peace betrayed: the icc politics of victimhood and the threat of instability in kenya

iPeace Betrayed:The ICC Politics of Victimhood and The Threat of Instability in Kenya

Peace Betrayed:The ICC Politics of Victimhood

and The Threat of Instabilityin Kenya

About The International Policy Group

The International Policy Group (IPG) is a nongovernmental organization dedicated to sustainable Peace and Justice. Its mission is to generate and share knowledge on peace and justice to positively influence policies and politics. IPG is primary concerned with the governance, policy and institutional dynamics that impact on Peace and Justice, especially in poor countries worldwide. Broadly, IPG is motivated by the recognition that the existing global peace and justice policy system has not adhered to the principle of equality of nations. It largely reflects the hegemonic structure of the post-1945 world order and has not adjusted to the reality of fundamental changes in the international system. The rise of new powers and the mounting influence of non-state actors have provided opportunities to promote peace and justice, but also posed new challenges that might endanger these values. Scholarly and policy communities need to be informed of the challenges and opportunities for sustainable peace and justice. The IPG pursues its mandate by: Engaging in research aimed at promoting peace and justice by addressing specific national, regional and global challenges and sharing knowledge through books, articles, reports, and other outlets; Convening influential policymakers and scholars working on issues of peace and justice to debate the merits of the frameworks through which peace and justice are promoted; Hosting roundtable series to inform the policy and scholarly communities of emerging challenges and solutions to peace and justice at national and regional levels; Providing a dynamic Web presence as a resource for researchers and policy communi-ties on the issues related to the future of peace and justice.

©International Policy Group, October 2015

Africa ReportNovember 20, 2015

iiPeace Betrayed:The ICC Politics of Victimhood and The Threat of Instability in Kenya

Executive Summary

The International Criminal Court (ICC) case is a danger to a fledgling peace in Kenya. The Court’s case and actions since 2010 have been perverse, with its inexcusable selection of

victims, events, context and the accused. Through its retributive justice approach, the Court is creating a new set of victims, polarising a susceptible population and setting the stage for a new wave of violence.

The International Policy Group calls for an immediate halt to the case and creation of a transitional justice mechanism that will exhaustively deal with the decades-long issue of victims in Kenya.

The Court’s construction of its cases through a culpable avoidance of Kenya’s history of political violence that spans three decades with victims in the millions is an indictment of its selective approach to victimhood. Since the onset of State-sponsored violence in the 1991-1993 election cycle on the back of a multiparty challenge on KANU and President Moi’s hold on power that was repeated in the 1997-1998 election cycle, the history of violence and the victims it has produced has been convoluted, with different actors, locations and in its basic nature. For a right perspective on victimhood in Kenya, this history cannot be ignored.

The 2007-2008 violence that had ethnic dimensions cannot be the Court’s only claim to victimhood in Kenya, given the diffusion of violence over the decades to ethnic-allied criminal groups. The broad-based violence of 2007-2008 had victims and perpetrators entangled in an ethnic web that was more complicated than the ICC approach seeks to demonstrate even as it selected which victims deserved its retributive brand of justice and which did not

Although over 5,000 people have died, 1,000,000 been displaced and tens of thousands injured, property destroyed, communities torn apart and the whole country ruptured in a tense and volatile atmosphere, the court’s approach to justice betrays this reality through its misuse

iiiPeace Betrayed:The ICC Politics of Victimhood and The Threat of Instability in Kenya

of a fraction of these victims and events. Its case only continues to exacerbate the deep seated suspicions and outstanding grievances that have not been settled since the onset of the cycles of violence in the 1990s, thereby endangering a fledgling peace that should be foremost consolidated through sustainable peace processes.

The case at The Hague denies this reality and undermines an approach that can address these issues that should include truth telling of history,

reparation for victims, accountability and reintegration of perpetrators, restoration and reconstruction of communities and healing of the nation. This is what is required if Kenya is to exhaustively deal with its dark history once and for all.

This report delves into this history of violence and victimhood in Kenya, tracing responses by different actors over time. It documents victims from all cycles of violence, has a comparative look at responses and the ICC response in particular and concludes with an approach that can exhaustively deal with the issue of victimhood in Kenya outside of a retributive justice mechanism.

It is time the ICC realized Kenya’s need to substantively deal with this history and its victims once and for all in the context in which their victimhood occurred. This would include a way that restores communities and heals the nation’s bloodied psyche even as it struggles to consolidate peace. The International Policy Group recommends:

Halt Cases at the ICC to Consolidate Peace: The International Criminal Court should immediately pull out from Kenya and commit its resources to the consolidation of peace in Kenya. This should be done through; restoration and reparation of victims, reconstruction of communities and supporting peace processes in a post-conflict reconstruction context.

Complete Restoration of Victims: The Government of Kenya should embark on a post-conflict restoration and reconstruction

ivPeace Betrayed:The ICC Politics of Victimhood and The Threat of Instability in Kenya

mission that will cover victims from 1991-2008. It should do this through; complete resettlement of all displaced persons, ensure reparation for all victims, reconciliation and reintegration of all warring communities, reconstruction of communities, ensure accountability through a transitional justice structure and commit to immediate trial those who threaten peace.

Investigate the Procurement of Witnesses: the Assembly of

States Parties should under Article 112 (4) of the Rome Statute do a comprehensive and forensic investigation of the whole process involving the Kenyan case. It should in particular investigate claims that the Office of the Prosecutor procured witnesses in the Kenyan case through dubious and questionable circumstances. The whole concoction and framing of the Kenyan case should be investigated from the start of the case to its current attempt to use recanted evidence.

Recognise the ICC is Endangering Peace: The UN Security Council, the European Union and the United States should recognise that the current skewed and selective construction of the Kenya case is a danger to a fledgling peace. The case is creating new fault lines and polarising the population. They should also commit resources to Kenya’s restoration and reconstruction efforts with a view to ending the cycles of violence and victimhood once and for all in a framework that understands and responds to the context in which the violence and victimhood occur.

Secure Peace and Prevent Return to Violence: The African Union should continue in its efforts to halt the Kenyan cases at the ICC and provide a framework for Kenya’s restoration from examples that have taken root and prospered in post conflict restoration like the South African CODESA framework or the Rwandan model for peace and reconstruction.

vPeace Betrayed:The ICC Politics of Victimhood and The Threat of Instability in Kenya

Map of Kenya

viPeace Betrayed:The ICC Politics of Victimhood and The Threat of Instability in Kenya

AcronymsANC African National Congress

ASP Assembly of States Parties

AU African Union

CID Criminal Investigations Department

CIPEV Commission of Inquiry on Post Election Violence

CODESA Convention for a Democratic South Africa

CSO Civil Society Organisation

DPA Department of Political Affairs

EU European Union

ECK Electoral Commission of Kenya

HD Centre Centre for Humanitarian Dialogue

ICC International Criminal Court

IDP Internally Displaced Persons

IREC Independent Review Committee

KANU Kenya African National Union

KHRC Kenya Human Rights Commission

OCPD Officer Commanding Police District

ODM Orange Democratic Movement

OP Office of the President

PEV Post-election Violence

PNU Party of National Unity

SCCG Small Church Community Groups

UN United Nations

UNON United Nations Office in Nairobi

US United States of America

WWII World War II

viiPeace Betrayed:The ICC Politics of Victimhood and The Threat of Instability in Kenya

ContentsAcronyms....................................................................................................vi1.0 Introduction...................................................................................12.0 A Historical Perspective on Victimhood............................32.1 1991-1993 and 1997-1998 Election Violence Victims......32.1.1 The Nature of the Violence and the Victims....................32.2.0 Responses to the 1992 & 1997 Election Violence Victims.............................................................................................102.2.1 The Report by the Parliamentary Select Committee to Investigate Ethnic Clashes in Western and Other Parts of Kenya 1992 (The Kiliku Committee)....................102.2.2. The Judicial Commission Appointed to Inquire into Tribal Clashes(The Akiwumi Commission)........................112.2.3 Jesse Jackson Visits Kenya.......................................................122.2.4 The International Community and Western Donors........122.2.5. The United Nations Development Program (UNDP) Displaced People’s Programme.............................................142.2.6 Local Level Efforts......................................................................15 3.0.0 The 2007-2008 Elections........................................................163.1.0 The Nature of the Violence......................................................163.2.0 Table of 2008-200 Post-election Violence Victims.......193.2.1 Responses to the Violence......................................................223.3.1 Operation Rudi Nyumbani.......................................................223.3.2 The International Community: The Power Sharing deal...................................................................................................233.3.3 The Commission of Inquiry into the Post-Election Violence (CIPEV). (the Waki Commission)........................254.0.0 The International Criminal Court...........................................274.1.0 The Foundation of the ICC and its Quest for Retributive Justice......................................................................286.0 The ICC Approach; Retributive Justice...............................356.1 The ICC and Victims...................................................................36

viiiPeace Betrayed:The ICC Politics of Victimhood and The Threat of Instability in Kenya

7.0 A Final Solution for all Victims of Political Violence; the Case for Restorative Justice...........................................378.0 Conclusions ..................................................................................43

1Peace Betrayed:The ICC Politics of Victimhood and The Threat of Instability in Kenya

1.0 Introduction

The International Criminal Court (ICC) has become inimical and too costly to the plight of political violence victims, the entire community and to the resolution of a history of victims in Kenya.

