Category Archives: International Criminal Court

“KONY2012”: Bigger than “Out of Africa”, and probably better

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More than a week ago I promised my daughter a post about KONY2012.  Seeing as how I changed her life by moving her to Kenya for the seventh grade four years ago I allowed that this was a reasonable request, and agreed to do my best (even though I was inclined to not to write on the subject otherwise).

In the meantime, I agreed to lead a Sunday School discussion about the video for this morning, so I had to work through how to address the complexity of issues in a very brief overview for a general audience of my contemporaries who are not “East Africa junkies” who would read this blog, but who came to the issue initially primarily as parents of children impacted by an unusual and interesting cultural phenomenon in the form of this video that “went viral” in an unprecedented way.

From a Sunday School perspective, we talked briefly after watching the video about our responsibilities to be aware of things going on with “our neighbors” in the world and finding effective ways to respond. We were struck by the notion that our children were being reached and moved, and in some cases perhaps manipulated in different ways with Facebook and YouTube, etc. as opposed to what we grew up with. We touched on the issues about lobbying for a specific military response to a unique situation involving several countries. And we certainly recognized and appreciated the talent applied to making a video that had us all thinking and talking about Uganda and the DRC, Sudan and South Sudan and the Central African Republic.

Recognizing the video as aimed primarily at an American audience with ancillary worldwide distribution in our spontaneously globalized communication sphere may help to see this in a different way that I think might be constructive. It’s a viewpoint that I eventually stumbled into after reading a lot of Ugandan, aid-focused, “Africanist,” marketing, tech and media commentary–much of which is important and useful, but left me unsatisfied as well.

If we look at this as a Southern California American film about East Africa, and compare it to Out of Africa, The Constant Gardener and The Last King of Scotland, maybe we can appreciate the genius of the use of the medium in a way that has captivated so many millions of people, a way that is a little more current, and aspires to accomplish something more.

Of the cultural events in the United States in my lifetime that have some real connection to East Africa, “Obama2008” is surely the biggest, but “KONY2012” has eclipsed the big one from back in my day, the 1985 Sydney Pollack film Out of Africa starring Robert Redford and Meryl Streep. Romanticized nostalgia for a whitewashed version of European colonialism in Kenya with two of Hollywood’s biggest and most appealing stars had some real influence, and still does to this day. The image is good for American tourism to Kenya–so from a “chamber of commerce” viewpoint this has been in a way positive–there is money to be made from this nostalgia.   But it was probably a setback toward getting Americans to grant full agency to black Kenyans and indirectly contributed to the depersonalization that facilitated our support for the “one party state” of Moi, continuing right up through the problem of Kenya’s “Invisible Voters” in the 2007 election.

For Americans of a certain age,Out of Africa is right there along with Born Free and Mutual of Omaha’s Wild Kingdom in our images of East Africa.  Robert Redford alongside Ernest Hemingway.  By the mid-80s we had started to really settle on heroic images for the leadership of the civil rights movement in the United States–if Hollywood had produced a blockbuster about the Kenyan democracy movement instead of a European story set in colonial fields, some of us might have been inspired rather than just charmed and entertained.

In The Constant Gardener, a more fictionalized but topical LeCarre story, we have flawed but sensitive and aware white Europeans trying to fight the evil designs of their fellow outsiders in Kenya and the region. We even see Kibera and dance the dance and feel the vibe. But of course it is all doomed to failure.  None of that naive “new world” hope here, thank you.

In The Last King of Scotland, we move to Uganda, so in a sense we are getting warmer, and invent a white character to interact with the snippets of past history of African debauchery because that’s easier than imagining a Ugandan who could really tell us about all this, and in whom we will be as interested.

KONY2012 comes in at slightly under 30 minutes, so its quite a bit shorter than these full length feature films. But it’s more ambitious and packs a punch. It has been seen by millions and motivated thousands of those to actually read and learn something about Uganda and bordering countries today. It addresses a strange situation in which Congress passed legislation and the administration has sent U.S. troops to chase a foreign “warlord”. Most Americans were apparently completely unaware that this had even happened, and millions more now know. Sure, the video is going to strike Ugandans as patronizing (I live in Mississippi, so I know about being patronized, and how tiresome it can be, as well as the pain of an image that accentuates the worst and the past rather than the present and ignores the trajectory), but in the context of “Hollywood” film, KONY2012 can also been seen as representing some significant generational progress. We are only 18 years after apartheid and 27 years after Out of Africa. The filmmakers themselves may not be master strategists of conflict resolution and criminal justice, international relations and aid effectiveness–but there is surely here some authentic spark of passion that does recognize a common humanity with the victims of violence that when shared seems to be something more hopeful.  Something that this upcoming generation can chose to be inspired by and make use of.

