A series of backstories of building tensions with the latest election approaching on the layers of accumulated grief and injustice. This is the stuff you don’t hear if you don’t have a practiced ear to the ground in Kenya and may be glossed over in the usual discussion in foreign capitals and international press. And material that is too topical for the traditional Kenyan media with political power at stake.
Congratulations to The Elephant for “speaking truth to power”.
As expendible as the lives of ordinary Kenyan citizens have always proven to be when they inconvenience or otherwise run afoul of the various state security forces, there are categories of people that are presumably understood to be off limits.
Thus the heightened shock and outrage when Kimani as a veteran young rights and justice lawyer with the respected American-based International Justice Mission is found murdered with his client and their taxi driver after being waylaid in returning from a court hearing.
Murder cases in which powerful people associated with state forces are obvious suspects are ordinarily “unsolved” and forgotten in various lengths of time depending on the prominence of the victim. There is such a long list . . . Sometimes an unconvincing resolution is put forward processed through the system to buy time while we forget.
In this case, Kimani may have turned the tables by getting a handwritten note out of an “informal” Administrative Police holding cell to be found by a passerby–without this it seems doubtful that we would ever know that they were in AP custody between their abduction and their killing. But we do know and are now responsible for that knowledge.
Will Kimani, Mwenda and Muiruri be forgetten after due processing of outrage, or will Kimani’s handwritten “brief” be a turning point for justice in Kenya? Maybe this will be a time when there is no hiding and no excuses are accepted; I think IJM is serious and committed and this case has resonance across the broad community of those who dream of a more just Kenya. No time like the present.
As I noted in my post at the time of the dismissal of the Uhuru Kenyatta charges in December 20014, Ocampo, the Donors and “The Presumption of Arrogance,” a story of babes in the woods of Mt. Kenya?, the United States’ support for “local tribunals” for the murder and mayhem in the 2007-08 political contest connected to the failed December 27, 2007 general election was akin to support for Santa Claus to bring a cure for Ebola. Local tribunals were never going to happen under any scenario after we helped divert attention from the falsification of the vote tallies in the presidential race to give Kibaki an unwarranted second term and a continued monopoly over state violence.
It was always the ICC or nothing; we have now gone from six cases to none, without even getting any of the perps to trial. Eight years after the PEV, we can say conclusively that the violence worked in spite of the (temporary) grousing of some in the “international community” and the steadfast courage of Kenyan human rights and democracy advocates.
Presumably we will never see the evidence regarding the post election murders in the possession of the Kenyan Government, but someday perhaps we will know what evidence the United States Government gathered.
I was sad to see Kikuyu wananchi celebrating the demise of the Kenyatta prosecution on the notion that Kenyatta had effected the violence to protect his “tribesmen”. Certainly I have always felt that his motivations were, to the contrary, to protect and advance his own power and privilege, and I see Ruto in the same light.
Let me be clear that I have always supported the pursuit of the ICC cases for the 2007-08 post election killings in Kenya. Not because the ICC was necessarily a good option but because it was that or nothing. My country, the United States, officially as a matter of foreign policy articulated by the State Department, always supported prosecution of the post election violence by a “local tribunal” in Kenya. Which is quite exactly like being in favor of Santa Claus bringing a cure for Ebola in Sierra Leone. In no way am I against either, but there are obviously more challenging questions begged by the devastating facts presented in these situations. (See “Christmas Shopping–For Sale: Brooklyn Bridge, Ocean Front Property in Arizona, Local Tribunal in Kenya”)
In the context of the “don’t be vague, go to The Hague” vote by Kenya’s Parliament, our U.S. position has been inevitably opaque. We are not and have never been a member state of the International Criminal Court. As a general proposition under U.S. law our officials are not to be involved in supporting ICC prosecutions, subject to certain potential exceptions. Nonetheless, as permanent members of the United Nations Security Council the diplomatic strategy of the Kenyan government in the second Kibaki administration put us to a decision as to whether or not to support Security Council intervention to interrupt the ICC prosecutions in the two Kenyan cases. We declined to do so, to our credit in my opinion.