The ICC is doing this through its separation of prior victims of earlier cycles of political violence in its current case, excluding the involvement and the context of victimhood and marginalizing the community from participation. Its continuation is sharpening a high sense of separation and victimization by its construction of select victims, select offenders, select witnesses and select criminal events, thereby leaving victims and the society cynical and disjoined from the process while creating a polarised social order with a heightening sense of discord.

The early 1990s saw the onset of a new wave of political violence in Kenya that was outside of the occasional banditry that had been mainly characteristic of the former North Eastern and parts of the Eastern provinces. Ethnic or land clashes as they came to be erroneously called were organised, localised and sporadic conflicts that came to mainly take place during the electoral periods of general elections. I992 saw the first multi-party competitive politics for more than 20 years, where the then President Daniel arap Moi for the first time faced real competition at the ballot, where organised political violence was used as a strategy to kill the vote allied to the opposition.

This sporadic violence was characterised by looting and destroying farms through arson, displacement of occupants, and killing and injury of people in targeted areas. These conflicts took place in the electoral cycles of 1991-1993, 1997-1998 and 2007-2008.

The 2007-2008 violence took a different dimension from the prior cycles of violence. The areas involved included the usual regions in the then Rift Valley Province, the Coast Province, Nairobi and the border areas of Nyanza Province and new areas including Central Province, where violence was more widespread. These conflicts related to competitive


politics and the issue of grievances over land and other historical injustices was used to spur and camouflage the real causes of the conflicts.

Over 5,000 people have died, over 1,000,000 people have been displaced and property destroyed in all cycles of violence. The ICC has moved to Kenya and chosen the 2008 victims as the poster children of a cause of retributive justice that is increasingly making the Kenyan situation

worse by deepening differences while completely ignoring the need for a wholesome restoration of all victims of violence.

This report addresses the victims question in Kenyan politics through a historical approach, responses by different actors to the victims and the current approach to victims and victimhood, especially the ongoing ICC case at The Hague and what needs to be done to effectively deal with the complex issue of victims, historically, in the context of the politics in which their victimhood arose, the need for restitution, peace and reconciliation and finding a lasting solution.


2.0 A Historical Perspective on Victimhood

Kenya’s history of political violence has left many victims in its wake. These victims have varied in type from these who have died, those injured, those displaced, those who have lost property to those unjustly accused by the politics that is the cause of victimhood. Individuals, communities and the whole nation have interchanged roles as victims and perpetrators in what has been Kenya’s convoluted web of violence.

Victimhood is not a recent phenomenon, it has a deep history. The creation of the Kenyan state itself brought about unwitting victims and its subsequent history has ceated various types of victims. In our study, we take a special look at victims in the political context, especially through the election cycles of 1991-1993, 1997-1998 and 2007-2008.

2.1 1991-1993 and 1997-1998 Election Violence Victims

The first politically instigated violence erupted in October 1991 in the Rift Valley. KANU politicians organised Kalenjin youths to expel hundreds of non-Kalenjin from the land they jointly owned at a cooperative farm in Nandi District, threatening the lives and damaging the property of those who resisted. Similar incidents spread across the southern half of the Rift Valley and neighbouring districts in Western and Nyanza provinces. In 1993, Human Rights Watch/Africa Watch reported that over 1,500 people had been killed and at least 300,000 fled their land.1

2.1.1 The Nature of the Violence and the Victims

While attacks have continued in this region, they generally occur at a much lower level than was the case in 1994. A notable exception was in January 1998, immediately following national elections, when attacks killed over 100 people and displaced thousands more.

A series of violent attacks also took place in Coast Province, in the 1. Human Rights Watch/Africa Watch, Divide and Rule: State-Sponsored Ethnic Violence in Kenya (New York: Human Rights Watch, 1993), pp. 1, 90.


Likoni-Kwale area, from August to November 1997. Precise figures are unavailable and estimates of fatalities vary from 70 to as many as 1,000. Many more were injured and their homes or businesses destroyed. The threat of further violence displaced 100,000–200,000 people. Violence also erupted periodically in the northern part of the country among traditionally pastoralist communities such as the Samburu, Pokot, and Marakwet.

According to the Kiliku Committee2 government officials paid attackers per permanent house burned and per person killed or thatched house burned, while KANU leaders armed and trained private militias in special camps. Sources also reported government trucks and even helicopters transporting hired militias into the affected communities.3 Similarly, during the coastal violence in 1997, organized, unidentified armed people attacked members of “upcountry” ethnic groups. As in the Rift Valley, indirect links were traced to the government, including indications that the instigators had been armed, trained, and coordinated by KANU officials with the goal of consolidating their declared KANU zone4. An estimated 75 to 100 percent of upcountry people were displaced in the areas directly affected by the attacks.

In all cases, witnesses reported that security forces stood by, at best only firing in the air in ineffective attempts to scare off attackers. In some instances, police officers, paramilitaries, and other security forces actually disarmed those trying to defend themselves from raiders. Sometimes they even joined in the attacks. Victims seeking police intervention were often ignored, even beaten. When raiders were captured and transferred to police custody, they were usually released within hours. The powerful provincial administration, which reports directly to the Office of the President, was often complicit.5 More than

2. Republic of Kenya, National Assembly, Report of the Parliamentary Select Committee, p. 75;3. In the Daily Nation of 9/4/1996 Ndingi Mwana a’Nzeki, Catholic Bishop Diocese of Nakuru, told his con-gregation at the Cathedral of Christ the King in Nakuru that unidentified lorries and a helicopter were trans-porting unknown people to the Rikia Forest.4. See Alamin Mazrui, ‘Kayas of Deprivation, Kayas of Blood: Violence, Ethnicity and the State in Coastal Kenya’ (Nairobi: Kenya Human Rights Commission, 1997).5. Republic of Kenya, National Assembly, Report of the Parliamentary Select Committee, pp. 68–73.


anything, the passivity and apparent collusion of state agents convinced observers that the government was involved in the organization and execution of the violence.

The central rationale of the violence of 1992 and 1997 appears to have been to maintain the political and economic status quo in the Rift Valley region and other KANU allied areas during the run up to the General Election.6 The displacement at this point had political motivations

closely linked to land tenure issues and forced displacements from Kenya’s colonial past to camouflage the real cause of the Violence. People perceived to support opposition groups were ordered by groups allied to the ruling party KANU to leave the Rift Valley and return to where they came from.

The violent displacements followed almost exactly with the amendment of the Kenyan Constitution to permit multiparty politics in September 1991.7 Parties were formed along tribal lines, with KANU-allied politicians mobilizing youths within their communities to displace people viewed to belong to opposition parties. A total of about 1,170 people died in the 1991-92 violence and 304,000 were displaced with destruction of property that included farms, houses and commercial buildings in violence that ranged from Molo to Chwele.8

Human Rights Watch describes the pattern of violence in the following manner:

“The reports of the attacks are remarkably similar. Hundreds of young men, dressed in an informal uniform of shorts and tee-shirts, armed with traditional bows and arrows, attack farms inhabited by Kikuyus, Luhyas, or Luos, all communities associated with the political opposition. The warriors loot, kill, and burn, leaving death and destruction in their wake. To a lesser extent, there have been retaliatory attacks against the Kalenjin, though these have been less organized and more opportunistic 6. M. S. Kimenyi, N. S. Ndungu, Sporadic Ethnic Violence: Why Has Kenya not Experienced a Full- Blown Civil War?7. See “Democracy in Kenya?” Reconstruction, Vol. 2, No. 1 (1992), p. 52.8. Table 1.1


in character, creating an escalating cycle of violence. There is a growing atmosphere of hatred and suspicion between communities that had lived together peacefully for many years.”.9

These attacks would create a pattern and provide a template which future political violence would take. This created the basis under which political violence would be waged in later years, including in 1997 and 2008. The 1992 elections were the first to reflect the tribal organisation

Kenyan politics would increasingly take, with the trend reaching its height in 2007 in a disputed election and the diffusion of violence and resultant victims who numbered in the hundreds of thousands.

The organisation of State-sponsored violence camouflaged under ethnic violence took the form of calls for majimboism, an undefined form of decentralization that was however understood to mean that all tribes would have to go back to their ancestral homes. This fortified the idea of regions being exclusive to tribes and further fomented the move towards tribal formations that would compete for State-level power.

KANU politicians would be heard referring to others as “aliens” and “foreigners” in the Rift Valley as opposed to “natives” or “original inhabitants.10 A month before the ethnic clashes began, in a seemingly coordinated move, top KANU politicians arranged a series of political rallies in Rift Valley Province calling for majimboism. At a rally held on September 8, 199111, in Kapsabet, KANU MP Joseph Misoi read a statement declaring that a Majimbo constitution had been drafted that would be tabled before the House if proponents of a multiparty system continued their efforts.

The basic nature of the violence was of armed attacks orchestrated and financed by senior government officials, rather than originating in the affected communities. The 1992-1997 violence was not the result of ethnic conflicts or land tenure issues as it was framed and would have

9. Divide and Rule: State-Sponsored Ethnic Violence in Kenya, Human Rights Watch 199310.“Indigenous or Native? How Ntimama Sees It,” Daily Nation, June 30, 1993.11.Daily Nation (Nairobi), September 9, 1991


hardly escalated into large-scale violence without the outside instigation of KANU political actors.

The result however was heightened ethnic awareness that fomented ethnicity-based grievances and distrust among communities. From 1994 the violence was low-level but systematic, drawing limited national and international attention until 1997, when the infamous Likoni Clashes took centre stage. As Kenya moved closer to the 2002 general elections,

there was fear that mobilization towards violence would increase though the nature of the election – a presidential transition poll in which the incumbent was not a candidate – did not raise any considerable violence. In the 2007 elections however, ethnic awareness had risen to stratospheric levels where it was used as a mobilizing factor towards the election so much so that when grievances arose, communities used violence which had by this time been diffused in an ethnically charged environment.


