Africa Action: Activism for Africa Since 1953
Avoiding Future Violence in Kenya: Recommendations on Creating Sustainable Peace in Kenya
by Morgan Huston
This information does not necessarily reflect the views or policies of Africa Action
Kenyan civil society has been recognized as one of the most dynamic in Africa. Accordingly, civil society has been active in the post-2007 election period, especially in calling for the structural reforms of the judicial sector and the advents of national and local peace movements and initiatives.
Civil society must continue to build upon its effort to create a broad-based and people-driven community to drive the reform and reconciliation movement from below. Because only popular pressure from within Kenya can drive these reforms, “Kenyans must believe in the power of their own institutions, including traditional ones, and their own power to solve intractable political and social problems, including poverty and social deprivation.”
Background
Kenya has been a beacon of peace and democracy on the Africa continent until the last presidential election. The results of the election in December of 2007 were highly contested and Kenya was thrown into a state of nation-wide panic.
In 2007, the disputed elections resulted in the incumbent, Mwai Kibaki, being the self-declared winner. Those who supported the opposition leader, Raila Odinga, took to the streets, burning, looting and killing Kibaki’s supporters in response to the election results. This violence was also coupled with the retaliatory killings that followed, in the end leading to the deaths of at least 1,500 people and the displacement of 300,000 over the course of two months.
The election and the subsequent violence were split along ethnic lines, essentially dividing the country into two main opposing camps. However, the crux of the political and ethnic divides is an economic one: the election crisis ignited long-standing ethnic rivalries over access to fertile land and other important resources. It also highlighted decades of corruption and misrule. Moreover, while the violence initially appeared to be conducted spontaneously and along ethnic lines, as it continued, it became clear that at least some of the violence seemed to be organized by local leaders and villager elders, and spurred by national leaders.
Thus, the post-election violence was fuelled by a cycle of economic, ethnic and political grievances. This layered and complex string of causality was addressed in the mediations between Odinga and Kibaki in March 2008. Former Secretary General of the United Nations (UN),Kofi Annan, served as the mediator of the power-sharing agreement that would eventually bring a modicum of stability to the country. The joint administration agreement called for Odinga to join the government as prime minister of Kenya, while Kibaki remained president. Although the agreement included provisions for land reform, constitutional change, judicial and security sector reform, tackling youth unemployment, and addressing ethnic tensions; so far, none of these areas marked for improvement have been addressed. There is still no head of the interim electoral commission and the constitutional review process has been stalled.
The threat of future violence surrounding the upcoming presidential elections in 2012 is real. Ethnic gangs have been rearming, and this time with guns instead of machetes. In practice, it is not peace as much as it is simply a cease-fire. While Kenyans initially welcomed the coalition government’s plan for reform, they have quickly become disillusioned by the stagnation of progress. Unable to place their hopes and confidence in their democratic process, disadvantaged and voiceless Kenyans will place increasing level of importance on their ethnic networks and identities, creating a tinderbox for future violent conflagration. The issues which needed to be addressed by the Kenyan government and the international community have instead been ignored and allowed to worsen, dragging with them the political and economic potential of the country and its population.
Recommendations:
In spite of the magnitude of challenges facing the country, there are various concrete steps that can be taken to help avoid a future outbreak of violence in Kenya, and prevent a downward spiral of instability.
On Political Reform...
Kofi Annan, among others, has stressed that Kenya needs political reform in the next year to avoid renewed violence in 2012. This is particularly important because the recent violence can be seen as action of last resort by “disenfranchised people acting out in the only way they can now that democratic elections have been stolen from them.” The reinforcement of legitimate, popularly elected, and democratic channels, that will also implement effective and sustainable improvements to those long-standing grievances, could offer a peaceful option for those who want the government to address their concerns.
1. The U.S. should actively urge the Unity Government to resolve its political gridlock and support democratic institutions, such as an independent judiciary, an independent electoral commission, a free press, and constitutional reform to ensure not only free and fair elections, but also the unhindered transfer of power to the winners in 2012.
2. The constitutional reform process is an ideal moment for Kenya to improve its human rights record and incorporate economic, social, and cultural rights into the new constitutional draft. It must be developed with extensive civil-society participation and with the inclusion of representatives for the displaced, women, communities, religious leaders, village elders, and national leaders.
On Transitional Justice...
The post-violence period brings with it the challenge of how to administer justice so that the peace is maintained and sustainable. There are significant obstacles to the investigation of the violence. Many complainants and witnesses have been displaced by the violence, and are hard to find to include in full and proper investigations. The nature of the violence also invites the expectation of retribution against a victim who speaks out against a perpetrator. Because many of the victims and the perpetrators know each other and their families, there is a high risk of retribution that could prevent some victims and witnesses from coming forward. When the perpetrator is an agent of or is associated with an agency of the state, there is also a reluctance to cooperate with or give evidence to the state. These hurdles in transitional justice have yet to be overcome in Kenya.
The commission of inquiry into the violence released the Waki Reports in October 2008, which included recommendations on how to administer transitional justice. The reports emphasized the formation of a Special Tribunal to investigate, prosecute, and adjudicate people who bear the greatest responsibility for crimes committed during the post-election violence, particularly crimes against humanity.
While the Kenyan government has agreed to continue efforts to set up national proceedings by July 2010, it remains far behind the initial schedule. It has also agreed to share information on their investigations and prosecutions with the Special Prosecutor, as well as the measures it takes to protect witnesses.
In addition, if the implementation or the practice of the Tribunal fails, the government of Kenya has agreed to refer the situation to the ICC within one year, in accordance with Article 14 of the Rome Statute.
