Before Kenya’s vote, read Daniel Branch’s The Fire Next Time

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”.

Ocampo, the Donors and “The Presumption of Arrogance”; a story of babes in the woods of Mt. Kenya?

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

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.

“A reply to concerned commenters on the Ocampo charges” and preparing for 2012 in Kenya

This is something I prepared last December at the time the ICC prosecutor initiated his charges against “the Ocampo Six”.  Now that another four months has gone by, and we are many more months away from knowing whether any trials for the Kenyan post election violence will proceed, I thought it was worth revisiting:

With respect, it is hard for me to believe that anyone seriously thinks that [former ECK Chairman] Kivuitu himself was the primary manipulator of the election results. It happened on his watch, yes. He failed, but was not the primary instigator, nor beneficiary. I am very sad that the Kreigler Commission charged with investigating the election chose to fence off from review what happened with the presidential results–this is a great loss. Nonetheless, the charges of crimes against humanity sought by Ocampo as prosecutor before the ICC will stand or fall on their own merits. While Mr. Ocampo was not elected, he was appointed through a lawful process established by the countries, including Kenya, who are State Parties to the ICC convention. What prosecutors in Kenya are elected? Yes, there are more people who could be charged with more crimes–but the cold reality is that it is almost three years since the election, and it is the ICC or nothing and no one. This is less than it could have been, but far better than nothing.

Having lived with my family in Nairobi through the campaign, voting and violence, aside from my role in supporting the election process , the observation mission and exit poll, I fully appreciate the angst over the manipulation of the results after a peaceful vote, and over the role of the authorities in both the manipulation itself and in contributing to the violence by suppressing lawful protest and even murdering innocent citizens. To date no one has been prosecuted for any of this–Ocampo’s charges against Ali are a breakthrough in this regard. Ocampo is not seeking charges against anyone from the opposition for the chaos caused by the stolen election, but rather for crimes against humanity in the Rift Valley that are akin to the violence there in 3 of the last 4 elections. The judges will decide whether the indictments are issued, and if so, the trials will proceed with both sides presenting their evidence.

To say something further that I have not said publicly before, I do want to be clear that it is my personal belief that bribery of Kenyan election officials is “what happened” in the presidential election. I have not written or spoken publicly of this before because I claim no evidence or personal knowledge. In the first instance, it is what I was told by a senior diplomat (not U.S. Ambassador Ranneberger or anyone who worked for him) during that the post election period. It was explained to me that clear evidence had been identified. I accepted this as being explained to me not as gossip or a matter of personal interest, but as important information that I needed to know in the context of my job. There was no discussion of confidentiality, but it was what I will call a “private conversation in a public place”. Nothing clandestine, nothing that I was not to report back privately or act on but obviously not something I could “go public” with without being provided more detail and evidence which wasn’t offered.

Everything else I have learned since then is consistent with what I was told, and nothing is contradictory. I still have no personal knowledge or evidence, but it is what I do believe. This is one significant part of why I continued to be of the opinion that the exit poll indicating an opposition victory in the presidential race should be released.

Certainly the last election is very much “water under the bridge”, but now Parliament must grapple with constituting a new Election Commission for the current election season with campaigns already gearing up. Kenya very much needs better election officials this time than last time. The technical capacity to hold a clean election is certainly there–as we know from 2002, and the referendum in 2005 and in 2010. The moral capacity for tragedy and chaos is there, too, as we know from 2007.

“O-Negative” Conspiracy Theories Show Kenyans Can Be As Politically Credulous as Americans

Here is the AP today:  “Kenya’s tribal ‘O’ factor: Obama, Ocampo, Odinga”.  Apparently it is always easier to believe objectively outlandish things about people who are members of different ethnic groups–no big surprise I suppose.

Perhaps the next thing will be to see Donald Trump start expressing interest in the Kenyan presidential race.