1.1.1. Table 1. 1991-1993 Violence Cycle Victims

Table 1.0 1991-1993 Violence Cycle VictimsArea Date Length Cause Dam-

ages

Lives Lost

People Dis-placed

Property destroyed

Kericho

Extending from Muhoroni, Kipten-den, Ainamoi to Londiani, Kipkelion

Nov 1991 -Nov 1992

13 Months

Border Con-flicts and Politics

30 16,000 Farms, Homes and Food Stor-age Burnt

Nakuru

Molo, Njoro, Mau Summit, Kerin-get, Olenguruone

1991-1992 12 months

Land and Politics

1,000 200,000 Farms, Homes and Food Storage Burnt Cattle Stolen

Nandi

Tinderet, Miteitei, Cheboigony and Songor

August 1991-May 1992

10 months

Politics and Land

- 10,000 Farms Attacked

Narok Maai Ma-hiu, Trans-Mara, Gucha, Enosu-pukia, Mau-Narok

Between 1991 & 1992

12 months

Border Conflicts, Politics and Land

54 40,000 Farms Attacked

Trans Nzoia

Endebess, Kaptam, Mount Elgon, Kapsok-wony

1991-1992 12 months

Land and Politics

16,000 Farms, Homes and Food Stor-age Burnt

UASIN GISHU

Ainabkoi, Burnt Forest

1992 4 months

Politics 18 20,000 Farms, Homes and Food Stor-age Burnt

BUNGOMA

Chwele

1992 5 months


Sources; Various Nation newspapers, M. S. Kimenyi, N. S. Ndungu’s Sporadic ‘Ethnic Violence: Why has Kenya Not Experienced a Full-Blown Civil War?’


1.1.2. Table 2. 1997-1998 Election Violence Victims

Table 2.0 1997-1998 Violence Cycle VictimsArea Date Length Cause Damages

Lives Lost People Dis-placed

Property destroyed

Laikipia December 1997-Jan 1998

2 Months

Border Conflicts and Poli-tics

3 500 Farms, Homes and Food Stor-age Burnt, Theft of Livestock

Nakuru, Molo, Njoro, Mau Summit, Keringet, Olenguruone

1996-1997 18 months

Politics 500 100,000 Farms, Homes and Food Stor-age Burnt Cattle stolen

Narok 1997 12 months

Border Conflicts, Politics

27 18,000 Farms At-tacked

Mombasa 1997 3 months

Land and Politics

62 100,000 Businesses Destroyed, Collapse of Tourism industry

Kwale 1997 4 months

Politics 67 60,000 Businesses Destroyed, Collapse of Tourism Industry

Nyanza 1997 5 months


Sources; Various Nation Newspapers, M. S. Kimenyi, N. S. Ndungu’s ‘Sporadic Ethnic

Violence: Why has Kenya Not Experienced a Full-Blown Civil War?’


2.2.0 Responses to the 1992 & 1997 Election Violence Victims

In the wake of the violence and the varied types of victims, there were different responses from different actors in a quest to end the violence, find causes of the violence, restore the victims and deter future conflicts. The actors included the Government of Kenya, international community including countries like the United States, Britain and France, international organizations like the UN and local level initiatives by the Church and other locally organised groups.

2.2.1 The Report by the Parliamentary Select Committee to Investigate Ethnic Clashes in Western and Other Parts of

Kenya 1992 (The Kiliku Committee)

The Parliamentary Select Committee to Investigate Ethnic Clashes in Western and other parts of Kenya in 1992, chaired by Hon. Joseph K Kiliku, was appointed on 13th May, 1992 by a resolution of the National Assembly passed on 29th April, 1992. The 13-member Parliamentary Select Committee was appointed under the chairmanship of Joseph K. Kiliku. It commenced its work on May 14, 1992, and submitted its final report to Parliament in September 1992.

The scope of the Committee probe as summarized by the Kenya Human Rights Commission12 was to:

1. Investigate the root causes of the clashes that rocked the country since 1991;

2. Identify the person(s) who might have perpetrated or participated in the clashes and in this regard,

3. Identify politicians and political parties, organized groups, general public, administration, police and security personnel and local and international media involved in or responsible for the violence and

12. LEST WE FORGET: The Faces of Impunity in Kenya, Kenya Human Rights Commission, August 2011


4. Make recommendations that would help to avert such clashes in the future.

The Committee conducted numerous trips to the various parts of the country affected by the clashes and also interviewed more than 836 witnesses. In its report, the Committee analysed critically the roles played by politicians, political parties and security personnel, among others, and made its recommendations in that regard so as to avoid the

recurrence of similar incidents.13

The Kiliku Committee Report, when put to a vote of the National Assembly, was not adopted for being ‘shallow’, ‘inadequate’ and ‘malicious’. But the House’s comprehensive rejection of the Kiliku Report did not stop the newspapers, campaign organisations, foreign governments and the KHRC giving it credence and asking for its implementation.

2.2.2. The Judicial Commission Appointed to Inquire into Tribal Clashes(The Akiwumi Commission)

On 1st July, 1998, a presidential commission of inquiry, the Judicial Commission Appointed to Inquire into Tribal Clashes in Kenya, under Mr. Justice A. M. Akiumi, was established.

This Commission was crafted to justify the manipulation of the violence to fit the tribal narrative, whereas the violence was in real essence state sponsored. Its very name betrayed the apparent narrative that needed to be told with regards to the violence. It had been rigged from the beginning.

Known as The Akiwumi Commission, it was charged with determining the causes of ethnic violence from 1991 to 1998 and making specific recommendations, including identifying for prosecution those found to be responsible.

Taking testimony from over 200 witnesses over 11 months, the Akiwumi Commission focused particularly on the 1997 outbreaks of violence in

13. Ibid


Coast Province.

Akiwumi presented his report to President Moi on 19th August, 1999. Its contents, however, were to remain secret until the report was finally published by the Attorney General on 18th October, 2002.

The Akiwumi Commission had recommended that 189 people be investigated to ascertain whether they had played any part in the tribal clashes that occurred between 1991 and 1998.

The handling of the Akiwumi Commission’s investigation, however, and the recommendation it made call into question the validity of its inquiries and casts serious doubts as to its being an objective and independent body.

2.2.3 Jesse Jackson Visits Kenya

In 1998 after the Likoni violence, President Clinton’s Special Envoy for the Promotion of Democracy in Africa, Rev. Jesse Jackson, visited Kenya and toured areas of the Rift Valley affected by political violence. Rev. Jackson spoke out strongly against the violence both publicly and in a meeting with President Moi. As a result of his urging, President Moi visited the affected areas shortly afterwards. This was the second trip by Rev. Jackson

The local donor representatives who met Rev. Jackson failed to publicly spell out the nature of the violence and its links to government. They showed little or no interest in providing assistance for the newly displaced and the visit did little to remedy the situation of the victims

2.2.4 The International Community and Western Donors

The international community responded mainly with strategies and tools typically used for post-conflict peace building and conflict management phases of prevention – humanitarian assistance, resettlement, and the promotion of reconciliation14. The international community did not also 14. Stephen Brown “Quiet Diplomacy and Recurring “Ethnic Clashes” in Kenya. From Promise to Practice:


officially recognize the role of KANU in inciting the main incidents of violence. The international community engaged in low keydiplomatic pressure, avoiding confrontation and offering little or no public censure of the government and no aid conditionality or sanctions.

The international community only seemed to monitor the violence, sometimes send observers, and increased quiet diplomacy and had by 1994 almost altogether backed down to concentrate on economic and

other political issues. The international community did not attempt more proactive crisis prevention, management or accountability as would be the case in 2008.

The best coordinated response from the international community was through the UNDP. The UNDP took the lead in channelling the international community’s response to the violence in the Rift Valley. In 1993 it began a $20 million project in association with the Kenya Government, titled “Programme for Displaced Persons and Communities Affected by the Ethnic Violence.” A number of bilateral donors (including Austria, Denmark, Finland, Japan, The Netherlands, Sweden, the United Kingdom, and the United States) and the European Union supported the UNDP project and did not set up their own assistance programmes, thereby avoiding direct involvement.

The World Bank, the International Monetary Fund, and bilateral donors showed they had different priorities that centred around the economy. The United Nations was reluctant to intervene in the internal affairs of Kenya at that time before getting involved through the UNDP while the United States in particular seemed to be soft on the Moi regime following its cooperation on the war on terror that had become local with the 1998 bombing of the US embassy in Nairobi15. Faced with little intervention from the international community, the KANU regime under President Moi continued to orchestrate the political violence with impunity.

Strengthening UN Capacities for the Prevention of Violent Conflict (Boulder: Lynne Rienner, 2003): 69-100.15. Joel D. Barkan and Jennifer G. Cooke, “U.S. Policy Toward Kenya in the Wake of September 11: Can New Antiterrorist Imperatives Be Reconciled with Enduring U.S. Foreign Policy Goals?” Africa Notes no. 4 (December 2001).


2.2.5. The United Nations Development Program (UNDP)

Displaced People’s Programme

Between 1993 and 1995, the United Nations Development Program (UNDP) administered a program to return an estimated 300,000 persons who were driven off their land by state-sponsored violence.