1. The establishment of the Tribunal or the referral of the cases to the ICC is a positive step towards ending the culture of impunity in Kenya. The eradication of impunity for these types of crimes will promote the rule of law and make national reconciliation possible for Kenyans. This Tribunal should be held on Kenyan soil but apply both Kenyan law and The Kenyan power-sharing government must make this Tribunal a priority to bring those responsible for the violence to justice, no matter who they are - delays in the start of the proceedings will not erase the need for accountability in the case that Kenya is not able to bring these perpetrators to justice, the ICC will be used to do so.
Unfortunately, the process towards establishing this court has been stymied at almost every turn; in February 2009, members of parliament rejected legislation that would have paved the way for the Tribunal and many did not even attend the session to vote on this important legislation. Not only are politicians are worried about implementing a Tribunal which could, in the end, prosecute them for their roles in the violence, but many Kenyans even worry that, if major politicians are taken to court, they will tell their followers to reignite the violence.
A targeted amnesty for those who were only minor players in the violence could be allowed, according to the Report, in exchange for truthful confessions and their help in investigating and prosecuting major offenders. This may prove to be an effective and sustainable compromise for transitional justice: minor offenders would be subject to a minor-scale truth and reconciliation process in exchange for amnesty, while major offenders would be prosecuted formally in either the Tribunal or the ICC.
On Corruption and Economic Development in Kenya...
Kenya’s dubious distinction of being one of the most corrupt countries in Africa must be addressed. While corruption is allowed to flourish with impunity, violence cannot be resolved. Transparency International has ranked Kenya 147 out of 180 on the Corruption Perception Index for 2008, along with Russia, Syria and Bangladesh. Kenyan politicians remain some of the highest paid in the world, making between $8,000 and $10,000 a month.
Corruption scandals involving corn and oil supplies in Kenya, coupled with a devastating drought, have even left more than 10 million people with a severe shortage of water and food. Over a million school-going children who rely on school feeding programs are in danger of starving. Only 20 million bags of maize were harvested for this year, while the annual consumption is 33 million bags. Over 100,000 heads of livestock have died, prompting the pastoralists to leave for Ethiopia, Sudan and Uganda.
Kenya is also the biggest economy in East Africa, with billions of dollars in foreign investment, putting it in an advantageous position to tackle its inequities and tensions, relative to its unstable neighbors. Kenya relies on tourism for the majority of its income; the violence after the elections in 2007 seriously impacted the influx of tourists into the country.
Businesses and organizations, including all of the major groups that operate in East Africa and the UN, may be deterred from continuing to base themselves in such a volatile business climate; the withdrawal of these groups, along with the accompanying taxes, services and financial participation to the local economies could be devastating to the Kenyan economy.
There is a strong incentive for the Kenyan government to enact immediate and sustainable reforms to regain its attractive standing with potential foreign investors.
1. The U.S. should support Kenya by supporting investments in infrastructure, accountability and transparency. This will benefit Kenya and spur increased development. Such development can help to minimize the economic grievances that give rise to ethnic tensions. Foreign investment must ensure that their significant profits also benefit the communities in Kenya in the form of employment, infrastructure and development.
2. There needs to be an intensification of the efforts to prosecute cases of corruption, to train police and other law enforcement officials to obey and enforce anti-corruption laws, raise awareness, and stress transparency on all levels of Kenya’s political and economic spheres. The U.S. can play a key role in building or reinforcing anti-corruption laws by strengthening civil society voices in Kenya.
3. An overhaul of the present constitution would restore the people’s confidence in governance, in particular, the judiciary system.
On Social and Cultural Rights...
The UN Committee on Economic, Social and Cultural Rights, the World Organization Against Torture, the Center for Minority Rights Development, and the Kenyan section of the International Commission of Jurists came together to issue reports on recommendations for reducing the levels of inequality, and therefore the risk of violence, in Kenya:
1. The U.S. should adopt the recommendations made by the Committee and use diplomatic leverage to urge the Unity Government to adopt the Draft National Land Policy, which would establish land inspectorates to monitor the discriminatory allocation of land. Access to the minimum amount of food and clean water in both rural and urban areas could also prevent inter-community conflict.
2. In addition to a tribunal on post-election violence, as was made mandatory in the power-sharing agreement, a Truth, Justice and Reconciliation Commission should be created to address broader historical injustices, foster dialogue, and promote comprehensive reconciliation among different ethnic groups in the country.
Conclusion
Both Kenya and the world at large stand to gain from the stabilization of the economic, social and political situations in the country. Kenya has important ports that funnel fuel into the region, helping to run vehicles and industries, as well as providing much of the eastern Africa’s electricity. Ensuring that the fuel channels are safe and stable will be beneficial to the region as a whole. International politics and the global economy need Kenya to return to its previous status as a stabilizing force in the region. If Kenya fails to avoid a recurrence of violence, it will be very difficult for its already volatile neighbors to resist the momentum of violence and leadership failure. States in a maelstrom of inadequate governance and ethnic violence have also been known to become hotbeds of fundamentalism and criminality. Islamic extremists and piracy have already gained a foothold in the region; Kenya’s collapse could only herald an increase in the risk of terrorist acts and piracy as a threat to maritime shipping. This affects the entire globe, not just East Africa.
It should be emphasized, however, that Kenya does not have to be a lost cause, relegated to the lists of failed and failing states on the continent. There is grassroots support for peace and reconciliation in the country, as well as international support for justice and accountability. Kenyan civil society must remain vocal and outspoken to encourage politicians and leaders to reconcile differences through development schemes that address the inequalities facing Kenyan citizens. Undoubtedly, the Kenyan people, civil society, and politicians have the tools to replace a cease-fire with a sustainable peace.
