The study has analysed the historical background and domestic and international responses to the 2007–2008 post-election violence in Kenya. Its main focus has been on the criminal accountability for the crimes against humanity committed during the violence. The study was based on two legal premises. The first premise is that crimes against humanity, like the other core crimes under international law, namely war crimes, genocide and aggression, has acquired a jus cogens status, which has elevated it to a level above that of “ordinary” crimes that are usually found in most domestic criminal codes. Consequently, commission of a core crime is no longer a concern of one individual state (e.g. the state of commission) but of the international community as a whole. The second premise, which flows directly from the first, is that there is a clear consensus, a principle under international customary law, which requires that impunity for the core crimes must not be tolerated. The state on whose territory a core crime has occurred has a duty to investigate and prosecute those who bear major responsibility for the crimes. If the state of commission does not perform its duty, for example by remaining inactive, or when it is unable or unwilling to conduct genuine investigations and prosecutions in its domestic courts, then the ICC can justifiably intervene, in order to minimize the looming impunity gap (supra Sect. 1.​2). Kenya associated itself with this global consensus by signing, ratifying and domesticating the ICC Statute.

The main objectives of the study were framed in terms of four specific questions. The first objective was to locate and analyse the link between Kenya’s post-election violence and the country’s previous sociopolitical history with a view to understanding prospects and challenges that could be faced when trying to address criminal accountability for the crimes committed during the violence. The second objective was to outline and analyse the structure and implementation of the road map for criminal accountability that was agreed upon at the domestic level. This includes identifying and examining other domestic legal options (frameworks) for the prosecution of the core crimes under international law with a view to examining the extent to which Kenya has utilized the options to hold the perpetrators of the post-election violence criminally accountable. The third objective was to locate the link or interplay between retributive and restorative justice mechanisms implemented in Kenya subsequent to the post-election violence, with a view to establishing how such interplay could foster or impair the search for criminal accountability for the crimes in question. The last objective was to evaluate the ICC’s intervention in Kenya, particularly providing an extensive critical analysis of the main legal issues linked to or so far arising out of such intervention. The following are the main conclusions.

The background to the 2007–2008 post-election violence in Kenya can clearly be traced to the country’s post-colonial history. Throughout the four decades in which Kenya was under dictatorial regimes (1963–2002), the political leadership was an imperial presidency based on a single party system. These successive regimes deliberately used both tyranny and negative ethnicity, originally encouraged by the British colonialists, to consolidate power. During the dictatorial regimes of the first two presidents, Jomo Kenyatta and Daniel Arap Moi, feelings of ethnic and economic marginalization grew very strong among various communities and individual citizens who perceived or believed that people from the president’s community had more privileges than those from other communities (supra Sects. 2.​2 and 2.​3).

Since the re-establishment of multiparty democracy in 1991, the emerging political parties resorted to the formation of political (party) alliances which were (still are) mere tribal outfits and which, in most cases, were (still are) expected to champion interests of specific ethnic communities (supra Sect. 2.​4). On the basis of these unhealthy trends in the local politics, both the state and individual politicians developed a culture of creating, sponsoring or exploiting exiting criminal gangs to perpetuate ethnopolitical agendas. This constituted a catalyst and recipe for recurring electoral violence in 1992, 1997 and 2002. During such kind of violence, atrocious crimes were always committed but no one was held criminally accountable, even though various commissions of inquiry recommended so. The culture of impunity for crimes, especially those involving the political elite, became an entrenched feature (culture) in the Kenyan politics (supra Sect. 2.​5). The same factors were responsible for the 2007–2008 post-election violence which was, therefore, not a total surprise.

With the help of the AU mediation team, it was agreed in the aftermath of the 2007–2008 violence that the resulting crimes could only be dealt with meaningfully if addressed together with the historical factors that had previously divided Kenyans and which had constituted a recipe for recurring election violence (supra Sects. 3.​2–3.​4). So it was considered important that a multifaceted approach involving a combination of various transitional justice mechanisms is taken. Due to the fact that the atrocities committed seemed to have amounted to crimes against humanity, and also because they occurred at the time when the international community as a whole was against impunity for such crimes, a promising road map was put in place to ensure that perpetrators, especially those who bear major criminal responsibility for the crimes, were investigated, prosecuted and punished primarily by Kenya itself or secondarily by the ICC if Kenya failed to do so (supra Sects. 3.​4.​3 and 3.​4.​4).