If you missed it, amid all the international media scene setters, and very last minute diplomatic appeals, take 9 minutes for “The Fire Next Time: Why memories of the 2007-08 post election violence remain alive.” from Daniel Branch in The Elephant.
Much wisdom on why Kenya has remained stuck following “the debacle of 2007”.
From a COMESA Press Release yesterday:
COMESA believes that elections play a pivotal role in societal transformation in the region and provide a footstall for entrenching democratic principles.
Premised on this critical role, Member States have continued holding periodic elections which have heralded a new dawn by signifying steady progress towards deepening and institutionalizing democracy in the 19-member bloc.
Nonetheless, COMESA is still dispatching teams of Election Observers to issue Preliminary Statements just after the upcoming elections in Rwanda on August 4 and Kenya on August 8, with further reports after 90 days.
Zimbabwean Ambassador Dr. Simbi Mubako will lead the team for Kenya to arrive 30 July.
Think I am too jaded? Enjoy this:
The presidential elections in Rwanda follows the 2015 referendum that unanimously approved a constitutional amendment that allowed President Kagame to run for office in 2017. The forthcoming elections are considered important in Rwanda’s socio-economic and political progress.
In the past years, Rwanda has made significant progress in consolidating its political stability, economic growth and development. Furthermore, Rwanda has recorded major milestones in consolidating democracy through holding periodic parliamentary and presidential elections as stipulated in its legal framework.
Since 2008, COMESA has continued to support the elections process in Rwanda. COMESA observed the parliamentary that were held in 2008, 2013 and the presidential elections held in 2010.
I am all for extra diplomats and elders from the region being in Kenya for the election to meet diplomatic needs that may arise. But let’s not confuse this type of “intramembership” diplomatic obsevation with an independent election observation.
[See U.S. and IGAD Statements on Djibouti election from last year, featuring Kenya’s Issack Hassan for IGAD]
ELECTION 2017: A Silent Panic in Kenya by Dauti Kahura in The Elephant.
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”.
No doubt anyone reading this blog will have read of the abduction and execution-style murders of Willie Kimani, Josephat Mwenda, and Joseph Muiruri.
If you haven’t read it, here is Jeffrey Gettleman’s account in the New York Times, “Three Kenyans last seen at police station found dead“.
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.
UhuRuto billboard March 2013
134 days after election, Kenya’s IEBC fails to produce results in Parliament
Ethiopian President Meles has died
Somaliland rejects UNSOM presence; Kenya reading
The U.S. “official” infatuation with Kenya in numbers
Kenya’s IEBC dangles “kitu kidogo” for political parties to avoid publishing results
Kenya’s elections: Observing the observers
The challenge for the West in Kenya’s 2012 election–and how we can learn and do better this time
It’s mid-May, do you know where you’re election results are?
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?
For details on the cases, as I wrote in a post in October ahead of the ICC Status Conference, “Susanne Mueller’s article from the Journal of East African Studies earlier this year, “Kenya and the International Criminal Court (ICC): politics, the election and the law”, perhaps gives the clearest account of how the game has been played so far.”
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 fifth sixth 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.
“Why Uhuru and Ruto must attend trials in The Netherlands” by George Kegoro in the Daily Nation.
. . . .
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 Eagle Has Landed: Kenya and the ICC” by John Githongo in The Star.
. . . .
. . . History is being made.
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.