And do check out the LRA Crisis Tracker alongside this academic article, “Culture, Cultivation and Colonialism in Out of Africa and Beyond.”

A third year has gone by since the murders of Kenyan civil rights activists Oscar Kingara and J.P. Oulu

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From March 2011::Five Years After the Kenyan Government’s Raid on the Standard and Two Years After the Oscar Foundation Murders, Impunity Reigns and a “Local Tribunal” for Post Election Violence Remains a Pipe Dream

As I have previously written, I have to miss the frenzy of reading the Wikileaks diplomatic correspondence, but the Kenyan newspapers are full of articles related to a few of the cables newly leaked.  Much of this is Kenyan politicians dishing on each other to curry favor at the U.S. Embassy, and probably in some cases news to Kenyan voters who don’t have the same access to their leaders as Americans do.

One of the main impacts of the leaks in Kenya, that I would not necessarily have realized, is the degree to which the well-publicized cables give the Kenyan media cover to report facts that are quite well known but that they would not otherwise dare print for fear of libel suits and official displeasure.  Certainly much of what Kenyan politicos tell the Embassy they will have told reporters, or reporters will have learned independently, but couldn’t report until the State Department’s internal “news bureau” was stolen and partially put out on the internet.

Some of the material dates back to the Government’s raid on the Standard media house on March 2, 2006.  Enough of this outrageous incident (really series of incidents) has long been well known that in any country with leadership at all serious about press freedom and the rule of law there would be some people in jail.  Nonetheless, total impunity for each and every player in all of the multiple criminal acts remains the status quo.  While U.S. Ambassador Bellamy was sharply critical at the time, there is no indication that this has been on the public diplomacy agenda since.

It is in this context that observers of the Kenyan scene have to realize that the notion of a Kenyan “Local Tribunal” that would try the kingpins of the Post Election Violence identified by the Waki Commission report was always a pipe dream.

We have a recent report on the killing of former Foreign Minister Ouko, said to have taken place at State House in Nakuru–no action.  We have the circumstances crying out for investigation in the murders of civil rights activists Oscar Kingara and J.P. Oulo–two years have gone by today with no action.

While I agree completely with the notion that as a wholly conceptual matter, a Kenyan tribunal rather than the International Criminal Court would be the best place to try the suspects for the Post Election Violence, it is also quite clear that that was never going to happen.  The will is simply not there–the Government of Kenya has a well established policy of impunity which has served the interests at stake very successfully for many years.  It will not change of its own accord, or through simple persuasion or jawboning.  A “Local Tribunal” in Kenya, if there ever were such a thing, would be a platform for deal making to preserve impunity, not a court of law.  Because the United States is not a member of the ICC, it may well be that we are not so credible as leading advocates of the ICC as the appropriate venue for the election-related trials–nonetheless, I think we should stop indulging political frivolity in the context of these grave crimes.

Related Post on local tribunal.

Early handicapping in Kenya’s presidential campaign

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David Throup, in a commentary up on the Center for Strategic and International Studies website, handicaps the impact of the ICC charges on the Kenyan presidential campaign.  In a nutshell, Throup posits that Raila gets elected easily if Uhuru and Ruto are allowed to stay in the race as Uhuru is not popular enough, broadly enough to pose a strong challenge.  If Uhuru and Ruto are disqualified, this would allow Saitoti to come to the fore as the establishment (non-reformist) alternative and that Saitoti could give Raila a run for his money, so to speak.

Will the decisions of the ICC and the Kenyan court make any difference to the election battle? Perhaps, but not in the way that many people think. The banning of Kenyatta and Ruto is more likely to work against Raila Odinga, current prime minister and election frontrunner, than to weaken his opposition. It is becoming increasingly evident that Kenyatta is unelectable. .  .  .

Ruto may personally be willing to endorse Kenyatta—after all he was his presidential campaign manager in 2002, and relations between the two men remain good—but Kalenjin community elders are unlikely to agree, especially as the Kikuyu and Kalenjin fight over the political spoils in the new Nakuru County, a major center of violence in 2007–2008. Local Kikuyu leaders are demanding almost complete control, precluding any agreement between the communities. As a result, at least two-thirds of Kalenjin voters will end up supporting Odinga in the second round, whatever Ruto says.