How to understand what has happened with the pre-trial decisions by Prosecutor Bensouda to drop the charges against the two defendants in the Government/PNU case, Muthaura (on 11 March 2013) and Kenyatta (on 5 December 2014), while the trial in the Opposition/ODM case proceeds?
Almost seven years after the post election violence we are left with complete impunity on the side of those who initiated the conflict by stealing the election and employed two of the three types of large scale killings at issue in the charges of “crimes against humanity”. ICC Prosecutor Ocampo’s Government/PNU case originally included Kibaki’s Commissioner of Police, Major General Hussein Ali, but the Pre-Trial Chamber declined to confirm the charges against Ali, as it declined to confirm the charges against Henry Kosgey on the Opposition/ODM side. The greatest cause of death as identified by the Waki Commission report was gunshot wound – understood to be primarily administered by the General Service Unit, Administrative Police and Kenya Police Service forces under Ali’s command. The “body count” of those who were identifiable by tribe as reported by the Waki Commission was greatest among the Luo–those targeted primarily by the Government side rather than by the militias associated with the Opposition.
So whatever happens with the Ruto and Sang case, the winners of the post election conflict–those on the side of those who stole the election in the first place and who killed to keep and enforce power–remain comfortably immune from any negative consequences, as well as with the benefit of what they have “eaten”. No more than two individuals face any charges of the many people involved in raising and facilitating the ethnic militias in the Rift Valley that killed innocent Kikuyu in revenge for Kibaki’s election theft and to some extent for leverage in a post election political dispensation, as well as to remove future Kikuyu votes and occupy land as in 1992 and 1997 (when Kenyatta and Ruto were partnered in KANU as now in Jubilee).
Post-election IDP camp at Naivasha, Kenya, 2008
I do not necessarily blame Ocampo for having tried and failed. He took on what was perhaps inevitably a nearly impossible task given his lack of actual power. I do very much fault him for raising expectations and seeming to believe as well as play to his own press, and then quitting before the end. I am inclined to think that he simply had no realistic understanding of what he was getting into in going after Kibaki’s closest lieutenants on their own turf and was tone deaf to learning. He seems to have believed that the perceived global stature of the International Criminal Court and his office meant a lot more than it actually did in the warrens of power in Nairobi, no matter how many painted his face on the side of a matatu or a duka. It is hard to imagine how he could have failed to seriously pursue Kenyatta’s telephone and bank records before he left the prosecutor’s office in July 2012. Or how he could have seriously convinced himself that he or his successor would somehow get the records through some notion of “cooperation” from the second Kibaki Administration in which Kenyatta was a key Minister throughout, from his initial appointment during the post election violence on January 8, 2008, as well as the Deputy Prime Minister from April 2008. Did he pursue evidentiary assistance formally from the United States under those potential legal exceptions I mentioned?
I do not doubt that Ocampo showed personal courage in the prosecutions of Argentina’s ex-generals and compatriots in establishing the credential that led to his appointment as the ICC’s first prosecutor. Nonetheless, the key distinction in that case was a change in government that made such prosecutions feasible. That did not happen in Kenya because the stolen election was allowed to stand, with an eventual settlement that if anything made the situation harder by adding the perpetrators on the Opposition side into that Government as more junior parties, helping to maintain unity for impunity.
As for my country, we tried to have it both ways by supporting impunity for the theft of the election–having at the very best “actively looked the other way” while it was happening– then notionally supporting “justice” for the killings that followed. Not an idea that was ever likely to fit down a real chimney in Kenya.
