Transitional Justice and Peacebuilding on the Ground: Victims and Ex-Combatants (Law, Conflict and International Relations) (56 page)

81
 
Décimo Cuarto Informe Trimestral de la MAPP OEA
(28 April 2010).

82
 CNRR, “Disidentes, Rearmados y Emergentes: Bandas Criminales o Tercera Generación Paramilitar?” (Área de DDR, CNRR, Bogotá 2007).

83
 Ibid., p. 58.

84
 CNRR, “La Reintegración. Logros en Medio de Reames y Dificultades no Resueltas” (Área de DDR, CNRR, Bogotá, 2010).

85
 Ibid., p. 145.

86
 CODHES, “Líderes y Personas en Situación de Desplazamiento Asesinadas del 1 de Marzo 2002 a Marzo 23 2011” (Bogotá, 2010), available at <
www.codhes.org/images/stories/pdf/cld%20asesinados%20marzo%2025%202011.pdf
>.

87
 Constitutional Court, Comunicado No. 59 (23 November 2010).

88
 MAPP-OEA, “OEA Celebra Radicación de Proyecto de Ley que Favorece la Justicia Transicional y Da Sostenibilidad al Proceso de Reintegración,”
Comunicado
, 30 November 2010, available at <
www.es.emailbrain.com/new/viewnewsletter2.aspx?SiteID=19053&sid=34&NewsletterID=171102
>; Law 1424 of 2010,
Por la cual se dictan disposiciones de justicia transicional que garanticen verdad, justicia y reparación a las víctimas de desmovilizados de grupos organizados al margen de la ley, se conceden bene
fi
cios jurídico y se dictan otras disposiciones
, CRC.

13
The National Accord, Impunity, and the Fragile Peace in Kenya

Stephen Brown

Introduction

Kenya’s presidential elections on 27 December 2007 ended in a photo-finish. Amidst a very tense atmosphere and after 24 hours of counting and tabulations
in camera
, the Electoral Commission declared on 30 December that incumbent president Mwai Kibaki was the victor. At the eleventh hour, Raila Odinga, his main rival, lost the significant lead he had held in most opinion polls during the campaign and in the partial returns during the counting process.
¹
Odinga and supporters of his party, the Orange Democratic Movement (ODM), cried foul and refused to accept the results. Demonstrations quickly sprung up in ODM strongholds, especially in Nyanza province, home to Odinga and the majority of his fellow Luo.
²

In the days that followed, ODM supporters in Nyanza and Rift Valley provinces, as well as in Nairobi, perpetrated attacks, sometimes deadly, on Kikuyu and members of other ethnic groups that generally supported Kibaki and his Party of National Unity (PNU). Members of the Kikuyu and allied ethnicities responded with similarly violent reprisals against Luo, Kalenjin, and others assumed to support the ODM. The police, during this period, used lethal violence against peaceful demonstrators and are widely believed to have received shoot-to-kill orders from the highest level.
³

The violence spread and caused at least 1,100 deaths, while displacing 500,000 or more Kenyans from their home, land, and businesses. It ended two months after the elections, when Kibaki and Odinga signed a power-sharing agreement, known as the National Accord. More broadly, the National Dialogue and Reconciliation process set in motion the creation of a series of institutions and activities that would, it was hoped, document what had happened and prevent future outbreaks of large-scale violence. These included a number of mechanisms that fall under the rubric of transitional justice, such as establishing a record on the institutional failures that occurred in the election process and appropriate measures to strengthen the Electoral Commission, determining the causes of the post-election violence and suggesting means to prevent its recurrence, obtaining accountability for the crimes committed, and promoting reconciliation.

This was not Kenya’s first experience of large-scale political violence. In fact, immediately before and after the 1992 and 1997 general elections, a similar total
number of people were killed and displaced. Those “ethnic clashes” in the 1990s, as they are usually called, were mainly instances of state-induced violence against members of ethnic groups who generally supported multi-partyism and challengers to the rule of authoritarian president Daniel arap Moi, but lived in zones dominated by Moi’s party, the Kenya African National Union (KANU). The latter had ruled the country from independence in 1963 until Kibaki’s election in 2002, after Moi retired. Despite systematic and credible documentation on which senior officials incited, organized, and financed the violence in the 1990s, the government never charged any of them. Thus, prior to the 2007–08 election violence, a history of complete impunity prevailed.