.  .  .  .

On this calculation, the winner of the presidential election seems likely to be Prime Minister Odinga, who since he first contested the presidency in 1997 has built up a broad coalition, centered on his Luo ethnic group. Odinga commands the support of 40 to 45 percent of voters, stretching from Lake Victoria to the Indian Ocean and from the isolated Somali-populated Northeastern Province to bustling Nairobi. He is the frontrunner, and neither Kenyatta nor Ruto is capable of effectively challenging his momentum.

.  .  .  .

If Kenyatta is banned from contesting the presidency, Saitoti seems likely to emerge as the frontrunner to take over the mantle of Kikuyu candidate. His 20 years in Moi’s government, moreover, means that he has good relations with many Kalenjin leaders, stretching far beyond the former president’s inner circle. Thus, Saitoti could bring together the Gikuyu-Embu-Meru and the Kalenjin-Maasai-Turkana-Samburu in a formidable challenge to Odinga. An Odinga-Saitoti contest would be a closely fought two-horse race, and it is difficult to predict who might emerge victorious. Odinga would present himself as the candidate of reform, while Saitoti would clearly represent the old order.

Saitoti’s profile is certainly raised by the war Kenyan troops are fighting in Somalia while he serves as Minister of Internal Security.  Certainly this Ministry played a key role in the 2007 election campaign and the immediate aftermath.

It’s interesting to reflect back on Saitoti’s appointment by Kibaki along with Kalonzo Musyoka and the rest of the “half cabinet” during the post election violence.  Here is Xan Rice in The Guardian, January 8, 2008 “Fury as Kenyan leader names ministers”:

“This is simply another attempt to undermine the mission of John Kufuor,” the opposition leader’s spokesman, Salim Lone, said. “It’s not only a blow to the peace process, it shows that Kibaki is has no intention of even starting the process.”

Analysts agreed. Mutahi Ngunyi, a political scientist, said the move was in “bad faith”. “He has already concluded peace talks before they have begun,” he added.

Mwalimu Mati, a civil society leader, said the appointments – especially that of the internal security minister, George Saitoti, who is deeply unpopular in Kenya and was forced to resign a cabinet post in 2006 over links to the country’s biggest-ever corruption scandal, was “like raising a red flag to a bull – and the bull is going to charge”.

However, Amos Kimunya, a key Kibaki ally who was reappointed as the finance minister, denied the move would further alienate the opposition.

“The critical ministries of the government have to run,” he told the Guardian. “Other players can join the government at a later stage, and the president can change his mind on his ministers any time.”

Related articles

Time to move on a decision on Uhuru and Ruto eligibility to run for president . . .

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The slow grind of the cumbersome ICC process has finally reached the point now, four years after the post-election violence, that charges should be “confirmed” against Uhuru Kenyatta and William Ruto. And of course the suspects have appealed this preliminary step in the march toward a possible trial as early as sometime in 2013. In the meantime Uhuru and Ruto are offering themselves to save the country from a Raila Odinga presidency in the latest campaign which is already the primary focus of the political elite with an election date that can be expected to take place before the accused finally face trial for “crimes against humanity”.

Kenya’s judicial branch should address and answer in short order the question of whether or not those facing “confirmed” ICC charges of “crimes against humanity” are eligible to run for, and be elected and sworn in as, President of Kenya prior to being convicted. The suspects will be campaigning in the meantime, and the longer it goes on the more dangerous it becomes–and if there is to be no relief from the Kenyan courts, Kenyans deserve to know now rather than later.

Muthoni Wanyeki explains in the East African why Uhuru and Ruto must not be allowed to run for the presidency:

Kenyans are tired of being thrown the sops of reforms (even reforms we desperately wanted) in lieu of individual, personal responsibility for wrongdoing by politicians and public officers. We’ve had enough.

The relative good behaviour we’ve seen from the suspects since the ICC’s intervention is a testament to this fact. Accountability works. The fear of consequence works.

So we must insist that, pending a determination of innocence, they not be allowed to vie for elective office either.

The Sunday Nation has the latest from the campaign trail:

The impending trial of four Kenyans at the International Criminal Court is likely to be a pivotal issue in the next General Election with two of the accused already showing their intention to turn it into a referendum on the trials.