And yes, I do have more stories for “the war for history” series. For instance, yes, the State Department did know before the vote in 2007 that the Kibaki Administration had dispatched the Administrative Police to opposition strongholds in support of the Kibaki re-election effort. Of course if the “AP” hadn’t gotten caught by those Kenyan television journalists it wouldn’t have been such a problem; certainly we Americans did not say anything publicly. Now that Kenyatta’s grasp on power is that much firmer with the ICC case over, I don’t doubt that he will further ramp up his efforts to formally and informally undermine the new Constitution and shift power back to the Presidency and away from the media, civil society and the citizenry at large to avoid such inconveniences going forward.
This week I got an email from the State Department’s Bureau of Democracy, Human Rights and Labor with a Request for Proposals for “Countering Closing Civic Space in Kenya and Uganda”. It’s a nice idea to support those trying to hold on to the freedoms they have won, and the amount of money–as much as $841,000.00 for a regional program for the two countries–would not have been trivial if it weren’t for the many millions we spent on the Kenyan IEBC during its 2012-13 “#Chickengate” binge, and on helping to sell its incomplete at best results to the public in the last election, for instance, among many other examples of the things we keep doing to contradict ourselves on support for rights, reform and democracy. And of course our much deeper overall long term “partnerships” with the Museveni and Kenyatta governments.
I may be the one showing naivete now, but I do actually believe that by and large most people in my government, as with the other Donors, do wish for better for Kenyans in terms of justice versus impunity, and for the protection of rights and the establishment of a meaningful democracy where voters have agency. All other things being equal, they would like Kenya to be a country in which powerful killers go to jail and votes count. It’s just that they can’t bring themselves to make the hard choices or take the risks required.
The fifthsixth eighth anniversary of the “gangland style” execution of Oscar Foundation head Oscar Kingara and his associate John Paul Oulu in their car near State House in Nairobi was this past Thursday Sunday. From the New York Times report the next day:
“The United States is gravely concerned and urges the Kenyan government to launch an immediate, comprehensive and transparent investigation into this crime,” the American ambassador to Kenya, Michael E. Ranneberger, said in a statement on Friday. It urged the authorities to “prevent Kenya from becoming a place where human rights defenders can be murdered with impunity.” (emphasis added)
The slain men, Oscar Kamau Kingara and John Paul Oulu, had been driving to a meeting of human rights activists when unidentified assailants opened fire. No arrests have been reported.
Last month, the two activists met with Philip Alston, the United Nations special rapporteur on extrajudicial executions, and provided him with “testimony on the issue of police killings in Nairobi and Central Province,” Mr. Alston said in a statement issued in New York on Thursday.
“It is extremely troubling when those working to defend human rights in Kenya can be assassinated in broad daylight in the middle of Nairobi,” Mr. Alston said.
Mr. Alston visited Kenya last month and said in a previous statement that killings by the police were “systematic, widespread and carefully planned.”
. . . .
Unfortunately, in these five years nothing has been done about the murders, and no action was taken on the underlying issue of widespread extrajudicial killings by the police. Kenya in fact proved itself to be a place where human rights defenders can be murdered with impunity. The government spokesman who made inflammatory (and baseless according to the embassy) attacks on the victims just before the killings is now a governor, and the Attorney General who stood out as an impediment to prosecuting extrajudicial killing (and was banned from travel to the U.S.) is a Senator. (See also the State Department’s Kenya Country Report on Human Rights Practices, 2013)
Below is the March 19, 2009 statement to the Congressional Record by Senator Russ Feingold who is now the President’s Special Envoy for the Great Lakes Region of Africa and the DRC, courtesy of the Mars Group:
Mr. President, two human rights defenders, Oscar Kamau Kingara and John Paul Oulu, were murdered in the streets of Nairobi, Kenya two weeks ago. I was deeply saddened to learn of these murders and join the call of U.S. Ambassador Ranneberger for an immediate, comprehensive and transparent investigation of this crime. At the same time, we cannot view these murders simply in isolation; these murders are part of a continuing pattern of extrajudicial killings with impunity in Kenya. The slain activists were outspoken on the participation of Kenya’s police in such killings and the continuing problem of corruption throughout Kenya’s security sector. If these and other underlying rule of law problems are not addressed, there is a very real potential for political instability and armed conflict to return to Kenya.