This program was intended to reintegrate the people who had been displaced by the “ethnic” violence since 1991, with children accounting for as much as 75 per cent of that population and female-headed households comprising an estimated 40 per cent. The stated objective of the programme was “the reintegration of displaced populations into local communities, prevention of renewed tensions and promotion of the process of reconciliation.”16

In terms of offering effective assistance, protection and reintegration to the thousands of internally displaced Kenyans, the UNDP’s record fell far short of what it could, and should, have been. Ultimately, the manner in which the programme was run resulted in the greatest attention being placed on that part of the program that was relatively the easiest and least politically controversial to administer—the relief part—and neglect of the protection, human rights, and long-term needs of the internally displaced.17

On December 24, 1994 an incident occurred that was so extreme as to result in the eventual closure of the UNDP project. In the middle of the

night, police and KANU youth wingers razed the Maela camp, which housed 10,000 displaced people, and forcibly removed 2,000 Kikuyu, dumping them at three sites in Central Province, their so-called ancestral province.

This incident became the lowest part in the controversy ridden programme and blemished the UNDP’s credibility even as it continued 16. Programme for Displaced Persons and Communities Affected by the Ethnic Violence,” UNDP, February 1994.17. Failing the Internally Displaced: The UNDP Displaced Persons Program (New York: Human Rights Watch/Africa, 1997).


to belittle the incident, terming it, “a hiccup in an overall positive programme”18. The most concerted effort to resettle victims colapsed shortly thereafter. Donors from henceforth supported various projects in reconciliation and peace building, but with little coordination from a central agency taking charge.

2.2.6 Local Level Efforts

The most concrete local action with regard to victims of the violence came from the local church. Churches and schools in safe areas were usually the first destination for people displaced from conflict areas. For example, in 1992, victims in the Molo town and Sitoito camp areas made camp in churches and received food and clothes under the auspices of the Catholic Diocese of Nakuru19.

The Church would also be in the forefront in pleading the case for the victims of the violence. The Catholic Church in particular, led by the Nakuru Diocese Bishop, Ndingi Mwana a’Nzeki, was foremost in the advocacy. In an incident in 1993, Prof Wangari Maathai was stopped from opening a planned seminar for the victims of the Molo tribal clashes by policemen led by Rift Valley provincial CID boss David Kipkemei Korir, the Nakuru OCPD Philip Cheruiyot and senior Special Branch officers. The officers were criticized by Bishop. a’Nzeki, who argued with the policemen that their actions were a violation of human rights and that since the victims of Molo and Burnt Forest sought frefuge in their church compound, no government officer had come to console with them. After

five days of negotiations between the District Commissioner and the Church, access to the displaced was allowed.20

The Church would also raise the alarm on behalf of victims or where it received intelligence of impending attacks. Bishop a’Nzeki, in an a widely 18. On December 24, 1994 an incident occurred that was so extreme as to result in the eventual closure of the UNDP project. In the middle of the night, police and KANU youth wingers razed Maela camp, which housed 10,000 displaced people, and forcibly removed 2,000 Kikuyu, dumping them at three sites in Central province, their so-called ancestral province. Even then, UNDP continued to defend the government, terming the incident a “hiccup” in an overall positive program19. Daily Nation (Nairobi), September 20, 199220. Daily Nation (Nairobi), March 3, 1993


publicized call from the altar, told his congregation at the Cathedral of Christ the King in Nakuru that unidentified lorries and a helicopter were transporting unknown people into the Rikia forest.21.

Church efforts at peace building and reconciliation were also highly pronounced, with communities being brought together under the Church, especially under the Small Church Community Groups (SCSG).

3.0.0 The 2007-2008 Elections

The 2007-2008 post-election violence has become Kenya’s most infamous cycle of violence overshadowing all prior cycles of the post-Independence era, while its victims have become the most identified and in whose name the ICC case has been instituted. In many ways, the contestation over these victims’ victimhood has been at the centre of the 2007-2008 post- election violence resolution.

3.1.0 The Nature of the Violence

On 30thDecember 2007, an announcement by the Electoral Commission of Kenya (ECK) that President Mwai Kibaki had won a bitterly contested

election plunged the country into a political, security and humanitarian crisis. Between December 2007 and February 2008, protest riots in the name of mass action, attempts at containment by the security forces and revenge attacks from both camps caused over 1,378 deaths, 3,335 injuries and more than 352,527 internally displaced persons (IDPs).22

The two coalitions that were at the centre of the electoral contest and its violent aftermath, the Orange Democratic Movement (ODM) and the Party of National Unity (PNU), included support from different ethnic communities of the country. The Kikuyu, Embu, and Meru from the Central and Eastern provinces with a strong migrant presence in Nairobi, 21. Daily Nation (Nairobi), September 4, 199622. Commission of Inquiry into the Post-Election Violence (the CIPEV, or The Waki Commission)


Coast Province and the Rift Valley and other parts of the country formed the bedrock of PNU Support. The Luo, Luhya and Kalenjin from Nyanza, Western Provinces and the Rift Valley with a strong migrant presence across the country as well formed the bedrock support for the ODM. The Muslim populated areas of Northeastern and Coast provinces also provided a strong backing for ODM.

The violence, for the first time in the history of Kenyan political violence,

took an ethnic dimension. The ethnic groups allied to ODM were the first to protest the election result announcement and unleash violence in several areas across the country.23 The violence took the form of forced displacement of people, burning down of farms, houses and businesses allied to the opposed groups, and the rape, killing and injury of victims. Government infrastructure was also targeted in the violence as the President-elect was also had of government.24

On the other hand, ethnic communities allied to PNU who suffered in the first wave of attacks regrouped and countered the violence in their own backyards by targeting communities allied to ODM. The use of militia groups in the violence who had largely existed before as criminal groups, arose especially the Kikuyu-allied militia, The Mungiki25. The violence took the form of forced displacement of people, burning down houses and businesses allied to the opposed groups, rape, killing, injury and the forced circumcision of men. There were allegations of police killings as they sought to intervene in ending the violence.

Within six weeks, the violence had come to an end as power-sharing

23. Table 3.224. The violence in Kisumu and other towns of western Kenya started on 29 December, as a protest against delays in the announcement of results. The next day, immediately after the ECK announcement, riots broke out across the country, mainly in Nairobi, Kisumu, Eldoret (the scene of the terrible church massacre which did more to focus and sustain international attention on the erupting crisis than anything else) and Mombasa. Odinga supporters turned their anger on those they perceived as supporters of Kibaki, mainly members of the Kikuyu tribe. The ferocity and speed of the violence caught many by surprise. Hundreds were killed in less than 24 hours. Houses and shops were set ablaze. Thousands began fleeing. By the second day, Kenya appeared to be on the brink of civil war. KENYA IN CRISIS Africa Report N°137 – 21 February 2008 International Crisis Group.25. Non-Kikuyu gangs such as the so-called ‘Taliban’ and ‘Baghdad Boys’—largely Luo-based—and the Sabaot Land Defence Force, the Chinkororo of Kisii origin and other previously organised criminal groups were also responsible for some of the more organised violence.


negotiations between the two antagonists Raila Odinga and Mwai Kibaki were now in play as mediated by former UN Secretary General Kofi Annan under the auspices of African Union and international community support. Several initiatives to study, map and ensure the ugly incidents were never repeated took place, including initiatives in the National Accord that was finally signed.


3.2.0 Table of 2008-200 Post-election Violence Victims

Table 3.0

Table 3.0 Waki Report 2007/2008 Post election Violence

Area Date Dam-ages

Lives Lost

People Injured

People Displaced

Property Destroyed

RIFT

VALLEY

Nandi Hills,Nandi North,Nandi South

508 Injured, 3 Rapes

3000 1,000 Houses Burnt

Narok: Songoo, Tendwet, Kimogor, Nkopen, Olmekenyu Centre, Oleshapani, Meleleo, Ololungua

3/1/2008 2 60

Trans Nzoia: Trans Nzoia West, Githam-ba, Timboroa, Kitale, Salama

105 389 + 119 Rape Cases

UASIN GISHU; Kiambaa, Langas, Ju-ruma, Hawaya, Mal-ime, Tarakwa, Munya-ka, Kapsoya

30/12/2007 241 726 21,749 52,611 Hous-es Burnt, 58 civilian motor vehicles and 2GK vehicles

Kuresoi 16/1/2008 150 170 66,000 1,564 Houses Burnt

Nakuru District 31/12/2007 to 3/3/2008

479 84 Injured +4 Luos Forciby Circum-cised

45,000 1,215 Houses Burnt

Rift Naivasha District 26/1/2008 to 3/2/2008

98 22,000 10000

South Rift and Kisii Region

48 3568 Build-ings Burnt, 3 Chiefs Offices, 80 Schools, 2 Zonal offices,7 Dis-pensaries

Sotik 8,500


Kericho 11,250

W e s t e r n Province

Mumias, Busia, Ka-kamega, Butere, Lugari, Bungoma, Vihiga

98 55,862

N y a n z a Province

Kisumu From 29/12/2007 to 11/2/2008

117 256 2,886 50 GK Vehicles Destroyed,73 Business Premises and 415 Residen-tial Houses Looted.

Homa Bay 6 35

Rongo 47

Migori 11 612

Gucha 7

Nyamira, 29

Nyando, 3 55

Siaya, 6

Rachuonyo, 18

Kisii, 6 58

Bondo, 12

Borabu, 6 63

Suba, 1 6 Nairobi Kibera, Kariobangi,

Dandora30/12/2007 to 30/1/2008

111 462+1 man penis cut off.