At the rallies they addressed in Eldoret on Friday and in Kiambu on Saturday, Deputy Prime Minister Uhuru Kenyatta and Eldoret North MP William Ruto painted the race to succeed President Kibaki as a battle to stop Prime Minister Raila Odinga from ascending to the presidency.

That emotive pitch to their supporters in their respective backyards is likely to provide the key story line of the succession battle in the months to come.

Mr Kenyatta and Mr Ruto, who have both said they will be running for president, are in a loose alliance of politicians identified with their opposition to Mr Odinga.

However, they have yet to find a formula to pick one candidate to run against the PM.

The duo have consistently attempted to cast the PM as having something to do with the trials, although they have not provided proof for their claims. (READ: Uhuru blames violence on Raila)

Political analyst Karuti Kanyinga warns that such mobilisation could easily take the country back to the dark days of 2007.

Prof Kanyinga points out that the efforts by politicians to use the International Criminal Court (ICC) as an election issue threatens stability.

“The continuing mobilisation of communities and grouping of leaders along ethnic lines is a stark reminder that this can easily push the country to the precipice,” he says.

“The offhand attitude of the leaders towards the ICC ruling and a similarly cavalier attitude to the new Constitution and its institutions are likely to fail the country yet again.”

On Saturday, a group of ODM MPs defended the Prime Minister against attacks by MPs allied to Mr Kenyatta and Mr Ruto.

Assistant minister Alfred Khangati said these individuals were being dishonest because most of them had supported the ICC process in Parliament.

“They were loud in saying let’s go to The Hague and now they are accusing Mr Odinga of scheming for the downfall of some of those whose charges have been confirmed by the court,” Mr Khangati said during the burial of Paul Luyali Khaniri, brother to assistant minister George Khaniri at Kapsotik in Vihiga. . . .

Here is an assessment of the legal and political dynamics of determining the candidate eligibility question from The African.org Blog of the Institute for Strategic Studies:

At the moment, the mood of Kenyans about their suitability or eligibility for presidency are mixed. Whilst a section of Kenyans argue that they can contest, a good section of people hold the view that the named presidential hopefuls need not even attempt it because the ruling questions their integrity for the post of presidency. The possibility of a legal battle ensuing is thus very high in the event of any attempt to bar them from contesting in the next elections and would require legal and academic brains to scrutinise all the laws of the land in search of legislation that may bar or exonerate the two. Already there are on-going debates about the section of the new constitution that may hold the key to prevent them from vying for presidency. Within the growing debate, chapter six of the new constitution has been prominently quoted in this regard.

The chapter provides for leadership, integrity and specifically requires state officers to bring “honour to the nation and dignity to the office”, and to “promote public confidence in the integrity of the office.” It also outlines the guiding principles of leadership and integrity to include “personal integrity, competence and suitability.” Within the interpretation of this provision, the real contention may emerge around the definition of integrity and its immediate relevance to the context of the ICC. A section of Kenyans have already begun arguing that the provision for integrity relates to economic crimes and not cases such as the ICC thus preparing the ground for what appears to be an emerging heated debate. Another key issue, which will need to be resolved, relates to whether confirmation of charges necessarily constitutes guilt against the backdrop that in reading out the ruling, Judge Trendafilova emphasised that the burden of prove of guilt lies on the prosecutor should the trial commence.

In the event of a court ruling barring or permitting the two to contest the presidency, the emerging culture of constitutionalism and rule of law will be certainly tested as well. Already, the respect surrounding the High Court ruling on the date for the next election has raised hopes about the rule of law, respect for the supremacy of the new constitution, and the independence of the emerging structures of the state. If a court decision bars the two from contesting in the presidency and all avenues for redress get fully utilised, they may probably take the matter to the “courts” of public opinion which may end up securitizing the sensitivities surrounding the loyalty of people them. However, given the stern warning by the Judge during the ruling against inciting people, their leverage in exploiting the passions of ardent supporters is dealt a huge blow.

ICC Confirms Charges Against Four (Ruto, Sang, Kenyatta, Muthaura)–Drops Cases Against Two (Kosgey, Ali)

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The 4 and 2 split is consistent with speculation I was hearing last fall at the African Studies Association, but not necessarily with the right defendants confirmed. or dismissed.