In Kenya a lot of the problem is the degree to which news reporting is skewed by the government and other interests, whereas I think in the U.S. it is more a matter of the crowding out and dumbing down of news by the commercial celebrity culture, and the “narrowcasting” problem whereby people get their news from either opinionated sources conforming to their ideological predispositions or from superficial “he said, she said” reporting that provides nothing except the two adversarial arguments of the usual political combatants, irrespective of facts.  It may be that Kenya is on the upswing in this regard whereas here in the U.S. we are on the downswing.

At least no one in Kenya so far as I know believes Obama was born there.

ICC Judges Summon “Ocampo Six” while Government of Kenya Lobbies for “Delay” in New York and Food Crisis Worsens [updated]

2.4 Million Kenyans threatened by acute food shortage.

The food crisis worsens in Kenya.  [In an post last fall entitled “The Kenya Lobby, Corruption and Hunger” I noted a report predicting an increase in hunger.  We are now seeing that play out, while the Government of Kenya remains focused elsewhere.]

Ocampo Six ordered to appear in the Hague.

ICC:  Kalonzo shuttle diplomacy hits New York.

The Vice President said that Kenya has no intentions of pulling out of the ICC nor is it seeking to assist those named by the ICC prosecutor to escape justice: “All we want is [for] the UN Security Council to consider positively the Africa Union resolution endorsing Kenya’s request for a 12 month deferral to allow us to complete reforms and embark on local trials.”

For some reason the Vice President does not seem to be calling attention to the fact that the Kenyan Parliament recently voted almost unanimously to support withdrawal from the ICC, well after the promulgation of the new constitution.

[Update:  no indication in any change in position by the United States which remains unwilling to support UN Security Council intervention to stop the ICC prosecutions.]

Warning That U.S. might cave on ICC for Kenya and Sudan

Africa Confidential’s February 4 “free article” titled “Rewards and Realpolitik” should be troubling to those in civil society in Kenya and in the West who, like I do, consider the pending ICC prosecutions in Kenya to be crucial for addressing impunity.

Africa Confidential suggests that the United States and France are giving serious consideration to acting in the U.N. Security Council to agree to defer prosecution of Sudan’s al-Bashir as part of the “carrot” approach endorsed by Envoy Gration and others to try to maximize his cooperation on the split with the South and on Darfur. Reportedly some detailed conversations at high levels of the State Department have taken place. A Sudanese source reportedly says that a deferment for the “crimes against humanity” charges for the six Kenyan suspects would be thrown in as part of a deal with the AU to provide diplomatic cover on accusations of a “double standard”.

Please take time to read the whole detailed article and weigh in if you care about this.

David Throup of CSIS wrote a useful thumbnail overview of the post election violence in Kenya and the underlying ethnic and political tensions. While David was controversial as an outspoken critic of the EU election observation in Kenya, it should be noted that his own calculations as initially discussed publicly in Washington had Kibaki losing the election and claiming victory through fraud, so in that sense he has been part of the overall international consensus regarding the voting. The crucial point is that there were different types of violence that happened for different reasons–thus demanding a differentiated response as reflected in ICC prosecutor Ocampo’s selection of cases to bring forward.

“The International Criminal Court and the Post-Election Violence in Kenya” by David Throup at CSIS’s Online Africa Policy Forum Blog.

Most Kenyans, according to opinion polls by the local press, however, believe that the six named individuals should be prosecuted. They are right–the era of impunity must be ended. Most of those displaced in 2008 still remain in encampments, too frightened to return to their homes. The next election may well be even more closely contested and violent unless a clear message is sent that the era of impunity is over and that perpetrators of violence will either be tried in Kenya’s courts or appear before the International Criminal Court. Both Kalenjin and Kikuyu as Kenyans have the right to live and farm in the Rift Valley and in other parts of the country. As Kenya becomes more ethnically intermixed, ideas of ethnic hegemony and arguably the era of ethnic-politics can no longer be tolerated.