In December 2007, Kenya made international news headlines as violence erupted after its general elections. Over 1,000 people were killed, and the international community, under the leadership of Kofi Annan, rallied to broker a power-sharing agreement and stabilize the government. In the immediate term, this initiative stopped the violence from worsening and has since been hailed as an example of successful conflict resolution. But as too often happens, once the agreement was signed and the immediate threats receded, diplomatic engagement was scaled down. Now over a year later, while the power-sharing agreement remains intact, the fundamental problems that led to the violence in December 2007 remain unchanged. In some cases, they have even become worse.
Mr. President, last October, the independent Commission of Inquiry on Post-Election Violence, known as the Waki Commission, issued its final report. The Commission called for the Kenyan government to establish a Special Tribunal to seek accountability for persons bearing the greatest responsibility for the violence after the elections. It also recommended immediate and comprehensive reform of Kenya’s police service. Philip Alston, the UN Special Rapporteur on extrajudicial killings, echoed that recommendation in his report, which was released last month. Alston found the police had been widely involved in the post-election violence and continue to carry out carefully planned extrajudicial killings. The Special Rapporteur also identified systematic shortcomings and the need for reform in the judiciary and Office of the Attorney General.
. . . .
I have found possible answers to this question in the record of the first presidential debate that was organised by the Kenyan media in the run-up to the March elections. The moderator, NTV’s Linus Kaikai, explored the question of the trials with Mr Kenyatta against the fact that he was seeking to become president of Kenya. Specifically Mr Kaikai wanted to know how Mr Kenyatta would juggle between attending his trial and the duties of presidency if he was elected to office.
On the night, Mr Kenyatta provided well-considered answers to questions surrounding their cases and the presidential bid. Referring to himself and his running mate Mr Ruto, Mr Kenyatta indicated that “it is our intention to follow through [the cases] and ensure that we clear our names”. He added that he considered accountability before the ICC as a necessary step towards ensuring that the kind of problems that Kenya faced in 2007 would not recur.
In his own words: “At the same time, we are offering ourselves for leadership in this country, a position that we believe and want to pass on to Kenyans, an agenda that will first and foremost ensure that the kind of problems of 2007 are put to an end.”
Asked whether the cases would affect his capacity to run the country, he said, “many Kenyans are faced with personal challenges and I consider this as a personal challenge”.
He said he considered that since personal challenges did not affect the capacity of other people to continue with their day-to-day jobs, they should not prevent him from doing so as well.
On that night, Mr Kenyatta concluded: “I will be able to deal with the issue of clearing my name while at the same time ensuring the business of government is implemented”.
Earlier, during the same debate, in answer to a question about his understanding of the problem of tribalism and how he would be different from Kenya’s first three presidents, Mr Kenyatta answered that “we have a new Constitution now” and added that “my job as president is to ensure that the Constitution is implemented”.
. . . .
The ICC has redefined Kenya’s foreign policy totally and turned domestic politics inside out. Immediately after the post-election violence in 2008, Kenyans were clamouring for the ICC to intervene given the horrors that had just taken place.
Accountability, justice, impunity, reconciliation and other such words were the primary fodder of political discourse as we headed into the referendum on the constitution in 2010. Indeed, it can be argued that even among those most strongly opposed to the new constitutional dispensation, the dark looming cloud of the ICC and all its implications, especially the public mood that accompanied it through 2008 into 2010, all served to soften them up to demonstrate their pro-change, reformist credentials at a time when the country’s leadership and the messy albeit negotiated coalition arrangement was particularly unsatisfactory to the population.
If it hadn’t been for the ICC, perhaps more of the so-called ‘watermelons’ who pretended to support the new constitution while secretly being opposed to it, would have come out into the open with their true position.