It will be very interesting to see how various elements of the Government of Kenya react to this. The Government sought to get the reference withdrawn in the cases and lobbied hard against the cases in the Security Council. Now that the hope of early dismissal has been dashed, the Government will be in a bind, especially with Finance Minister “in the dock”.

Court notes that presumption of innocence continues to apply, but that liberty of the suspects pre-trial is dependent on refraining from incitement and hate speech.

Another 2-1 ruling with a dissenting opinion forthcoming.

Here is the Court’s Summary as released.

Kenya Awaits ICC Rulings; Calls Continue for New Charges on Kibera and Kisumu and for Local Tribunals

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The International Criminal Court is widely expected to announce rulings by its Pre-Trial Panel in the cases against the “Ocampo Six” during the third week in January.  Today’s Standard details the various options available to the Panel:

The ICC could commit all or some of the six to trial, or decline to confirm the charges if it determines that there is insufficient evidence.

It could also opt to adjourn the hearing and request the Prosecutor to consider either providing further evidence or conducting further investigations, or amending a charge because the evidence submitted appears to establish a different crime within the jurisdiction of the Court.

Once the charges have been confirmed, the Presidency of the court shall constitute a Trial Chamber.

. . . .

Ruto and Kosgey are charged with being indirect co-perpetrators of murder, forcible transfer of populations and persecution. The court ruled that there was not enough evidence that Sang was an indirect co-perpetrator in the crimes, but accused him contributing to the same set of crimes. . . .

Uhuru and Muthaura are accused of being co-perpetrators of murder under Articles 7(l)(a)), forcible transfer of persons, rape, persecution and other inhumane acts while Ali is accused of contributing to their commission.

In an article yesterday, the Institute on War and Peace Reporting discusses the calls for renewed attempts to prosecute cases on the violence in Kibera and Kisumu:

Rights activists say international indictments in cases arising from post-election violence in Kenya in 2007-08 must be expanded to cover killings and other abuses committed by police in a Nairobi neighbourhood and the city of Kisumu.

Judges at the International Criminal Court, ICC, removed the two elements when they considered the prosecutor’s application for charges in March, saying there was insufficient evidence to pin them to the individuals accused.

Lawyers say the failure to charge three of the six suspects with the shootings means the victims of violence in Kibera and Kisumu feel left out of the justice process.

Kibera, a slum area of Nairobi, and Kisumu in western Kenya experienced some of the most brutal attacks in the violence that followed a December 2007 presidential election. The Commission of Inquiry into the Post-Election Violence, set up in February 2008 to investigate the violence, found that overall, the police killed 405 of a total of 1,100 people who died during the violence, and injured a further 557. The vast majority of killings by police are thought to have occurred in Kibera and Kisumu.

When he formulated charges against six senior figures accused of responsibility for the violence, ICC prosecutor Luis Moreno-Ocampo accused a group of three of them, who fall into one of the two cases he brought, of being behind the Kibera and Kisumu attacks.

. . . .

When ICC judges issued their ruling on Moreno-Ocampo’s application for charges on March 8, they found insufficient evidence had been presented to link the three PNU suspects to events in Kibera and Kisumu.

The judges said there were reasonable grounds to believe that Kenyan police shot and killed more than 60 people in Kisumu, and that police killed and raped civilians in Kibera. However, they took the view that the prosecutor had failed to demonstrate that crimes in Kibera and Kisumu were part of a wider state policy, so that they would fall within the court’s jurisdiction.

“The material presented by the prosecutor does not provide reasonable grounds to believe that the events which took place in Kisumu and/or in Kibera can be attributed to Muthaura, Kenyatta and/or Ali under any mode of liability,” the judges said in their ruling.

The judges’ ruling provoked outrage among victims and raised questions about the scope of the justice process, given the omission of two key focal points of the violence.

“[Nairobi] experienced a lot of violence and Kibera was the epicentre of it,” Priscilla Nyokabi, executive director of the legal aid centre Kituo Cha Sheria in Nairobi, said. “It will be so bad if Kibera is not made to feel a sense of justice.”

According to Godfrey Musila, an expert on international law based in Nairobi, “Ideally, charges brought by the prosecutor should reflect patterns of the violence. It undermines the court when the perception around is that the epicentres of the violations are out of the scope of the cases.”

Rights activists and legal experts are urging the ICC prosecutor to renew his request for judges to include Kibera and Kisumu in the charges against Muthaura, Kenyatta and Ali.