There is, however, one danger. William Ruto and Uhuru Kenyatta are “big men”. . . The ICC preliminary charges may possibly intensify ethnic identities, uniting the Kikuyu and Kalenjin communities in a joint sense of persecution. Uhuru Kenyatta and William Ruto are highly regarded in their communities and would constitute a formidable alliance at the next election. The ICC and the international community should proceed with caution and encourage moderate voices which urge compliance in the hope of a better Kenya.

As far as Kenya goes, the perception that Ruto and Kenyatta and associates, with Kibaki’s help, successfully faced down the ICC and the international community generally, seems to me to be about the worst thing that could happen in terms of enshrining impunity and deterring further reform efforts by Kenyan citizens and civil society. Even if the Administration takes the approach of protecting al-Bashir, it would seem especially cowardly to sacrifice Kenya in the mix for the reasons suggested here.

The human rights community in the U.S. seemed to be caught off guard when the Administration issued blanket waivers for countries employing child soldiers, so presumably they will not be complacent now.

Kenyan reactions to the ICC cases

Maina Kiai has the best articulation I have seen of the problems with the response to the naming of the ICC suspects at his blog this week under the title “After the Ocampo List: Let’s Get the Facts Straight”:

The Ocampo list is finally out and as expected, all manner of reactions are coming out, many of them quite frightening. And many of them are totally wrong. Predictably the attempts to turn this from individual responsibility to alleged community persecution are in high gear. This is a constant for the Kenyan political elite who enjoy the benefits of power, status and privilege as individuals but as soon as trouble starts, they try to turn it to a community issue… More insidious is the idea that non-politicization by the ICC must mean that all ethnic groups must be represented on the list without regard to the evidence of criminality . . .

For me, one of the worst elements coming out is the idea that Mass Action is a crime. It is not, it can never be. In fact, it is a right, guaranteed by our new constitution, and also by international law. Mass action is NOT a call to violence. Mass action is not saying “destroy and demolish”. Mass action is simply peaceful protest. I bet that had this been allowed in 2007/8, we would have had less violence than we eventually did. It is a vent – a legitimate vent – for people to peacefully express their views and objections.
Yes, it can turn violent, and it does so in many cases, not just in Kenya but across the world. And when it does, the State must restore security and safety in a manner that is appropriate. Not by shooting people in the back. Not by suggesting that everyone out in the streets is a criminal. Not by raping women indiscriminately.
We need to protect and defend the idea of Mass Action and do so fiercely and jealously. Kenya’s move from total autocracy and dictatorship owes much to Mass Action – from 1990 when Jaramogi Odinga, Ken Matiba and Charles Rubia called for Mass Action to protest the one party state; to the mass action of the mothers of political prisoners in 1992; to the mass action led by Kenya Human Rights Commission from 1995 against extra judicial executions and against the state sponsored violence in the Rift Valley and Bungoma; to the mass action in 1997 on the need for a new constitution. Mass action has been a tool, a non-violent option, to spur change.
Now it is being called a crime by those who fear being held accountable for their own REAL crimes. If society cannot have a vent for peaceful grievances, then the likelihood of resorting to violence rises. So we must not succumb to purely political propaganda that wants to equate calls for mass action with criminality. . . .

It is not too late, nor too expensive, for some bit of justice here, it seems to me.  While it is a crime in itself that no one is being prosecuted directly for the election crimes, it seems to me that the prosecution of the police commissioner is at least a prosecution of the direct state actor in charge of enforcing the election theft by suppressing the inevitable protests.  Beyond that the ethnic-related militia killings addressed in the other Ocampo charges are exactly the kind of crimes against humanity that surely do  not have to be tolerated in the twenty-first century in a country like Kenya, irrespective of election competition.  Far from doing anything for the cause of electoral justice, Kalenjin militias being turned against Kikuyus in the Rift Valley helped solidify Kibaki’s hold on power after he was sworn in such openly questionable circumstances.