Although I use the term “transitional justice” in order to highlight links between processes discussed in this study and in the others in this volume, as well as in the broader literature, Kenya is not a typical example. For one, the transition to a new political order is only partial, lacking the solid break with the past that has occurred in such places as Bosnia and Herzegovina or Sierra Leone, both discussed in this volume. The former single party that had ruled Kenya since independence is no longer in power, but many of its officials—some of whom played an important role in many gross human rights violations in the past—still sit in Parliament and Cabinet. For that reason, it would be more accurate to refer to “post-conflict” or “post-atrocity” justice than transitional justice. I also discuss peace and peacebuilding in a somewhat different way from most, since Kenya experienced only intermittent violent conflict and no civil war, unlike the other countries analyzed in this book. The agreement signed to end the violence is not a typical peace agreement, though it contains many common elements, such as provisions for temporary governance structures, including power sharing, and new institutions. As no formal military combatants were involved, there has, however, been no discussion of disarmament, demobilization, and reintegration (DDR) in Kenya—though, as I shall argue, the continued existence of armed militias poses a serious threat to future stability.

This chapter assesses the performance to date of the National Dialogue and Reconciliation mechanisms of 2008 and how well they can be expected to function in the near future. In particular, it examines the contributions of the National Dialogue and Reconciliation process to transitional justice and peacebuilding in the Kenyan context—and the relationship between justice and peace. Goals discussed include holding perpetrators accountable, attending to victims’ needs and the restitution of the assets they lost, establishing a broadly accepted account of what had occurred and why, and preventing recurrence. It draws on fieldwork conducted in Nairobi in December 2008 and January 2010, during which time I interviewed officials from embassies, aid missions, international organizations, Kenyan civil society organizations, and the government. Important local initiatives across the country, such as district peace committees, and reconciliation at the interpersonal level, unfortunately lie beyond the scope of this study.
⁴

I argue that, though the agreements ended the widespread violence, it would be premature to assert that they re-established “positive peace,” i.e. based on good inter-group relations, rather than merely a “negative peace,” with a
potentially fragile absence of generalized inter-group violence. While a few of the transitional justice mechanisms have attained some of their particular goals, the majority have not. As a result of the lacunae in transitional justice, perpetrators go unpunished (with the possible exception of a handful of individuals whom the International Criminal Court will try) and victims’ needs are generally ignored (resulting in the general absence of victim-centered approaches to peacebuilding). Paradoxically, the lack of implementation and sometimes active sabotage of key initiatives included in crucial National Accord–related initiatives have helped keep the peace agreement in place. Powerful PNU and ODM political elites have joined forces to prevent, as best they can, measures that are not in their shared interest, notably accountability for the crimes committed—since several high-placed officials of both parties are alleged to be among those who bear the greatest responsibility for planning and financing the violence. The debates on the concrete trade-offs between or complementarity of transitional justice and peace-building apply with difficulty to Kenya: several years after the Accord was signed, it has produced no justice and only a tenuous peace.

The remainder of this chapter is organized as follows: first, I examine the concrete measures agreed to in the National Dialogue and Reconciliation process and the direct institutional outcomes, namely the appointment of several commissions and the adoption of a new constitution. Second, I analyze the indirect institutional outcomes, with a focus on the efforts to set up a special hybrid tribunal and the involvement of the International Criminal Court. Third, I examine key National Accord issues that remain insufficiently addressed or left off the agenda. The conclusion attempts to tease out the complex relationship between transitional justice and peacebuilding in Kenya and what lessons it might suggest for other countries.

