 2008, thereby satisfying the agreement reached in the National Accord. In contrast to the limited scope of the Waki Commission, the TJRC was given a broad mandate to investigate abuses of human rights committed by the state or other public institutions between December 1963 and February 2008.

The TJRC experienced criticism almost immediately. First, it was argued that the government failed to consult interested parties during the drafting of the legislation. Second, the controversial choice to appoint Bethuel Kiplagat, an individual associated with the abusive Moi regime, as chair of the TJRC raised concerns about its legitimacy. As a result, several groups boycotted the initial meetings and some of the appointed commissioners resigned. Third, the authority of the commission was undermined because the government maintained the discretion to recommend amnesty for gross violations of human rights. Finally, the government indicated that it would seek to utilize the TJRC as a vehicle to punish the individuals responsible for the post-election violence rather than establish the Special Tribunal recommended by the Waki Commission. Aside from these criticisms, the TJRC faced significant practical challenges to completing its mission. The commission was unable to secure consistent funding from the government, and the enormous scope of the TJRC’s mandate necessitated that the commission make multiple requests to extend its operational period. While the legislation provided for a two-year operational period, it was not until 3 May 2013 that the commission submitted its final report.

In the end, the TJRC was able to conduct an extensive investigation, which allowed over 40,000 Kenyans to share their experiences. Although hampered by criticism and operational deficiencies, the TJRC’s final report is a comprehensive catalogue of Kenya’s history of human rights abuses, which documents a nearly uninterrupted history of human rights abuses dating back to Kenya’s colonial history. The commission found the British colonial administration (1895-1963) responsible for gross violations of human rights, including massacres, torture, and various forms of sexual violence. The regime of President Kenyatta (1963-1978) was found to have committed human rights violations that included torture, political assassinations, arbitrary detentions, and unjust land acquisitions. His successor, President Moi (1978-2002), 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. The Kenyan state security agencies were identified as the main perpetrators of the violations, which include massacres, enforced disappearances, torture, and sexual violence.

In its final report, the TJRC’s primary recommendations include the issuance of public apologies on behalf of the president, Kenyan security forces, the judiciary, and the government of Britain; an inquiry into receiving compensation from the British government for past abuses; the creation of a National Human Rights Day; and reforms to the judiciary to enable prosecutions of the individuals responsible for violations of human rights.

Constitutional Reform

On 4 August 2010, a new constitution was enacted via a referendum with the support of 67 percent of voters. Reforms embodied in the new constitution included changes to the electoral system, decentralization of executive power through the formation of an upper-level legislative body and newly created county governmental bodies, the establishment of a land commission, and several key reforms to increase the independence of the judiciary. The reform measures focused on the underlying institutional deficiencies that contributed to cycles of violence, and thus the government declined to include any mechanisms to account for past human rights violations.

International Criminal Court Prosecutions

In March 2010, the ICC Pre-Trial Chamber granted authority to the ICC prosecutor to commence investigations into alleged crimes against humanity committed by the individuals named by the Waki Commission in in the aftermath of the December 2007 elections. On 15 December 2010, the ICC prosecutor named six suspects, including Uhuru Kenyatta and William Ruto, both of who were elected as president and deputy president of Kenya, respectively, in March 2013. They were charged (in two separate cases) with committing crimes against humanity, including murder, deportation or forcible transfer of persons, and persecution.

Although Kenya ostensibly agreed to support the ICC process, the government obstructed the ICC prosecutions in various ways. The Kenyan parliament twice voted to withdraw from the Rome Statute, in December 2010 and again in September 2013. The ICC committed to prosecuting the cases regardless, however, as withdrawal requires a number of procedural formalities and does not affect pending ICC cases. In April 2012, Kenyan officials supported a recommendation that the East African Court of Justice assume greater authority to try cases of crimes against humanity, apparently seeking to undermine the ICC jurisdiction and create a more favorable venue in which to try these cases. In March 2011, Kenya filed an admissibility challenge to both cases, arguing that the cases were inadmissible because the government was currently in the process of investigating the post-election violence. The ICC denied this request in May 2011 because there was no evidence that Kenya was actually investigating the named suspects. Kenyan authorities also failed to assist the ICC’s effort to collect evidence or access governmental records.

The ICC prosecutor reported “unprecedented” levels of interference with witnesses for the trials, noting that he faced severe challenges with the investigations stemming from the intimidation of crucial witnesses. Additionally, reports of threats and harassment of human rights advocates associated with the case were ignored by the government. The African Union called for the suspension of the ICC prosecutions, however, contending that the unprecedented decision to prosecute sitting heads of state could undermine the stability of Kenya and impede reconciliation and reconstruction efforts.

By 2016, the ICC had either dropped or dismissed charges against all six suspects, citing lack of evidence, witness interference and political meddling.

Justice

Impunity for past abuses remains a significant impediment to transitional justice in Kenya. International groups have been able to identify only a handful of instances in which charges or sanctions were levied against politicians. Many of the individuals identified as perpetrators of violence in various reports continue to serve in prominent government positions. Generally, efforts to investigate or prosecute individuals for past abuses are pursued half-heartedly or are abandoned due to insufficient resources or a lack of political will.