Toi Market Burnt for 3000 traders

C e n t r a l Province

4/1/2008 to 5/3/2008

8,000

C e n t r a l Province

Kiambaa Division 1,435

Githunguri Divi-sion

2,100 12 Houses Burnt

Karuri Police Sta-tion

30

Kirima (Nyandarua North)

900

Kiambu West Dis-trict

19,096


Nyeri Police sta-tion

900

Tigoni Police Sta-tion

5,390

Ruiru 620

Juja 600

Thika 552

Maragua 68

Kinangop 66

Karatina 193

Kikuyu 500

Thika 5,437

Kiambu East 8,164

Nyeri South 2,236

Nyeri North 3,872

Murang’a North 2,503

Murang’a South 2,910

Gatundu 3,452

Nyandarua South 16,800

Nyandarua North 19,605

Kirinyaga 149

Othaya 90

Coast

Province Mombasa 24 Vehicles Burnt, 240 Res-idential Hous-es,240 Com-mercial Houses Burnt


Changamwe 20 Shops Broken Into ,4 Houses Burnt

Likoni 5 109 10,000

Source; the Commission of Inquiry into Post-election Violence (CIPEV) Report

3.2.1 Responses to the Violence

The main response to the 2007-2008 political violence and how it impacted on the victims mainly came through the peace mediation that was undertaken under the auspices of the Panel of Eminent African Persons appointed by the African Union. This process would lead to the signing of the Agreement on the Principles of Partnership of the Coalition Government’s and the National Accord that would manage the whole process, including the need for resettlement and restoration of the post-election violence victims. The National Accord process laid out a series of agenda and resolutions with timelines for the national healing and reconstruction process.

3.3.1 Operation Rudi Nyumbani

Operation Rudi Nyumbani, a resettlement process by the Government of Kenya started in 2008, was also a major response and action on behalf of the victims of the 2007 post-election violence that led to the formulation of a policy and an Act of Parliament on managing internal displacement of people. In September 2008 a cash payment programme for resettlement of all IDPs was launched, with each household set to get KSh400,000.

A report published in January 2015 compiled by the Permanent

Representative Committee on Refugees, Returnees and Displaced

Persons of the African Union showed that over 663,921 people, or about

250,000 households, were displaced during the 2007/8 post-election crisis


and the government had resettled about 303,466 displaced households

over the last decade, a figure higher than the number of households

displaced during the crisis because it took in other displaced people

such as those evicted from various forests and water catchment areas26.

3.3.2 The International Community: The Power Sharing deal

After a week of violence that stretched across the country in specific

hotspots, it became apparent that some form of intervention was necessary. International pressure mounted in earnest. In the midst of the chaos, US Secretary of State Condoleezza Rice and David Miliband, the British Foreign Secretary, issued a joint statement calling for an end to the violence. The UN through the Secretary General Ban Ki Moon set out goals that needed to be achieved as soon as was possible in the Kenyan situation27. A host of African leaders, including Nobel Laureate Desmond Tutu and Ugandan President Yoweri Museveni came to Nairobi to call for dialogue between the warring groups. The then Ghanaian President John Kufuor, African Union Chairman arrived and managed to persuade both parties to start political dialogue with the help of a Panel of Eminent African Person appointed by the African Union.

The panel would be chaired by Kofi Annan joined by former Tanzanian President Benjamin Mkapa and former South African First Lady Graca Machel. Annan, a former UN Secretary General, has global stature and credibility, with experience in mediating conflicts in Iraq, East Timor, and the Israel-Palestinian territories. The unique team, mandated by the AU, relied on worldwide diplomatic support, and had the technical support of the United Nations, including the Department of Political Affairs (DPA), the United Nations Development Programme (UNDP), 26. Daily Nation (Nairobi), January 31, 201527. The Kenya situation was the first instance in which the United Nations employed a responsibility to protect (RtoP) lens in shaping its responses to an ongoing crisis. The Secretary-General decided, following consideration by the Policy Committee, that the world body’s first goal in Kenya should be to prevent the further commission or incitement of RtoP crimes and violations—genocide, war crimes, ethnic cleansing, and crimes against humanity. As Kofi Annan has since related, he adopted the same perspective in his medi-ation work there. Of particular concern, given the escalating violence, were possible acts of ethnic cleansing or crimes against humanity. E, Lindenmayer., J .L Kaye., ‘A Choice for Peace? The Story of Forty-One Days of Mediation in Kenya’, IPI August 2009


and United Nations Office in Nairobi (UNON), as well as the Geneva-based Centre for Humanitarian Dialogue (HD Centre)28.

At a session held on 1st February, 2008 at the Serena Hotel, Nairobi, the parties to the Kenyan Dialogue and Reconciliation Meeting on the Resolution of the Political Crisis and its Root Causes, under the chairmanship of Annan, namely Government of Kenya/PNU and the ODM agreed on four main agenda for the talks. These were; immediate action

to stop violence and restore fundamental rights and liberties, immediate measures to address the humanitarian crisis, promote reconciliation, healing and restoration, how to overcome the current political crisis and finally addressing the longstanding issues and solutions including constitutional reform and inequalities in the country. Subsequently, on 4th March, 2008, the parties agreed to form two commissions – the Independent Review Committee (IREC) and the Commission of Inquiry on Post-election Violence (CIPEV). The two would be non-judicial bodies mandated to investigate and report on different aspects of the problematic issues in the crisis29.

After a dogged series of back-and-forth with a team of negotiators appointed by both the PNU and ODM principals, the mediation process seemed to make little progress with both teams digging in for their preferred outcomes30. But on 27th February, Annan met the two principal leaders at the Office of the President at Harambee House. Machel had returned to South Africa, former Mkapa and his successor President Jakaya Kikwete had come to help Annan close the deal.

After five hours, Annan had his deal; a 50/50 split of all the Cabinet positions between the two sides and an agreement – The Agreement on the Principles of Partnership of the Coalition Government. This process resulted in the draft National and Reconciliation laws that would be 28. E, Lindenmayer., J .L Kaye, A Choice for Peace? The Story of Forty-One Days of Mediation in Kenya, IPI August 200929. Kriegler and Waki Reports Summarised Version; Dialogue Africa Foundation, Revised Edition, 200930. The negotiation process took place in the Orchid Room at the Serena Hotel, where Kofi Annan and his team led negotiations between PNU represented by Martha Karua, Sam Ongeri, Moses Wetang’ula and Mutula Kilonzo. On the ODM side were James Orengo, Musalia Mudavadi, William Ruto and Sally Kosgei


quickly submitted to Parliament and written into the constitution. When Parliament convened on March 6th, the four bills legalizing the Grand Coalition were passed without amendment.31

The independent Review Committee (IREC) Kriegler Commission came up with proposals on the Electoral process from a review of the 2007 elections. The recommendations on electoral legal framework, the organisational structure and operation of elections, and the composition

and mandate of the Electoral Commission, political parties, the media, civil society organisations, opinion polls and electoral observation led to electoral reform that largely helped manage the 2013 elections within a proper elections management framework

3.3.3 The Commission of Inquiry into the Post-Election Violence

(CIPEV). (the Waki Commission)

The more notorious of the two commissions was however the Commission of Inquiry intothe Post-Election Violence (CIPEV) or the Waki Commission whose mandate had the biggest impact on the case for justice for victims of the PEV. The Commission was appointed under the Commissions of Inquiry Act (Cap 102) Laws of Kenya, but consequent to the National Dialogue and Reconciliation Agreement.

CIPEV’s findings relate to the testimony of 156 witnesses and 144 other witnesses who submitted depositions and recorded statements when the Commission moved around the country from July 2008 to September 2008 to gather evidence and other information on the post-election violence. The hearings were conducted in Nairobi, Naivasha, Nakuru, Eldoret, Kisumu, Borabu and Mombasa. The Commission had only a limited period to carry out these investigations and as such their findings may not have been exhaustive.32

31. Consequently, when the agreement had been signed and people rushed into the streets to celebrate the new year which had been stolen from them by the tragic crisis two months before, there was no doubt that the pact had been brokered by Annan, but that peace itself had been chosen and embraced by the Kenyan people. E, Lindenmayer, J .L Kaye, ‘A Choice for Peace? The Story of Forty-One Days of Mediation in Kenya’, IPI August 200932. Kriegler and Waki Reports Summarised Version; Dialogue Africa Foundation, Revised Edition, 2009


The Commission made the following findings on the victims and destruction that happened during the post-election violence

1. A total of 1,133 people died as a consequence of the post-election violence. The geographical distribution of the deaths was unequal, with most of the post-election violence-related deaths concentrated in the provinces of Rift Valley (744), Nyanza (134) and Nairobi (125). The districts of Uasin Gishu (230), Nakuru (213)

and Trans Nzoia (104) in the Rift Valley Province registered the highest number of deaths related to post-election violence.

2. A total of 3,561 people suffered injuries inflicted by or resulting from sharp pointed objects – 1,229 from blunt objects, 604 from soft tissue injury, 360 from gunfire, 557 from arrows, 267 from burns and 164 from assault.

3. A total of 117,216 private properties (including residential houses, commercial premises, vehicles, farm produce) were destroyed, while 491 government-owned properties (offices, vehicles, health centres, schools and trees) were destroyed.

4. Gunfire accounted for 962 casualties, of whom 405 died. This represented 35.7% of the total deaths, making gunfire the single most frequent cause of deaths during post-election violence. It was followed by deaths caused through injuries sustained as a result of sharp pointed objects at 28.2%.

5. The post-election violence was attributed to historical and long-term tensions in the conflict red spots that seem to have endured since Independence, and intermittently boiled over to active violence (investigated in part by the Akiwumi Commission in 1997) as well as the immediate trigger of perceived rigging of the December 2007 presidential polls.