Moreno-Ocampo told IWPR in early December that he was gathering additional evidence on crimes committed in Kibera and Kisumu, but that he would not decide whether to ask for these charges to be added to the case until ICC judges had assessed his evidence of other crimes.

And Human Rights Watch’s “Turning Pebbles” report last month on accountability for post election violence called on Kenya to establish a special judicial mechanism or “local tribunal” to go beyond the few and limited charges being brought in the ICC system.

On Kibera, please see the report of exiled investigative journalist Clifford Derrick regarding his own experience as a victim of violence intended to stop him from reporting on illicit activity to disrupt the vote in Kibera.

The challenge for the West in Kenya’s 2012 election–and how we can learn and do better this time

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Toi Market-Nairobi

I just returned from a few days at the annual conference of the African Studies Association, held in Washington this year.  This gave me the chance to hear presentations by and informally rub elbows with some of the most knowledgeable experts on Kenya and African democracy and governance from a variety of places and institutions around the world.  The summary overview is that as we approach four years from the last election, there is so much that is still “up in the air” about the next one that it is impossible to know much about how it will play out.

Here is my view of where things are:

1.  The election date remains in active dispute.  Much Kenyan opinion holds that the new Constitution mandates an election in August of 2012 which is fast approaching.  The members of the brand new electoral commission have said in the recent past that they cannot be ready by then.  The Cabinet has just withdrawn a bill in Parliament to amend the Constitution to move the date [update: the Speaker has ruled that the bill may be re-filed tomorrow and be heard] and the Supreme Court has ruled that the matter must come up through normal channels through the High Court rather than be determined by an advisory opinion.

2.  While it is positive that the new Independent Electoral and Boundary Commission has been formed in a process widely seen as appropriate, the time involved means that we do not yet even know the constituencies and boundaries for the new elections; further this new Commission is untested.

3.  The issue of implementing the gender balance in Parliament under the new Constitution remains unsettled.  A lot of seats and salaries are at stake on this issue.

4.  Candidates, parties and coalitions remain very much unsettled and can be expected to remain so.   There has been very little obvious progress in actually enforcing the laws governing political parties and elected officials in relation to parties.  The relationship between “parties” and “coalitions” remains elusive.

5.  Politics in Kenya certainly seems more openly ethnic now than at a similar time in the 2007 election cycle.  One could perhaps make the argument that it is better to have it more “on the table” rather than “under the table”, but I do not necessarily buy that.  Regardless, there is this time no basis for outsiders to underestimate it.  How this will play out in the campaigns is unknown.

6.  Like in 2007, we have high inflation rates for staples such that the wananchi are being squeezed on the basic cost of living–while the GDP growth rate in the region and in Kenya is much less robust than in 2006-07–all aside from the drought and food crisis in many regions.  Whether this will get better or worse as the election approaches is unknown.

7.  Corruption remains a huge issue.  Overall there may have been some small progress at the margins, but in reality the accumulation of exposed cases of major graft in which no one major has been prosecuted just continues to grow.  The corruption in the 2007 election specifically was swept under the rug.  No one has been held accountable and the facts have remained concealed enough that any politician or spokesman can say whatever they want about what happened last time.  It seems to me hard to argue that there is much deterrent in place to attempts to corrupt the 2012 elections.

8.  The threat from terrorism seems to be greater and this time Kenya itself rather than Ethiopia is at war in Somalia.

No one that I heard or talked to seemed to feel that we knew much more about how the next Kenyan election might play out now than we did when I attended the same conference in New Orleans in 2009.

And yet, I picked up on what I see as disturbing reports of a repetition of the complacency that we got burned by in 2007.  At the risk of sounding “preachy” I want to argue passionately that this is a mistake.

Okay, Kenya had a peaceful and well accepted referendum in 2010 when there were worries about violence.  Let me explain why I don’t think at means so much in regard to 2012.

First, the referendum was not a close election–just as the 2002 NARC election was not a close election.  The question in the referendum was how big the margin would be, not whether it would pass.  Since the outcome of the referendum was not in play it would not have been impacted by violence or protests one way or the other.  In 2007 the outcome was in play and disputed and violence served the interests of both sides to a point.