. . . .
. . . Parts of the Kenyan population are in just such a trap: caught between our preaching about and, yes, belief in, good governance and accountability; and its realities when brought to bear in our tribalised, politicised and fragmented political economy. Grimly put – ‘it hurts like hell when it is my tribesman who is being held accountable’. It hurts so much it leads to some of the most gibbering rationalisations of absurdity possible.
The Kenyan government, after years of lack of success in its various diplomatic efforts to block the ICC prosecutions of key figures in the political killings involved with the 2007-08 elections, achieved a potential breakthrough at the most recent AU meeting in Addis. By getting a section of African strongmen and politicians to agree that the ICC shoe that they had promised to wear was pinching too tightly when it was not deferring to them as Heads of State as opposed to only pursuing lessor suspects out of power, the Government of Kenya raised the stakes for those nations that advocate a law-based international order and for the ICC as the only institution that remains with any potential to substantively express any tangible disapproval of the post-election murder and mayhem in Kenya in 2007-08.
It is in this context that the ICC will have to decide whether or not to accept a panel recommendation to move the trials from The Hague to Kenya or Tanzania.
Let me say that I am no fan of the decision to locate the ICC in The Hague in the first place. Nothing against the Dutch and I do understand that The Hague has symbolism as a seat of the international law of nations. Of course the criminal trials of individuals is something quite different and if anything in some ways undercut by the association. We are confronted now with a situation in which the indictees have taken power in a member state–in a campaign initiated in the context of their defense to the ICC charges–and wish to avoid trial by mutating the individual criminal charges into a matter of the international relations of sovereign states.
So by all means move the Court to Botswana or Belize or some other more suitable location when it becomes logistically rational to do so, but these trials are supposed to be about the loss of life and limb in the “extra-electoral” context of the Kenyan fight for political power and it makes no sense to physically conduct the trial in such a way as to put more lives in the same type of jeopardy.
First, as a general proposition, witnesses against the President and Deputy President will never be able to live in safety in Kenya for any time in the foreseeable future after being identified and choosing to testify (they may wish to accept the danger of living in Kenya after testifying but this should not be asked or expected of them); this is the cold reality that should be readily evident to anyone who has paid attention to politics in Kenya over the years. If it is understood that witnesses cannot testify in Kenya then why split up the trials over more than one location? This process has already taken too long to no one’s benefit and supposedly the ICC has problems with resources and funding and a big backlog of cases already.
Second, estimates of the loss of life related to the most recent Kenyan elections with all priority on “peace” or stability over all else were still more than 500 people. The police made extra-legal pronouncements restricting lawful civic expression and assembly; the country was basically shut down, the military was deployed and people were shot for breaking no law. A trial in Kenya would be extremely expensive and quite dangerous by any informed reckoning. The suspects on trial would be in charge of the “security” forces. How many innocent lives will be lost for this? No one can know ahead of time but it is grossly irresponsible not to count on some people who have no role in the trials dying for holding them in Kenya.
The whole point of the ICC is that it is “international”. Thirty three other nations in Africa beside Kenya are members. The reason for these cases being at the ICC was the tactical decision to vote in the “duly elected” Kenyan Parliament to “don’t be vague, go to The Hague.” If “The Hague” no longer has the stomach for this, they should declare now that the task is too hard and walk away and make clear that Kenya, in spite of the work of the Waki Commission arising out of the AU-sponsored 2008 post-election settlement and the vote of its own parliament, is a zone of impunity, at least for suspects who arise above a political ceiling on potential accountability. Otherwise, these trials need to be brought to fruition and be heard and appealed and done with purposeful speed and as few diversions as feasible.
We all know that the crimes alleged happened. We saw them and heard them and see and feel their effects today. Those of us who lived through this time in Kenya heard various bits and pieces of the details as these things were happening. If the suspects or any of them are tried and acquitted then anyone who believes that they are in fact innocent of the roles alleged can celebrate that and all of us can finally mourn justice for these crimes along with the dead.