CIPEV made a number of recommendations to the Government. These findings were also presented to the appointing authority, Annan. The


major recommendations as to the case for justice for the victims were as follows:

In carrying out its TOR, the Commission had to make a crucial decision on whether or not to name those persons alleged by various witnesses to have perpetrated violence at some level. In the end, the Commission recommended thorough investigation and eventual prosecution of people alleged to have masterminded the violence in parts of the country.

These names were placed in a sealed envelope, together with supporting evidence. Both were kept in the custody of the Panel of African Eminent Persons, pending the establishment of a special tribunal to be set up in accordance with the recommendations. However, in default of setting up the Tribunal, consideration would be given by the Panel to forward the names of alleged perpetrators to the special prosecutor of the International Criminal Court (ICC) in The Hague to conduct further investigations in accordance with the ICC statutes. The Special Tribunal was never implemented as recommended despite two guarantees to Kofi Annan and on 8th July 2009, Annan handed over the envelope to Luis Moreno Ocampo.

4.0.0 The International Criminal Court

In 2005, Kenya ratified the Rome Statute, the ICC’s founding treaty,

giving The Hague-based court complementary jurisdiction for crimes

against humanity committed in Kenya. Complementary jurisdiction

means that the ICC can only step in if a state proves unable or unwilling

to investigate and prosecute crimes committed on its territory or by one

of its nationals.

Using this power, in July 2010 the ICC Ocampo invoked his proprio

motu powers, for the first time ever, to request ICC judges to look into

PEV crimes. The proprio motu powers allow the prosecutor to open


preliminary investigations without a referral from a state party or the

UN Security Council

On 15th December 2010 Ocampo named six Kenyans33, three from each of the feuding sides, ODM and PNU. Those named were: Uhuru Muigai Kenyatta, the then Deputy Prime Minister and Minister of Finance (PNU) and now President of Kenya since 9 April 2013; William Samoei Ruto, the then Minister for Higher Education, Science and Technology (ODM) and now Deputy President of Kenya since 9 April 2013; Francis Kirimi Muthaura, the then the Head of Public Service and Cabinet Secretary (PNU); Henry Kiprono Kosgey, the then the Minister for Industrialisation (ODM); Major General Mohammed Hussein Ali, the then the Commissioner of Police; and Joshua arap Sang, a former radio presenter at KASS FM, a radio station broadcasting in the Rift Valley.34

These cases at the ICC are the biggest attempt at the claim to find justice for the 2007- 2008 election victims. While only the case against William Ruto and Joshua Arap Sang continues in a series of setbacks for the ICC on the other suspect cases, the very nature of the cases, the foundational philosophy of the court and the stated objective of finding justice for the victims of the post-election violence come into question.

4.1.0 The Foundation of the ICC and its Quest for Retributive Justice

The foundations of the International Criminal Court go back to the 1945 Nuremburg Trials that were set up to try the war criminals of World War II. After the defeat of Nazi Germany in WWII, the Nuremberg Trials were created by the United Nations in 1945 in the Treaty of London that gave the responsibility to manage the trials to the victorious Allies, the US, Britain, France, and the Soviet Union35. In that treaty, the Allied powers concluded an Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, in which they established an

33. These six suspects came to be famously known as the Ocampo Six34. Ocampo names Kenya chaos suspects, Daily Nation, December 15, 201035. Washington, E. (2008). The Nuremberg Trials: Last Tragedy of the Holocaust, Lanham: University Press of America. p. 17).


International Military Tribunal for the trial of those war criminals “whose offences have no particular geographical location” 36The Charter of the Tribunal granted jurisdiction over crimes against peace, war crimes, and crimes against humanity, and over conspiracy to commit the crimes as they were defined in the Charter.

In his book, The Nuremberg Trials: Last Tragedy of the Holocaust, Ellis Washington proposes that the Framers of the United Nations and

its international legal arm, the Nuremberg Tribunal, utilized a defective legal philosophy and jurisprudence sixty years ago where adherence to this ineffective legal philosophy has virtually destroyed subsequent international war crimes cases that in modern times have devolved into symbolic show and farcical trials at The Hague.

Critics of the Nuremburg trials have called them out as a spectacle of victor’s justice, mainly in the fact that the trials saw the vanquished Nazis tried by the victorious Allies and that the standards of judgment applied to the defeated Germans were not applied to the victorious Allies who were also guilty of war crimes during the same conflict. Victor’s justice is simply a form of vengeance that is hidden behind a curtain of legality. It emanates from and leads to the concept of retributive justice.

Justice requires that crimes should be punishable by law. Retributive justice requires that consequences to of crime should be proportionate in their magnitude to the crimes. Evil incurs a public debt that is only addressed adequately by retributive justice. Retributive justice as argued by its proponents is one that is first and foremost rooted in moral principle. When properly understood, it serves society in important ways, especially by isolating individuals who are a threat to society. “It expresses social outrage at morally perverse acts; it controls the extent to which the citizenry is victimized by criminal acts; it rewards the perpetrator proportionately with consequences befitting the crime; and it rehabilitates the offender by forcing him to reflect on

36. Paulson, S. L. (1975). Classical Legal Positivism at Nuremberg, Philosophy & Public Affairs, 4(2), 132-158. p. 137).


the grievous nature of the crime. Each of these elements is critical in preserving the social order.”37

At the centre of the theory of Retributive justice is the individual, the person who has to be isolated from community for society’s good. The place of the Individual is a major tenet of western philosophy, the individual is at the centre of western philosophy and the impact it has had in moulding western civilization extends to every aspect including

the aspect of justice and in this case retributive justice. Western philosophical tradition has the individual as central to understanding justice.

The early modern theories of Thomas Hobbes, John Locke, and Jean Jacques Rousseau in explaining the “state of nature” have the common foundation of life as “solitary”. All three thinkers saw human beings in the state of nature as isolated individuals, for whom society was not natural.38

This understanding of human nature as individualistic underpins the understanding and foundations of Western philosophy with regards to justice. It has been criticized39 and even labelled by Francis Fukuyama as the “Hobbesean Fallacy”40 because it posits that there was a time that humans existed only as individuals while human evolution and anthropology suggest that there was never such a time and that humans have always existed in society with extensive social and political skills more akin to Aristotle’s argument that humans are political by nature.

This philosophical tradition has been the foundation of the evolution of Western justice and greatly influenced the Nuremburg Trials and consequently its legacy in the International Criminal Court. This view has greatly contributed to the aspect of perpetrator accountability which, while critical in traditional domestic criminal law, encounters

37. Revenge and Retribution, T, Francis 201138. F, Fukuyama, 2011. The Origins of Political Order: From Pre-human Times to the French Revolution, pg 2939 In his 1861 book Ancient Law: its Connection with the Early History of Society and its Relation to Modern Ideas the English Scholar Henry Maine criticizes the state of nature theorists40. F. Fukuyama The Origins of Political Order, pg 29


great challenges in international criminal law, where the nature and context of the crimes committed do not lend themselves directly to this view as the framers of international courts would want

In re-examining the nature and history of genocide with particular analysis of the Rwandan Genocide, Mahmood Mamdani41 contrasts the nature of a localised conflict like the Rwandan case to the bureaucratised and impersonal nature of the Holocaust. He states “Whereas Nazis

made every attempt to separate victims from perpetrators, the Rwandan genocide was very much an intimate affair. It was carried out by hundreds of thousands, perhaps even more, and witnessed by millions…”

The resonance and participation of the genocide from below was overwhelming and produces a specific challenge in examining the Rwandan Genocide.

This particular social context of conflict, where participation is not merely by individuals but by communities with grievances against each other, presents the dilemma in trying to model justice for victims around the ICC model that is essentially built for individual perpetrator accountability. Mamdani contextualizes it in two great examples:

“In its social aspect, Hutu/Tutsi violence in the Rwandan genocide invites comparison with Hindu/Muslim violence at the time of the partition of colonial India. Neither can be explained as simply a state project…one needs to explain the large-scale civilian involvement in the genocide. To do so is to contextualize it, to understand the logic of its development”.42

Rejecting easy explanations of the genocide as a mysterious evil force that was bizarrely unleashed by a select group of individuals, Mamdani situates the tragedy in its proper context. He brings to the surface the historical, geographical, and political forces that made it possible

41.M, Mamdani. 2001. When Victims Become Killers: Colonialism, Nativism and the Genocide in Rwanda, Princeton University Press42. M, Mamdani. 2001. When Victims Become Killers: Colonialism, Nativism and the Genocide in Rwanda, Princeton University Press Chapter 5.


for so many Hutu to turn so brutally on their neighbors. This same contextualixation is needed for the Kenyan political violence of 2008.

5.0. A Comparative Look at Election Violence in Kenya

All three cycles of Kenyan political violence have largely but erroneously been drawn with a single brush along ethnic lines where tribes have

been staked against each other. It has not always been so.