If there had been no protests regarding the election Odinga would never have become Prime Minister–and the incumbent government was clearly committed to not allowing protests, and clearly prioritized keeping power over security for the public.  At the same time, if there had not been a murderous mobilization of Kalenjin militias against Kikuyu in the Rift Valley to the point of what Assistant Secretary of State Jendayi Frazer controversially labeled “ethnic cleansing” there might have been some remedial action about the subversion of the election count itself.   This was the approach initially advocated by the EU and other Western countries.  I would like to think that if this militia violence in the Rift Valley had been less egregious that perhaps the higher levels of the U.S. government might have come around to some form of election remediation in spite of the U.S. Ambassador’s approach.  Obviously I have no way to know–but the point remains, I think, that even the violence against Kikuyu in the Rift Valley in a way indirectly helped keep for Kibaki the new five year term that the ECK awarded him.

The bottom line is that violence ended up “working” in a sense for certain political interests in 2007-08–and the price was paid only by the wananchi so far–whereas there was no political utility for such violence in 2010.

Further, the referendum was a national vote and the outcome at individual polling centres and in localities and regions did not directly matter–very unlike the simultaneous election of the President and MPs and local officials in Kenyan General Elections.

On balance, the 2010 Referendum seems to me to provide less reasonable assurance about a clean and safe General Election in 2012 than the2002 General Election and the 2005 Referendum would have provided in 2007.

There are Kenyans whose opinions I respect who think that the era of election violence is over in Kenya because of the actions of the ICC to date.  Perhaps.  I hope they are right, but I do not see that it makes sense to bet anyone’s life on it. Which presidential contender today is showing up in the polls as less popular because he was charged by the ICC prosecutor and named in various investigative reports about the post election violence?  Who knows what will happen with the ICC process or what impact it will ultimately have?

The key for Western donors is to be prepared for contingencies rather than guessing and gambling about what might or might not happen.  To have the political will to “call out” the electoral commission before the election if it abandons the practices and tools that are clearly necessary to have a transparent and reliable election.  To reserve judgment on the process until it is concluded.  To speak out, at least, if Kenya’s paramilitary  security forces are diverted for political purposes such as sealing off Kibera and defending Uhuru Park to keep it free of protestors.  To commit to transparency to assure trust.  And to decide now how to respond to violence if things go wrong later.

To close this, I am going to fulfill a personal request from someone from the West who was importantly involved in trying to help the process last time by linking to an account of a Kenyan investigative journalist to the Kriegler Commission about what was happening in Kibera in the last election.  I have to do this with a READER DISCRETION ADVISED WARNING–this is not “family-friendly” reading.  I have no personal knowledge of any of the specifics but this does come with the personal recommendation of someone very credible who knows the source well.  We all know that Kenyan politics can be murderous and there is no reason to be complacent.

Will Kenyan ICC defendants ever become “too hot to touch” for the U.S. and other Western players in Kenya? If so, when?

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With the second round of “confirmation” hearings underway in the Hague for the charges against “the Ocampo Six” this week and next, the U.S. and other Western “donors” and supporters of Kenya’s Grand Coalition Government are confronted with the spectacle of Kenya’s Deputy Prime Minister and Finance Minister in the dock facing charges of egregious crimes of international significance. Of the six, five either have significant current jobs in the Kenyan government or are Members of Parliament (or both in the case of the Deputy Prime Minister/Finance Minister Uhuru Kenyatta).

The current Grand Coalition Government was formed as the preferred donor approach to the 2007 Kenyan election debacle–the U.S. quickly asserted that it was impossible to conduct any sort of remedial activity about the election, that both sides “needed each other” and should cut a deal to share power. The Europeans soon fell in line. The current Kenyan government, as represented in the Hague trials, is not a creation of the Kenyan voting public, but rather of the political elites on “both sides” along with the “international community” led by key players in Kenya, most especially the United States. The U.S. is said to have insisted that the coalition not be temporary but remain in place a full five years as if ordinarily elected.  In playing this role, did we not take on some responsibilities besides promoting conceptual reforms that might or might not bear fruit in the future?

I was in Kenya as these crimes were happening. Who really believes that Ocampo is making these things up?

Irrespective of whether Ocampo, or more likely his successor, ultimately wins convictions eventually, what is it that we need to know that we don’t know now to decide whether or not the defendants are ordinary political leaders of an allied country which we support and with whom we conduct “business as usual” or are ordinary defendants charged with crimes against humanity directed at their own people, and while facing trial worthy of some decent level of distance and disapproval?

