The Responsibility to Protect and the International Criminal Court

Protection and Prosecution in Kenya

Serena Sharma

• Publisher: Routledge
• Year: 2015
• ISBN:
  9781134703876
• Edition: 1
• Topic: Politik & Internationale Beziehungen
• Subtopic: Frieden & globale Entwicklung

This book provides an account of how the responsibility to protect (R2P) and the International Criminal Court (ICC) were applied in Kenya.

In the aftermath of the disputed presidential election on 27 December 2007, Kenya descended into its worst crisis since independence. The 2007-08 post-election crisis in Kenya was among the first situations in which there was an appeal to both the responsibility to protect and a responsibility to prosecute. Despite efforts to ensure compatibility between R2P and the ICC, the two were far from coherent in this case, as the measures designed to protect the population in Kenya undermined the efforts to prosecute perpetrators. This book will highlight how the African Union-sponsored mediation process effectively brought an end to eight weeks of bloodshed, while simultaneously entrenching those involved in orchestrating the violence. Having secured positions of power, politicians bearing responsibility for the violence set out to block prosecutions at both the domestic and international levels, eventually leading the cases against them to unravel. As this book will reveal, by utilising the machinery of the state as a shield against prosecution, the Government of Kenya reverted to an approach to sovereignty that both R2P and the ICC were specifically designed to counteract.

This book will be of interest to students of the Responsibility to Protect, humanitarian intervention, African politics, war and conflict studies and IR/Security Studies in general.

Part I
The responsibility to protect

1
Kenya burning

The 2007–08 post-election crisis

We want to send a very, very strong message to Kibaki. Because we cannot get him, we are going to work on his ethnic group, the Kikuyu.¹

In the aftermath of Kenya’s General Election on 27 December 2007, the country descended into its worst political crisis since independence. What began as popular protests against the outcome of the presidential ballot soon escalated into violent clashes across the country. After nearly eight weeks the post-election clashes had claimed over a thousand lives, forced hundreds of thousands to flee from their homes, and brought extensive economic losses to the country and the region as a whole. As violence continued to spiral across Kenya, the country appeared to be on the brink of a civil war. The impact of the crisis reverberated far beyond Kenya’s borders, highlighting both the vulnerability of its neighbours as well as the importance of Kenya’s stability to the region as whole.

Although the General Election was the immediate trigger for the violence that followed thereafter, the actual causes of the crisis were deeply rooted in a set of structural conditions that made the country particularly prone to electoral violence. While these factors had erupted into bloodshed during previous elections, the sheer magnitude of the violence during the 2007–08 crisis seemed to catch most observers off guard.

This chapter will examine the 2007–08 post-election crisis in Kenya. It will begin by exploring the circumstances surrounding the 2007 General Election and the ensuing violence. After examining the different patterns of violence that emerged and the broader impact, the chapter will turn towards the underlying causes of the crisis. The final part of the chapter will consider the proximate indicators of violence and the question of whether the Government and international community could have been better prepared.

The 2007 General Election

On 27 December 2007 Kenya prepared to go to the polls in the fourth General Election since the return to multiparty politics in 1992. There was much anticipation prior to the vote, particularly in relation to the Presidential ballot, as nine candidates vied for the country’s top office. In the weeks preceding the polls the race tightened between the incumbent, Mwai Kibaki of the Party of National Unity (PNU) and Raila Odinga of the Orange Democratic Movement (ODM). The final pre-election poll conducted by the Steadman Group projected a 2 per cent lead for Odinga at 45 per cent to 43 per cent for Kibaki.²

Although Kibaki and Odinga were bitter rivals during the 2007 General Election, the circumstances surrounding the preceding polls in 2002 could not have been more dissimilar. Five years earlier, the two presented a united front, as Odinga supported Kibaki’s bid for the presidency under the National Alliance Rainbow Coalition (NARC). Through a pro-reformist platform, NARC defeated the ruling Kenyan African National Union (KANU), which had governed the country since independence. NARC’s historic landslide victory led to wide-spread elation across the country as Kenyans from all walks of life celebrated an end to KANU’s 39-year rule.³

Kibaki’s inauguration was held at Nairobi’s Uhuru Park on 30 December 2002. As jubilant crowds gathered to mark the occasion, feelings of euphoria and anticipation filled the air. The country seemed to be on the path of a new dawn. In his inaugural address, Kibaki reaffirmed his commitment to the people of Kenya:

The era of ‘anything goes’ is now gone forever. Government will no longer be run on the whims of individuals.… The authority of parliament and the independence of the judiciary will be restored and enhanced as part of the democratic process.… Fellow Kenyans: I’m inheriting a country, which has been badly ravaged by years of misrule and ineptitude … I believe that governments exist to serve the people, not the people to serve the government. Corruption will now cease to be a way of life in Kenya.⁴

Among the extensive reforms Kibaki had pledged to the Kenyan electorate in 2002 were measures to reign in the powers of the executive branch. The promise to curb presidential power was to be secured through the delivery of a new constitution and the creation of a prime ministerial post, which Kibaki had guaranteed to Odinga.

Upon his ascension to the Presidential Office central tenets of Kibaki’s reformist agenda began to unravel. Apart from reneging on his promise to appoint Odinga as Prime Minister, Kibaki put forward a draft constitution that continued to vest power in an all-powerful president. Given the high expectations accompanying NARC’s victory at the polls, the failure to uphold his commitment facilitated widespread disillusionment across the country. The reversal of Kibaki’s reformist platform also led to internal divisions within NARC. Such divisions became increasingly pronounced during the 2005 constitutional referendum, as several Cabinet ministers, including Odinga, campaigned against the draft constitution. On 21 November 2009, the ‘No’ campaign carried the day with 58.1 per cent of Kenyans voting against the Government-sponsored draft.⁵ For many, the defeat of the draft constitution was tantamount to a vote of non-confidence in Kibaki’s leadership. Those opposed to the draft called on him to stand down and hold new elections; Kibaki’s response was to dismiss his entire Cabinet in an effort to purge those who campaigned against the draft constitution.