Kenyan tribes are diverse; some are agrarian while others are pastoralists with a considerable coastal population. We have Nilotes, Bantus and Cushites who before the arrival of colonialism were exclusive and independent self-governing communities. With the onset of colonialism and the identification of Kenya as a viable white settler state, some communities were displaced from their ancestral homes to pave way for colonial white settlement in the white highlands, while others were moved to provide labour for the white settlers in regions far away from home43. Some were moved as far away as other continents to mainly fight World War I for the British as far afield as Burma.44

This displacement of people led to settlement outside original tribal ancestral lands. At Independence in 1963, little was done to restore displaced communities to their lands. The resultant haphazard resettlement schemes and the rise of land buying companies further encouraged people to move from ancestral lands to new schemes that had been created most especially in the Rift Valley where traditional Kalenjin and Maasai lands had been taken away. 43. It is often suggested that land scarcity—and its distribution—aggravated by other factors such as a high rate of population growth and environmental degradation, has contributed to the violent “clashes” in Kenya. Since the 1920s, political and economic factors have encouraged the movement of populations within Kenya’s national borders, often to zones where they constitute ethnic minorities. For instance, numerous Kikuyu and members of other ethnic groups migrated after being dispossessed by the British. Others moved to Rift Valley Province as farm labourers, farmers, traders, or civil servants. After Indepen-dence, the Government purchased many British settlers’ fertile farms for distribution to Africans. A large number of Kikuyu benefited from these land transfers, either because of their greater access to capital to purchase the land (due to their relations with the colonial government and economy) or because of their political connections to Jomo Kenyatta’s Kikuyu-dominated postcolonial government

44. D. Killingray., W. J. Currey 2010, Fighting for Britain: African Soldiers in the Second World War


Nonetheless, these population movements did not cause any large-scale violent attacks before 1991. Historically, members of Kenya’s forty two ethnic groups have coexisted, traded, and intermarried, often in a symbiotic relationship between pastoralist and agricultural communities. The result was a peaceful coexistence that led to Kenya being branded an island of peace in a sea of turmoil. This settlement pattern would however later be exploited by the government of President Daniel arap Moi in the 1991 and 1997 elections to kill the vote45 in certain regions

by ensuring perceived opposition party supporters were displaced from their homes and therefore disenfranchising them. This would allow KANU to retain control in the regions where it had a significant power base.

Kenya’s political history since Independence was dominated by a single party, the Kenya African Union (KANU), for 39 years following the party’s victory in the 1963 elections; Kenya became a de facto one-party state under President Jomo Kenyatta. Moi took office in 1978 following the death of Kenyatta. In 1982, following a coup attempt, the Moi regime amended the Constitution and subsequently Kenya officially became a one-party state. Police and security forces dispersed demonstrations against this move forcibly. Only after intense internal strife and donor pressure did Moi allow multi-party elections to be held in 1992 and he for the first time faced a formidable challenge at the ballot.

In order to keep power through the ballot, the Moi state manufactured political violence in strategic areas where they could manipulate voting patterns by displacing certain communities perceived to support the opposition parties. While the commonly used term “ethnic clashes” suggests reciprocal conflict based on “tribal” animosity, it belies the overall one-sided source of the violence. The main perpetrators of the violence were in fact to be linked to prominent leaders of the ruling party KANU and though a few revenge attacks occurred, the victims were overwhelmingly members of ethnic groups associated with the 45. ‘Killing the Vote: State-Sponsored Violence and Flawed Elections in Kenya’, Mwangi, Kagwanja. KHRC 1998


new multiparty opposition46. The aggressors were organised groups of youth predominantly from the Kalenjin and Maasai used to further the ruling party and individual interests on the pretext of community or land interests. The year 1997 saw the conflict move to the coastal area of Likoni, where tribes from upcountry were evicted in the same fashion by the local indigenous people.

The victims of these earlier cycles of violence were on one hand the

Kikuyu, Luo, Luhya and the Kamba who were targets of the violence while on the other hand were the organised groups of youths from the Kalenjin, Maasai and Giriama, who were used by politicians to perpetrate the violence. Both the targets and the aggressors were victims in a conflict whose beneficiaries were KANU politicians and the regime of President Moi.

The 2007-2008 elections however took a different turn in the cycle of political violence. While the 1992 and 1997 cycles were perpetrated by the government of President Moi and were concealed, manufactured and packaged as ethnic violence, in 2007, the violence had been diffused and took an ethnic nature where communities rose against each other in attacks and counter-attacks in the areas where opposing political support was present. The ethnic nature of political violence was widespread with victims ranging across different ethnic groups. These victims and the form of justice that they were to receive have created a conflict in the Kenyan state especially with the entry of the ICC as the body that would seek justice in the form of perpetrator accountability.

The ICC had narrowed down to six perpetrators, whom Prosecutor Ocampo had accused of harbouring the greatest responsibility. The List of six that had Henry Kosgey, William Ruto and Joshua Sang on one hand and Uhuru Kenyatta, Francis Muthaura and Hussein Ali on the other hand became a most contentious, polarising and divisive issue since as established it is based on a system of individual retributive

46. A. Malik, Ethnic Parties, Political Coalitions and Electoral Violence: An Analysis of Kenya’s Presidential Elections from 1992 to 2013 Northwestern University June 3, 2014


justice that has failed to appreciate the communal and political context the violence took place in and the need to restore the victims of the violence.

6.0 The ICC Approach; Retributive Justice

Thambo Mbeki and Mahmood Mamdani47 argue that the logic between current approaches of prioritizing perpetrator (individual) responsibility are contrary to actually addressing the underlying political issues that are communitarian in nature. They give the example of CODESA (the Convention for a Democratic South Africa) and the way it brought about a South Africa that addressed its huge problems coming from the apartheid era through negotiations rather than the pursuit of perpetrators of the grave injustices of that infamous era.

The ICC, whose form and substance is largely borrowed from the Nuremburg Trials of World War II, is built for accountability in the exclusive domain of a Western democracy, where the individual accountability of the vanquished took centre stage. The application of The Hague- based ICC on conflicts that do not lend themselves to its construction of individual perpetrator accountability and in contexts whose political organisation, participation, determination, redress and justice are built on completely opposed ideologies creates the huge backlash the ICC is facing in trying to end conflicts through a court system. This conflict has brought about serious ramifications for the Court that has at times threatened its very existence48

This has led to the opposition by African states to the ICC that is built around individual retribution while the context of the conflict and the victims revolves around the regulation of relationships between opposing groups and not the singling out of individuals within these groups for persecution. This regulation of relationships was the hallmark of the

47. The International New York Times, Op-Ed “Courts Can’t End Civil Wars”48. The African National Congress (ANC) party of South Africa has been the latest body to resolve to withdraw its country, South Africa, from the ICC. Other countries, including Kenya’s Parliament, have made resolutions to withdraw entirely from the Court


justice and reconciliation process in post-apartheid South Africa. In Kenya’s cycles of political violence, both injury and restoration should have a collective approach that has to be the basis of addressing the plight of victims.

Central to the kind of justice dispensed at Nuremberg and carried on under the ICC was the widely shared assumption that there would be no need for winners and losers (or perpetrators and victims) to live

together in the aftermath of victory. Yet as always as is the case, both perpetrators and victims live together, sometimes being as close as well-known neighbours who have shared a home for decades. This particular aspect in many ways raises critical issues for post-conflict order where perpetrators and victims have to live together and the manner in which they do will be greatly determined by how the issue of justice will be handled in the immediate aftermath of the conflict.

6.1 The ICC and Victims

The ICC has based its case on pursuing justice for the victims of the 2008 post-election violence. Its actions have however shown that it has been a selective approach to victims. This has resulted in:

a) Manufacturing Victims; as the history enumerated above shows, Kenya has a long list of victims. The ICC chose to concentrate on the 2007-2008 victims but even in this, its selective approach to victimhood is apparent. The Court chose to pursue justice

against certain individuals representing specific ethnic groups and certain events leaving others involved in the conflict outside of its net. At this point, even before the six cases broke down to two, victims had been segregated and some found unworthy of the Court’s justice. In doing this, the Court had started on its selective use and retributive approach while creating new fault lines in the complex web that is Kenyan ethnicity. Justice for the victims in Nairobi, Kisumu, Coast and Western provinces was


never attempted by the ICC.

b) Misuse of Victims; the Court has shown it has little regard for justice through the continued misuse of victims all along the case. While the Court acts in the victims’ names, its pursuit has shown itself to be a selfish errand in self-promotion. Its geopolitical games in seeking to placate its major promoters while serving their interest in the Kenyan case has rendered the victims pawns

in a chequered board game.

c) Making Victims; retributive justice has the indistinct characteristic of turning suspects into victims. This being the ICC’s main approach in its selective approach to justice, it has made a wholesale condemnation of the Kalenjin community, calling them a criminal network. The case is meant to prove that Kalenjin culture, Kalenjin elders, Kalenjin youth, Kalenjin athletes, Kalenjin businessmen and Kalenjin political leaders are all part of a criminal network that was supposedly led by Ruto and Sang. The case predetermines that Ruto and Sang are in The Hague on behalf of a whole community. In having this case proceed, not only Ruto and Sang have been cast as victims but the entire Kalenjin community.

The effect of this is that the ICC is increasingly polarising the country, holding Kenya’s consolidation of peace hostage, fuelling conflict and endangering peace.

7.0 A Final Solution for all Victims of Political Violence; the Case for

Restorative JusticeThis issue of victims and the determination of what we owe them in respect, restitution, restorative justice, vindication of their dignity and the need for closure must be addressed in the context their victimhood arises and not outside in a completely different context with contrary ideological foundations49. The fact that they will also continue to live 49 T. Govier, Victims and Victimhood, Broadview, 2015


with people they consider the perpetrators of their victimhood further necessitates the need for a wholesome solution.

The case for a different kind of justice that is built for the healing, restitution and accountability for this kind of conflict and its victims is needed. Further the need for restoration of victims from previous cycles of violence should be addressed to ensure that Kenya moves forward as one nation. The exclusive emphasis on victims of the 2008 elections

at the expense of the others, no matter the causes of their victimhood, sets aside classes of victims and invariably leads to a classification of victims that perpetuates the notion of exclusivity that haunts Kenyan society.