Make no mistake about the defendants continued reliance on attempts to rally tribal solidarity.  Take note of  Uhuru Kenyatta’s approach to the charges that he was a primary mover in unleashing the Mungiki to murder Luos in the eastern Rift Valley as a political counterbalance to Kalenjin militia attacks on Kikuyu further west, from today’s Standard:

A lawyer representing 233 victims of post-election violence accused Finance Minister and Deputy Prime Minister Uhuru Kenyatta of uttering inflammatory statements on the eve of his appearance at The Hague.

The lawyer, Mr Morris Anyah, used press reports carried on September 19 in which the minister was allegedly quoted saying, “we are going to The Hague and we know justice will prevail, because we did nothing wrong and all we did was to support our people”.

He claimed that the statement had tribal connotations and was intended to justify retaliatory attacks that are subject of charges against Uhuru before the ICC.

On Wednesday, the lawyer said the statement, which seems to proclaim Uhuru’s innocence holds a deadly meaning in the tribal context of the 2007/2008 post-election violence.

If the defendants at the Hague this week had wanted to “support” any of the Kenyan people, or otherwise defend Kikuyu farmers and villagers in the Rift Valley, they could have used the government security forces at their disposal to secure “hot spots” in the Rift Valley rather than Uhuru Park in Nairobi, and could have more generally used the security forces for security instead of for the election effort.  What Ocampo is laying bare on both sides is tactical mass murder for politics–this was never war, it was politics by Kenyan means.

Related articles

Updated 3 Sept: ICC “Confirmation” hearings underway for Ruto, Kosgey and Sang

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A good way to keep up with the proceedings is through the website ICC Kenya Monitor.

The website includes a “watch now” link for the live proceedings using Microsoft Player, detailed daily summaries and various links and resources.

Keep in mind that rulings are not expected until late this year as to whether the charges will be “confirmed” by the judges so as to go forward toward trial in 2012.

“Book Bitings”–Some Thoughts on “Fighting For Darfur; Public Action and the Stuggle to Stop Genocide” by Rebecca Hamilton

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June 9 update, h/t Africa Files:  Human Rights Watch Report–“As South Split Looms, Abuses Grow in Darfur”.

I will join with many others in recommending Rebecca Hamilton’s Fighting for Darfur as well worth buying and reading for anyone interested in American policy in Africa, citizen activism in the West as a foreign policy input, genocide as a moral and political challenge and Sudan specifically.  Don’t get lost in the debate without taking time to get the book and read it–it is relatively short and quite accessible for busy non-specialists.

African Arguments features noteworthy reviews by Laura Seay of Morehouse College and Texas in Africa and Alex Thurston of Sahel Blog.

Hamilton was personally involved as a student activist and also worked for a time at the ICC after graduating from Harvard Law School before taking up this book project and journalism full-time.  Combining the roles of insider and journalist lets Hamilton provide the reader with direct access to an unusual range of the players in the activist and political community and those in the U.S. government at the time.  She also has direct experience and follow-up reporting from the camps in Darfur and Chad and sources in Darfur and access to officials in Khartoum.  She was also able to get some of the basic U.S. government documents declassified quickly enough to be used in her reporting.

Hamilton is left asking more questions than she is able to answer in the wake of the failure of the activists to deliver any clear positive change in the situation in Darfur in spite of their success in moving the domestic American political process in such a way that the United States officially engaged in a variety of diplomatic efforts.   Nonetheless, there is significant learning on offer here–and perhaps that learning can save some lives in the future.

It seems that there is some realization that the activists did not know enough about the context and specific background of the complex situation in Darfur as opposed to some other situation of mass atrocities in some other place or time.  There may be ways to address this shortfall in preparation for future conflagrations.  At the same time, I don’t think that it necessarily follows that our government would have accomplished more without the youthful energy and passion of the activists, or that things would not have gotten even worse in Darfur if the United States had not engaged to the extent that it did.

Writ large, this is a reminder that we don’t get second bites at the apple.  Darfur is not Rwanda and cannot offer redemption for our failure to act there.  Likewise, 2003 did not offer a second chance at the situation that the United States faced at the end of the first Gulf War in 1991.  In fact, invading Iraq in 2003 to remove Saddam Hussein ended up hamstringing the U.S. in responding to the newer crisis in Darfur.  Nonetheless, from our failures we can learn, and Hamilton’s is a real contribution.

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On the “to read” list, here is a review from the Stanford Social Innovation Review of More Than Good Intentions:  How a New Economics is Helping to Solve Global Poverty” Dean Karlan and Jacob Appel.