Reforms for the police and security forces also remain problematic, as there remains insufficient oversight over the security forces and abuses committed by security forces are rarely prosecuted. The constitutional reforms included measures to increase police accountability, however, there were significant impediments to implementing these reforms, including efforts by the government to disregard key components of the reform measures, corruption within the security forces, difficulty implementing the structural aspects of the reforms, and a lack of resources.

Reparations

The TJRC report concluded that the Kenyan government is responsible for reparations for the violations because the violations were either “perpetrated by State agents or the State failed to protect its citizens.” The report included a comprehensive list concerning forms and priority of reparations, outlined appropriate eligibility requirements for receipt of reparations, and recommended that a set of regulations for the implementation of reparations be passed by the National Assembly.

Similarly, the 2010 constitution authorized reparations for land grievances stemming from colonial-era policies, which have been a crucial component to the decades of ethnically-motivated political violence. Article 67 of the Kenya’s new constitution established a national land commission that is authorized to recommend “appropriate redress,” while Article 40 provides that the government must pay just compensation to lawful owners of property it has acquire compulsorily. 

Gender

Sexual violence was a common occurrence during outbreaks of political violence. The Waki Commission was the first such commission to focus on sexual violence related to the ethnic clashes, and its report emphasized the difficulties in investigating incidents of sexual violence where the victims are frequently unwilling to come forward publicly for fear of humiliation or retaliation. Consequently, the commission was only able to obtain testimony from a small number of women, despite the fact that men and children were also known to have been victimized.

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 adopted the Sexual Offenses Act, a comprehensive sexual assault statute that modernizes Kenya’s rape laws by adopting a gender neutral definition of rape and covers a more expansive range of sexual crimes.

International Actors

The African Union, a significant actor in the immediate post-election crisis, was crucial to achieving the National Accord. However, it also sided with Kenya’s efforts to defer the ICC prosecutions.

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 recognizes 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. The EAC deputy secretary general in charge of political federation, citing the period of violence following Kenya’s 2007 elections, emphasized the need to establish preventative conflict management and resolution mechanisms in order to avoid destabilizing intrastate conflicts.

Sources

“Extraordinary Session of the Assembly of the African Union, Decisions and Declarations” (12 October 2013), http://summits.au.int/en/icc/events/decisions-and-declarations-extraordinary-session-assembly-african-union-12-october-2013-a.

Amnesty International, Concerns about the Truth, Justice and Reconciliation Bill (2008).

Amnesty International, Police Reform in Kenya: A Drop in the Ocean (2013).

Human Rights Watch, “African Union: Don’t Let Them In,” 13 May 2013, https://www.hrw.org/news/2013/05/13/african-union-don-t-let-them.

Human Rights Watch, “Kenya,” in World Report: 2013 (New York: Seven Stories Press, 2013).

Human Rights Watch, “Kenya: Deputy President’s Trial at the ICC,” 9 September 2013, https://www.hrw.org/news/2013/09/09/kenya-deputy-president-s-trial-icc.

Human Rights Watch, “Kenya: Q&A on Recent Developments on the International Criminal Court,” 9 April 2013, http://www.hrw.org/news/2013/04/08/kenya-qa-recent-developments-international-criminal-court.

Human Rights Watch, “Questions & Answers: The ICC Trial of Kenya’s Deputy President,” 1 September 2013, https://www.hrw.org/news/2013/09/09/kenya-deputy-president-s-trial-icc.

Human Rights Watch, Turning Pebbles: Evading Accountability for Post-Election Violence in Kenya (2011).

International Center for Transitional Justice, Institutional Reform in the New Constitution of Kenya (2010).

International Center for Transitional Justice, Kenya: Impact of the Rome Statute and the International Criminal Court (2010).

Nordstöm, Peter, Gender and Reconciliation in the New Kenya: Equality at Heart (Cape Town: Institute for Justice and Reconciliation, 2013).

Report of the Commission of Inquiry into the Post-Election Violence (16 October 2008), http://reliefweb.int/sites/reliefweb.int/files/resources/15A00F569813F4D549257607001F459D-Full_Report.pdf.

Report of the Judicial Commission Appointed to Inquire into the Tribal Clashes in Kenya (24 October 2002), http://www.hrw.org/sites/default/files/related_material/Akiwumi%20Report.pdf.

Report of the Task Force on the Establishment of a Truth, Justice and Reconciliation Commission (26 August 2003), http://www.justiceinperspective.org.za/images/kenya/Kenya-Report%20of%20the%20Task%20Force%20on%20the%20TJRC%2003.pdf.

Report of the Truth, Justice and Reconciliation Commission (3 May 2013), http://www.tjrckenya.org/images/documents/TJRC_report_Volume_1.pdf.

Stan, Lavina, and Nadya Nedelsky, “Kenya,” in Encyclopedia of Transitional Justice, vol. 2 (New York: Cambridge University Press, 2013).

Stan, Lavinia, and Nadya Nedelsky, “Waki Commission,” in Encyclopedia of Transitional Justice, vol. 3 (New York: Cambridge University Press, 2013).