Kenya’s Peace Agreement: The Kenya National Dialogue and Reconciliation Process

The international community responded rapidly to the post-election crisis in Kenya. The African Union appointed a Panel of Eminent African Personalities to mediate talks between the PNU and ODM, headed by former UN Secretary-General KofiAnnan and strongly supported by Western aid donors.
⁵
Early in the process, the two sides agreed on a four-point agenda: 1) ending the violence and restoring fundamental rights and liberties; 2) addressing the humanitarian crisis, as well as promoting reconciliation, healing, and restoration; 3) overcoming the political crisis; and 4) working on long-term issues and solutions.
⁶
The National Dialogue and Reconciliation process, as it became known, produced a series of joint ODM and PNU statements and agreements between February and May 2008. The foremost of these was the National Accord and Reconciliation Act, signed by Kibaki and Odinga on 28 February 2008, which instituted a power-sharing coalition government and basically ended the ongoing violence—thus resolving agenda items 1 and 3. The various agreements led to a number of other concrete measures, with both direct and indirect results, but also some significant gaps, all examined below.

Direct Institutional Outcomes

The agreements led directly to the creation of a number of commissions and other institutional reforms, including constitutional and electoral.

Commission of Inquiry Into the Post-Election Violence

One of the most important commissions that the National Dialogue created was the Commission of Inquiry into the Post-Election Violence (CIPEV), also known as the Waki Commission, named after its chair, Kenyan Justice Philip Waki.
⁷
In June 2008, the chair and the other two CIPEV Commissioners, a human rights lawyer from the Democratic Republic of Congo and a senior police official from New Zealand, were sworn in. The appointment of international members was designed to enhance the commission’s impartiality and legitimacy.

The Waki Report is an invaluable account of the violent acts that took place across the country in the two months that followed the December 2007 elections. Released in October 2008, it documents a broad range of atrocities and determined that the three sets of actors—ODM supporters and PNU supporters, as well as the police—shared responsibility for about one-third of the deaths each.
⁸
The data from the report not only helped establish a credible account of the nature of the violence, they also provided powerful evidence against self-serving and divisive claims that one “side” was responsible for the majority of the violence or that the majority of victims were from one particular ethnic group.

A key recommendation of the Waki Commission was the creation of a Special Tribunal for Kenya, a hybrid national/international tribunal discussed below, that would prosecute a hundred or perhaps several hundred suspected perpetrators. To help ensure that the coalition government followed up on its promise to implement the recommendation, the commission gave it 105 days from the report’s publication date to create the tribunal. To avoid the report being ignored, a common fate of such documents in Kenya, the commissioners included a “Trojan horse” that vastly improved the odds of implementation.
⁹
Justice Waki sent KofiAnnan a sealed envelope that contained a list of names of people whom the commission believed to bear the greatest responsibility for organizing and financing the violence, accompanied by multiple boxes of evidence. Were the coalition government to fail to set up a credible tribunal by the deadline, 30 January 2009, KofiAnnan was to forward the documents to the prosecutor of the International Criminal Court (ICC), Luis Moreno-Ocampo, and request that he seek to open an investigation.
¹⁰
The results of this initiative are discussed below, under the rubric of indirect outcomes.

Truth, Justice and Reconciliation Commission

The idea of a truth commission was resurrected during the National Dialogue and Reconciliation process. The Kibaki government had in fact previously considered setting up a truth commission after it first came to power in January 2003.
Soon after, it appointed a task force on the issue, but then ignored its recommendations for setting up a truth commission.
¹¹
Though the actual reason is unknown, a plausible explanation is that the Kibaki government was in fact a loose and last-minute alliance of parties and powerful individuals (National Rainbow Coalition, NARC) that had joined together shortly before the December 2002 general elections to defeat KANU, the incumbent party, and its presidential candidate, Uhuru Kenyatta. NARC included in its ranks a number of high-level former KANU politicians who themselves are widely believed to be deeply involved in many of the abuses during the rule of Daniel arap Moi (1978–2002), including massive corruption schemes and the organization and financing of widespread state-induced violence against opposition supporters in the 1990s, mentioned above. The Kibaki government relied on those individuals and their followers to govern and therefore had a strong incentive against investigating and prosecuting the main perpetrators—that is an important reason why one cannot say that Kenya has had a meaningful break with the past.