Sir Mohinder Dhillon, renowned Kenyan photographer, photojournalist and filmmaker shared this new essay which he also submitted to the ICC judges:
“GADDAFI AND MUSEVENI”
African Unity leading Africa towards disaster.
I’d like to challenge the AU to tell me which tribunal or judiciary in Africa will ever convict a sitting Head of State. This attempt to renege on a commitment to the ICC is nothing more than a sinister plot by Africa’s dictators to save themselves from any kind of accountability. It was initiated by the late Colonel Gaddafi, who bailed the AU out of a financial crisis, thereby buying the loyalty of other African leaders whose necks were also on the line. To save himself from international justice, he wanted Africa out of the reach of the ICC. Shame on such leaders! Contrary to any suggestion of restoring national sovereignty, the aim of these people is for Africa to be out of the Rome Treaty so that they can continue with their evil intentions where money and power counts for everything and the ordinary African can rot.
Our memories in Africa are very short, particularly in the case of perpetrators of genocide, rape and murder. Those who support the AU line that accused Kenyans should be tried locally should remember that not so long ago Parliament and other local bodies preferred to hand over cases to ICC. Remember the slogan that was on the lips of all Kenyans: “Don’t be Vague, Ask for Hague”. Kenya was given 12 months to put their act together and they did not move an inch. Kenyan authorities were going to investigate several thousand of other perpetrators but none was investigated due to lack political will despite some of perpetrators were recognizable carrying out crimes against humanity. AU is becoming laughing stock in promoting impunity.
The early history of Kenya’s ICC cases seems already to have been forgotten. After the post-election violence in 2008, the Peace Accord appointed the Waki Commission which produced 529 pages report on 16 July 2009 along with 6 boxes of documents and supporting material. A sealed envelope containing names of those considered most responsible for the violence was given to Kofi Annan as mediator. Kenyan Government tried for one year to establish a local tribunal but parliament blocked this, leading to the involvement of the International Criminal Court. The ICC Prosecutor, Luis Moreno Ocampo opened the envelope, inspected its contents and re-sealed it, before proceeding at Kenya Government request to carry out investigations and develop the resulting cases for ICC.
Kenya must smell the rat behind the intentions of our neighbours in Ethiopia, Uganda and Sudan, who are guilty of gross human rights violations in their own countries. Most recently, these include muzzling the media and arresting journalists and civil rights workers, but there is a long track record of crimes against humanity in each country. The AU has failed miserably to bring the perpetrators to book, as have the local judicial systems.
Until fifteen years ago, I filmed all the OAU meetings since its inception in 1963. For most of that time, the fight against apartheid in South Africa was the only factor that held this organisation together – otherwise I’m sure it would have disintegrated. It is a matter of record that crimes against humanity on the rest of the continent have far outweighed the evils of apartheid both in terms of scale and sheer lack of accountability. Why the double standard?
It is abundantly clear that most of Africa’s leaders are more concerned with protecting themselves than they are with securing justice for ordinary people. Although we in Kenya have made enormous strides in securing personal freedoms over the last twenty years, I am deeply concerned about the negative influence of our dictatorial neighbours in Uganda, Sudan and Ethiopia, where media houses are being closed down for flimsy reasons, where opposition is not tolerated and large numbers journalists and activists languish in dungeons without being charged. Kenyan genocide victims need closure just like the victims of Charles Taylor in Liberia, where the ICC was applauded for a job well done. There can never be adequate compensation for loss of life, limbs or dignity but at least some measure of justice was served.
Members of Kenya’s Government are shouting empty slogans about protecting their sovereign rights, in complete contradiction of their earlier position. I trust that the Kenyan people can see for themselves the total insincerity of those who are driven by nothing more than fear for themselves, and total disregard for the victims of violence. . . .