The aftermath of the constitutional referendum became a catalyst for Odinga to launch his bid for the Presidency in 2007. Drawing on the symbol of an orange – which represented the ‘No’ side during the 2005 referendum – Odinga launched the Orange Democratic Movement (ODM). Hence it was in the midst of the constitutional referendum that the battle lines for 2007 were drawn. The events surrounding the 2005 constitutional referendum sowed the seeds of bitterness among the candidates and their supporters, while setting the tone for the campaign and the violence that would soon follow.

Although the 2007 General Election in Kenya has come to be associated with scenes of horror that nearly brought the country to the brink of disaster, it is worth recalling that the voting on 27 December proceeded in an atmosphere of calm. The 2007 election also witnessed the highest number of registered voters in Kenya’s electoral history, with an estimated 69 per cent of those registered to vote turning out to cast their ballot.⁶ In the vast majority of polling stations around the country, the vote was conducted in a peaceful fashion, without any major incidents reported. It was predominantly during the ballot counting and tabulation process at the Kenyatta International Conference Centre (KICC) in Nairobi that turmoil began to ensue.

The first sign of impending trouble was the delay in announcing the results of the Presidential ballot. When questioned on the cause of this delay, the Chair of the ECK, Samuel Kivuitu, indicated that he had lost contact with a number of returning officers who apparently had their phones switched off.⁷ This set the stage for further anomalies during the vote tabulation process, including differences between results announced at the constituency level versus the KICC, the failure of returning officers to produce statutory forms, the announcement of results in the absence of required legal documentation, evidence of voter level turnout being deliberately inflated, and discrepancies between parliamentary and presidential tallies.⁸ According to the report of the Kenyan Elections Observers Log, ‘the discrepancies were planned systematically and were not accidental, and they involved most Commissioners who clearly organised how the tallying was to be carried out.’⁹ The tallying procedures within the KICC drew concern from ECK Commissioner Kipkemoi arap Kirui, who raised these issues with a colleague: ‘This is an important national exercise. I am concerned that we are not following the law and we are letting down Kenyans.’¹⁰ Kirui subsequently resigned from his post before the presidential results were officially released.

The unexplained delay in announcing the presidential results and mounting irregularities led to mayhem at the KICC. Members of the PNU and ODM disputed the returns from a number of constituencies; party officials became embroiled in heated exchanged with members of the ECK; and the Chair of the Commission appeared increasingly beleaguered. The quarrels inside the walls of KICC were soon mirrored on the ground, as rumours of electoral fraud began to spread throughout the country. In a number of ODM strongholds including Nyanza and the Rift Valley provinces, the delay in announcing the results led to violence and widespread looting. The Chief Police Commissioner, Hussein Ali, responded by ordering the public to shun violence. Foreign observers who had earlier praised the manner in which Kenyans had cast their ballots were now expressing their concerns.

On 30 December, ODM announced its own version of the presidential poll results. According to the figures released by ODM, Odinga had garnered 49 per cent of the vote to 44 per cent for Kibaki. As Musalia Mudavadi noted: ‘Honourable Raila Amolo Odinga is therefore the winner and the fourth President of the Republic of Kenya.’¹¹ While the initial results seemed to confirm Odinga’s victory, in the final hours of the tallying process that lead ‘evaporated under opaque and highly irregular proceedings’¹² and was subsequently ‘transformed into a razor-thin margin of victory for Mr. Kibaki.’¹³ On the same day the Chairman of the ECK announced that Kibaki had been re-elected with 4 584 721 votes to 4 352 993 for Odinga.¹⁴ As Kivuitu stated: ‘This means honourable Mwai Kibaki is the winner. The Commission therefore declares honourable Mwai Kibaki as the President of Kenya.’¹⁵

Less than an hour after the ECK announced its results, Kibaki was hastily sworn in at State House.¹⁶ The ceremony, which was broadcast on the state-owned Kenya Broadcasting Corporation, took place three days ahead of schedule, absent of the grandeur of Kibaki’s inauguration ceremony five years prior. Only a handful of PNU officials, the police and members of the armed forces were in attendance. By the time Kibaki completed his inaugural address, violence began to spread across the country.¹⁷ ODM rejected the results and refused to acknowledge Kibaki as the legitimately elected President of Kenya.¹⁸ The Government swiftly ordered a ban on live broadcasts in the middle of an ODM press conference.¹⁹

Election observers and monitoring groups expressed unease over the election results. In a statement released on the day of Kibaki’s inauguration, Alexander Lambsdorff of the European Union monitoring group – the largest international presence during the elections – voiced concerns that the ECK ‘had not succeeded in establishing the credibility of the tallying process to the satisfaction of all parties and candidates in the presidential race.’²⁰ Lambsdorff’s remarks called into question the accuracy of the results.²¹ On 31 December, the day after Kivuitu’s announcement, f...

Table of contents

• Cover
• Title
• Copyright
• Dedication
• Contents
• List of abbreviations
• Introduction: the responsibility to protect and prosecute
• PART I The responsibility to protect
• PART II The responsibility to prosecute
• Conclusion: from protection and prosecution to protection from prosecution
• Bibliography
• Index