Christmas Shopping–For Sale: Brooklyn Bridge, Ocean Front Property in Arizona, Local Tribunal in Kenya

“People, it is THREE YEARS since the election, isn’t it . . . ”

Surely it is a simple choice between the ICC and impunity at this point. Every Kenyan is is entitled to his or her opinion as to what is best, but it would be unfortunate to be diverted into fantasy in looking at the way forward. Who is it that said that the ICC process was ideal or perfect? The choice of the ICC was made with eyes open. It is only the desire to preserve the ground rules that accountability can only go so high, that certain “champions” are untouchable, no matter what they do, that has triggered the “buyers’ remorse” we are seeing now with the choice of the ICC.

Remember that the Truth Justice and Reconciliation Commission was sold as an alternative to legal trials. Now we see that Parliament was sitting on a report calling for Bethwel Kiplagat to be investigated for an alleged role in the Ouko murder when they approved him as head of the TJRC. I don’t buy the idea that any local tribunal now in Kenya could take on the highest level of suspects in the post election violence, and I think that is the whole point.

Kibaki pledges no action for now against six suspects; key reading on Rift Valley

From Capital FM, “Ocampo Six can rest easy, Kibaki says”

NAIROBI, Kenya, Dec 15 – President Mwai Kibaki has made it clear that he does not plan to take any action against government officials named by ICC Prosecutor Luis Moreno Ocampo as suspected masterminds of the post election violence.

In a statement sent from State House on Wednesday afternoon, the Head of State said calls for action against those named were “prejudicial, pre-emptive and against the rules of natural justice.”

Christian Science Monitor series by Scott Baldauf:

Part 1: As ICC names suspect Kenyan leaders, records reveal talk of more ethnic cleansing

Part 2: Why one young Kenyan decided to kill for an ethnic militia

Part 3: In Kenya, the deep pull of land drove grievances – and ethnic violence

Part 4: Threats to Kenya’s ICC witnesses: Traitors will be dealt with ‘ruthlessly’

RELATED: The six men accused of inciting Kenya’s post-election violence

Political tensions rise in Kenya ahead of ICC indictments

Kenya’s Cabinet met today to consider the crisis presented by key members of the coalition government being named Wednesday in the Hague when prosecutor Luis Moreno-Ocampo seeks six indictments for alleged primary actors in 2008 Post Election Violence. Divergent views have emerged as to what was or was not agreed to, raising questions as to the extent to which the ICC will obtain the promised cooperation of the government. The Presidential Press Service released a statement saying that the cabinet has now agreed to moving forward to create a “local tribunal” in Kenya to prosecute Post Election Violence cases. The ICC prosecutions were eventually initiated after Parliament voted down previous proposals for such a tribunal.

This is the report from the Standard, titled “Fresh Plan to Block Ocampo”:

. . . .
President Kibaki and his Party of National Unity (PNU) now want suspects identified locally and by the International Criminal Court to be tried by a local tribunal. The move has left Prime Minister Raila Odinga and ODM in a quandary just a day after the PM and Kibaki appeared united in condemning US Ambassador Michael Ranneberger.

The PNU plan is banking on support from rebel ODM legislators from the Rift Valley opposed to Raila, but allied to Eldoret North MP William Ruto, to drum up support for the plan in and outside Parliament.

Raila and MPs allied to him are opposed to the plan, noting that the same MPs voted against a local tribunal to try the suspects in February, 2009, but have lately been outspoken in condemning International Criminal Court prosecutor Luis Moreno-Ocampo, claiming his investigation is one-sided and targets certain communities.

They say the ICC process should be allowed to run its course since Kenyans’ trust in the local judicial system is severely lacking.

But it is the shock decision by Kibaki, who appeared to go back on his promise to mediator Kofi Annan that the Government would support the ICC probe, which is bound to keep analysts busy for the rest of this week.

. . . .

The EU released a statement saying that they do not expect violence in the wake of Ocampo’s naming of suspects Wednesday.