The recent indictment of four Kenyan leaders by the International Criminal Court (ICC) for war crimes represents the culmination of a remarkable process of local and international peacemaking. It also stands in stark contrast to Western military invasions in Ivory Coast and Libya last year. The ICC indicted four Kenyan leaders on January 23 for their role in the orgy of political violence that followed the disputed December 2007 election and left 1,200 dead and 250,000 displaced.
The four include two powerful politicians, one civil servant, and a radio talk show host. The politicians, former Minister of Education William Ruto and current Deputy Prime Minister Uhuru Kenyatta, have both vowed to run for the presidency in the upcoming elections despite the indictments.
The ICC judges confirmed that opposition party members started planning the acts of violence a year before the December 2007 elections. Opposition leader William Ruto and radio personality Joshua Arap Sang are charged with planning attacks on supporters of the ruling party. Uhuru Kenyatta and Francis Muthaura, both members of the ruling party, will face charges of financing and organizing retaliatory attacks. All four accused face charges of murder, persecution, and ethnic cleansing.
Kenyatta, named by Forbes as Kenya’s richest man, resigned his position as minister of finance after the indictment but retained his position as deputy prime minister. Muthaura, a powerful civil servant who was President Mwai Kibaki’s right-hand man, also resigned his position as the head of the civil service.
Before the charges were confirmed, the International Crisis Group and supporters of the suspects had warned that the charges could lead to ethnic tensions and even violence. But fears of anti-ICC demonstrations and violence proved to be unfounded as Kenyans reacted calmly to the indictments. Indeed, a majority of Kenyans support the ICC process. They see the international court as an alternative to the local judiciary that has allowed the political class to commit heinous acts with impunity.
ICC prosecutor Luis Moreno-Ocampo praised Kenyans, and the suspects, for cooperating with the ICC. Moreno-Ocampo said the Kenya case was “a 21st Century model” for managing political violence.
“For the last four years, they made this miracle. They have this coalition government … working together, when in the past they were attacking each other,” Moreno-Ocampo said, adding however that it could be 18 months before the appeals process is concluded and the trial actually begins.
A panel of legal scholars has been constituted to decide whether Ruto and Kenyatta can run for president while under indictment. Kenya’s Attorney General Githu Muigai has also said that his office will set up a tribunal to try hundreds of other suspects accused of organizing or participating in the post-election violence.
The Kenyan case epitomizes a successful effort by local peace groups as well as regional and international organizations to manage political conflict before it turns into all-out civil war.
Immediately after the disputed elections, Kenyan peace groups held vigils around the country calling for calm and a negotiated settlement. When these efforts failed, they approached the African Union (AU) and the United Nations and asked them to intervene.
On January 6, 2008, 10 days after the eruption of violence, the AU announced that Ghanaian President and AU Chairman John Kufor would facilitate a mediation process. Kufor met with President Kibaki and opposition leader Raila Odinga on January 9. He then announced the formation of a mediation team of “eminent African personalities” led by former UN Secretary General Kofi Anan.
The European Union also weighed in, saying there could be no “business as usual” with Kenya and threatening to cut aid if the parties did not compromise. The Bush administration also called for compromise. Jendayi Frazier, the Bush administration’s assistant secretary for African affairs, demanded that the two principals, President Kibaki and opposition leader Raila Odinga, meet “without preconditions.” She said that it was impossible to determine the winner of the flawed election and called on the government to lift a ban on media coverage and demonstrations.
UN Secretary General Ban Ki-moon, Secretary of State Condoleezza Rice, AU Chairman Jakaya Kikwete, the presidents of Uganda and Tanzania, and other dignitaries visited Nairobi to support the negotiations. On February 1, 2008 Annan announced that the parties had agreed to attend peace talks, demobilize militias, and stop inciting violence through hate speech in social and regular media. By mid-February violence ceased.