The ICC has become inimical to the resolution of the 2007-2008 conflict through its separation of prior victims of earlier cycles of violence, excluding the context of their victimhood, sharpening the sense of separation by construction of “select offenders”, “select victims”, “select witnesses” and “select criminal events”, thereby leaving victims disaffected and disjoined from the process and a polarised social order with a growing sense of discord.

In their International New York Times article, Mamdani and Mbeki give an illustration of how a situation where groups involved in prior conflict can find a lasting solution using the post-apartheid experience in South Africa.

“South Africa’s Codesa talks represented a recognition by both sides that their preferred option was no longer within reach: Neither revolution (for the liberation movements) nor military victory (for the regime) was in the cards. Both sides were quick to grasp that if you threaten to put your opponents in the dock, they will have no incentive to engage in reform.

Rather than criminalize or demonize the other side, as was tempting, they sat down to talk. The process was punctuated


with many a bloody confrontation, like the assassination of the popular South African Communist Party leader, Chris Hani, but the eventual outcome decriminalized the alleged perpetrators and incorporated them into the new political order. Yesterday’s mortal enemies became mere adversaries.

Just as the violence in South Africa in the early 1990s was a symptom of deep divisions, the same is true of extreme violence

in today’s Kenya, Congo, Sudan and South Sudan. Nuremberg-style trials cannot heal these divisions. What we need is a political process driven by a firm conviction that there can be no winners and no losers, only survivors50”

In Kenya’s long history of political violence, no one is wholly innocent and no one wholly guilty and the contexts in which this violence happens involve hundreds of thousands of people in a cycle that repeats itself during electoral periods.

To call for justice through the ICC in a conflict like the Kenyan one is to continue holding a whole country hostage to the past without giving opportunity for meaningful closure and restitution to victims and the opportunity for moving into the future. As is the case in the Kenyan cases, the ICC has continued to be a polarising issue that has split the country along new ethnic lines that did not exist before 2008, with tensions rising as the Court digs in51.

The March 2013 elections where previously opposed camps came together in the Jubilee Coalition underpinned by the ICC issue raised new fissures as the ICC and its future was the main campaign issue. The 2013 election was in essence a referendum on the ICC and its involvement 50. The International New York Times Op-Ed “Courts Can’t End Wivil Wars”.51. In September of 2015, a Jubilee Member of Parliament, Moses Kuria, made a confession at a prayer rally for the ICC suspects where he asserted that together with other PNU members, they had cooked up evidence and witnesses against William Ruto and presented it before commissions that were investigating the violence. This allegation became a huge and polarising issue as it drew in members off ODM in a divisive and bitter exchange on who fixed whom. The political tensions arising from this allegation have brought to the forefront fractures that had been slowly healing and has split the country into camps yet again


in the Kenyan case. The anti-ICC camp in the Jubilee Coalition won the election; the ICC however continues to dig into healing wounds. It is this splitting of victim, offender and their community from processes of resolution that continues to further polarise the country and aggravate the situation of victims.

Restorative justice as a process in post conflict situations like Kenya’s tends to be more effective. Restorative justice is concerned with

healing victims’ wounds, restoring offenders to law-abiding lives, and repairing the harm done to interpersonal relationships and the community rather than attempting closure on harm through retribution. American scholar Michael Umbreight explains it in a most succinct way:

“Restorative justice emphasizes the importance of elevating the

role of victims and community members through more active

involvement in the justice process, holding offenders directly

accountable to the people and communities they have violated,

restoring the emotional and material losses of victims, and providing

a range of opportunities for dialogue, negotiation, and problem

solving, whenever possible, which can lead to a greater sense of

community safety, social harmony, and peace for all involved.52

Through restoration victims take an active role in directing the exchange that takes place, as well as defining the responsibilities and obligations of offenders. Offenders are encouraged to understand the harm they have caused their victims and take responsibility for it. Restorative justice aims to strengthen the community and prevent similar harm from happening in the future.53

In order to fully and finally restore the whole gamut of victims in Kenya’s history, the following stages in the process need to be brought about:

52. M. S. Umbreit; R B Coates; B Kalanj, Victim Meets Offender: The Impact Of Restorative Justice and Medi-ation 1994 (Criminal Justice Press)53. J. A. Jenkins’s discussion on “Types of Justice”, in The American Courts: A Procedural Approach (Jones & Bartlett Publishers, 2011)


1. Elevate the Role of Victims; Victims need to be at the centre of any justice initiative undertaken for their sake. The resettlement of victims enters its final phase in October 2015.54 In the accountability sphere however, there remains many issues to be discussed with regards to cycles of violence prior to the 2008 victims and even the 2008 victims are largely spectators and victims a second time at the ICC, where their victimhood is a critical item of a divisive and retributive case that continues to dig deep into their injury

without any considerable restoration being offered.

2. Bring the Community to the Fore; all political violence and victimhood need to be addressed in the community where the victimhood arose. It is critical that Kenya becomes the main stage for the justice process where the victims, offenders, as the setting where the injury arose from. Excluding Kenya from the context undermines a critical part of the justice process since neither victim nor offender can properly come to terms with any processes currently underway.

3. Hold Offenders Liable to the People They Violated; Victims and offenders need to meet face to face to address their history for a true resolution of conflict, wrongs, injury and victimhood.

4. Restore Emotional and Material Losses of Victims; as the resettlement of all historical victims of displacement continues,55 the emotional and psychological restoration of victims needs to be addressed. Through the earlier stated stages of offenders being held liable in front of the victims and in the place their victimhood arises, the process of emotional restoration begins and should close with the country moving forward as one.

5. Opportunities for Dialogue; the need for dialogue, negotiation

54. Daily Nation (Nairobi), October 12, 201555. ibid


and problem solving that is required to resolve this historical burden is huge. A platform for this dialogue that can facilitate the type of processes, information sharing, community involvement and conflict resolution a conventional court process cannot provide is necessary for the closure required.

Victims of political violence in Kenya have continued to be frustrated and alienated from the process of finding justice for them, many have

entirely been forgotten with no input while all of them have no standing in the current case at the ICC. To bring them to the centre a restorative justice approach with the five critical steps above should be brought into play to address their plight.

The most definitive way of doing this is through the establishment of a truth and reconciliation commission. Mark Freeman has defined a truth commission as

“An ad hoc, autonomous, and victim-centered commission of inquiry set up in and authorized by a state for the primary purposes of (1) investigating and reporting on the principal causes and consequences of broad and relatively recent patterns of severe violence or repression that occurred in the state during determinate periods of abusive rule or conflict, and (2) making recommendations for their redress and future prevention”.56

The established truth commission should in the least:57

1. Be a temporary officially sanctioned body; the Government would need to officially unveil a body with the specific mandate of political violence and any patterns that may present themselves. A high profile commission independent of other state organs and politics tasked with a the investigation is the appropriate kind of body to seek resolution.

56. Freeman, M. (2006), Truth Commissions and Procedural Fairness (1st ed.), New York: Cambridge Univer-sity Press57. Peace and Conflict Review, Volume 3 Issue 2 2009, Page 4


2. Investigate the history of violence; A truth commission in Kenya would need to take a historical perspective of political violence and victimhood. By having victims as its centre, it would seek to establish them within the context of the resolution of their victimhood even as it seeks to hold the offender liable while seeking to reintegrate them into the community that was raptured by the violence.

3. Provide a report of recommendations; after conducting its investigation, the commission should provide a report with extensive statements made at public hearings58 and have transitional justice and reconciliation as its ultimate goal.59

8.0 Conclusions

While Kenya has had a Truth, Justice and Reconciliation Commission whose 2013 report60 was controversial from the beginning and has largely been contested, the country needs to find a way of bringing out the victims’ history in its own exclusive context61.

In his 2015 State of the Nation Address before Parliament, President Uhuru Kenyatta noted the need for a restorative justice mechanism for resolving Kenya’s history of injustices. In the speech, the President states:

“We must indeed recall our options are not limited to retributive justice. There also exists the promise of restorative justice. In many ways, Kenyans and humanity overall, have benefited from restorative justice, an approach that is deeply rooted in our cultural and historical realities, particularly when such conflicts have a communal and political dimension. Many

58. This is as recommended by the United Nations High Commissioner for Human Rights 59. Bronkhorst, D. (1995), Truth and Reconciliation, Obstacles and Opportunities for Human Rights, Amster-dam: Amnesty International Dutch Section60. http://www.acordinternational.org/silo/files/kenya-tjrc-summary-report-aug-2013.pdf61. International Commission for Transitional Justice Report available at www.ictj.org/sites/default/files/ICTJ-Briefing-Kenya-TJRC-2014.pdf


thousands of Kenyans have reached out to reconcile with one another. My administration was forged from this reconciliation, and is building on the efforts of the last government to advance resettlement, reconciliation and relief to internally displaced people. I am committed to continuing these efforts as necessary. Notwithstanding the recommendation of the TJRC report, I have instructed the Treasury to establish a Fund of 10 billion shillings over the next three years to be used for restorative justice.”

In light of this new framework, the Kenyan Government should build a truth and reconciliation commission within the restorative justice approach that has been built in this report. Only then can we decisively say that we have recognised the plight of the victims within our community, acknowledged the causes of their injury and victimhood, encouraged offenders to reintegrate into the community and promote a healing process while recognizing the community’s responsibility for the conditions that contribute to the cycles of political violence.