The parties subsequently agreed to set up a national-unity government that would include both the ruling and opposition parties. The constitution was amended to create the post of prime minister for opposition leader Raila Odinga. Both sides also agreed to set up an independent review board to investigate the disputed 2007 elections.
The review board’s report called on parliament to form a peace and reconciliation commission to investigate the root causes of the unrest and an independent tribunal to try those who organized and participated in the violence. The panel also handed AU mediator Kofi Annan a sealed envelope containing a list of six who they argued were most responsible for the violence. The envelope (and other information collected by the commission) was to be delivered to the ICC if the parliament did not constitute a criminal tribunal within six months.
The intervention is an example of how the international community can protect civilians without the use of military force. In Kenya, the AU led the way with the support of the UN Security Council, NATO, and the United States.
This intervention stands in stark contrast to the military invasions of the Ivory Coast and Libya last year. In both these cases, France and NATO ignored the AU’s calls for a negotiated solution. In Libya, NATO forces openly flouted UN Security Council Resolution 1973, which only authorized a no-fly zone. They also brushed aside the AU’s call for a ceasefire that Muammar Gaddafi had already accepted as well as the AU’s offer to mediate.
“It is the view of the AU that the 1973 resolution of the United Nations Security Council was largely abused in some specific respects,” South Africa’s President Jacob Zuma said while leading a Security Council meeting on January 13. Zuma said that the AU’s plan for a negotiated settlement was “completely ignored in favor of bombing Libya by NATO forces.” He said the consequences of the violence carried out in the name of the U.N. had spilled over into other nations and destabilized the region.
In response, U.S. Ambassador to the UN Susan Rice, said that the Security Council was responsible for international security and “is not subordinate” to “regional or sub-regional groups.” Trying to ease tensions, U.N. Secretary General Ban Ki-moon said that there was “room for improvement” and that the organizations should try to “work together.”
A UN report released on January 27 vindicated South Africa’s concerns about the NATO actions’ destabilizing effect. The report indicated that large quantities of Libyan weapons were smuggled into West African countries such as Nigeria, Chad, and Niger. UN officials fear that the weapons may have fallen into the hands of terrorist groups such as Al Qaeda in the Islamic Maghreb and Boko Haram .
In another military invasion in Africa last year, French troops forcefully ousted and arrested former Ivory Coast President Laurent Gbagbo after he refused to accept the results of the November 2010 elections. Opposition forces backed by 1,600 French troops deposed Gbagbo and installed Alassane Ouattara as president in April 2011. Over 3,000 people were killed in the campaign. France delivered Gbagbo to the ICC where he is currently awaiting trial for committing crimes against humanity.
In both Libya and the Ivory Coast, opposition forces and their allies also stand accused of committing war crimes. Yet, the ICC has not launched any investigations into the allegations, clearly an example of victors’ justice.
Kenya has obviously come a long way since the electoral violence of 2007/2008. The country peacefully welcomed a new constitution in 2010 that included much-needed judicial and political reforms that are designed to end impunity and patronage. These judicial reforms will go a long way toward ending Kenya’s recurring cycles of election violence. The upcoming elections scheduled for later this year or early 2013 will be a milestone on the road to national reconciliation.
Despite this progress, however, many of the root causes of political violence such as youth unemployment, wealth disparities, corruption, ethnic divisions, and land-grabbing have yet to the resolved. Tens of thousands of people displaced by the violence are still living in overcrowded camps. The country has a long way to go before it breaks the cycle of poverty, impunity, and violence.
As the elections approach, the United States and the international community should join Kenyans in preventing a recurrence of chaos and ensuring long-term peace. Kenya has long been a partner of the United States and a critical force for stability in East Africa and the greater Horn of Africa region.
The mobilization of civil society as well as regional and international support in 2007/2008 shows that the tools of diplomacy and conflict management can help stop the slide to civil war. The Obama administration and Congress should join Kenyans in encouraging greater accountability from government officials and preparing a rapid response strategy should violence recur.