In the aftermath of the 2007 general elections in Kenya, widespread violence erupted. Subsequent inquiries by various commissions concluded that serious human rights violations, some of which amounting to crimes against humanity, had been committed, and that Kenya was duty-bound to investigate, prosecute and punish those responsible. This chapter describes the various aspects of the violence, and analyses the findings and recommendations of such inquiries, the main focus being the nature of the ensuing crimes and the agreed road map for domestic criminal accountability. It shows that the attempts to create a special tribunal for Kenya, which was at the core of the aforementioned road map, failed, and that such a failure resulted mainly from the lack of a political will at the domestic level. Most of the political elite favoured impunity, thereby frustrating the initiatives to implement the road map. However, the perception of the Kenyan civil society organizations and ordinary citizens remained that the crimes must not go unpunished, and that to achieve this, the masterminds of the violence, mostly politicians, must be prosecuted by an externally controlled judicial process, preferably the ICC.

3.1 Introductory Remarks

Kenya’s fourth multi-party general elections were held on 27 December 2007.¹ Three presidential candidates, namely Mwai Kibaki, Raila Odinga and Kalonzo Musyoka, commanded significant popular support,² mostly from their respective ethnic communities.³ The management of the electoral process was entrusted to the then Electoral Commission of Kenya⁴ whose members had been appointed by the President.⁵ As it prepared to manage the 2007 elections, the electoral commission had significantly lost the confidence and trust of many Kenyans.⁶ This mistrust resulted partly from the fact that President Kibaki, who himself was not only a candidate in the elections but also a leader of a contesting political party, had a de jure discretion in appointing the members of the commission.⁷ Therefore, even prior to the election date, scepticism and suspicion had already started to mount.

3.2 The Violence

3.2.1 Immediate Trigger

Prior to the election date, during the campaigns, some isolated incidents of violence had occurred, which reportedly claimed the lives of 70 people and displaced 2,000 others.⁸ But the “post-election violence” per se commenced on 30 December 2007, the day on which the Kenya Electoral Commission announced Mwai Kibaki the winner of the just concluded presidential election.⁹ Following this announcement, tensions arose, as allegations emerged that there had been large-scale rigging of the election, mostly levelled against the Party of National Unity (PNU), Kibaki’s party alliance.¹⁰

Two main factors stirred the tensions. The first factor was the controversy contained in the utterances of the Chairman of the electoral commission, Samuel Kivuitu. He declared publicly that although it was he who had announced the presidential results, he “could not say for sure if Kibaki had won fairly”.¹¹ He said that he announced the results “under pressure”¹²; and that he did not have “full control” of the electoral commission.¹³ The second factor that intensified the tensions is the reports of different domestic and international official election observers. These observers stated categorically that the presidential vote counting and tallying processes were flawed or had been tempered with.¹⁴ As a consequence, the general public also perceived the whole presidential election as dishonest.¹⁵ As part of this uproar, different demands and calls were made, including, for example, calls for a ballot re-count.¹⁶ Also, there was a demand by the Kenya Law Society (Bar Association) that Kibaki should step down immediately for lack of legitimacy.¹⁷

Somehow Odinga’s party, the Orange Democratic Movement (ODM), which had lost the election marginally, capitalized on the allegations made by these neutral observers to justify and consolidate its own claim that its victory had been “stolen”. The Kenyan Constitution had a clear legal mechanism which could be used to challenge the announced presidential results in the High Court,¹⁸ but the ODM denounced this mechanism publicly, alleging that the existing judiciary was not capable of rendering “impartial justice”.¹⁹ Instead, the ODM resorted to a “mass action” strategy, envisioning protests and demonstrations country wide. As part of this strategy, they also threatened to swear in Raila Odinga as the “people’s president” if Kibaki did not agree to a re-run.²⁰

These events led to confrontations between the supporters of the two parties, which escalated into ethnic clashes that plunged a big part of the country into the bloody violence.

3.2.2 Extent, Organization and Nature

The extent and magnitude of the physical violence was formidable. The violence took the form of attacks on civilians, involving acts which were prima facie crimes under the laws of Kenya. Official figures indicate that 1,133 people were murdered, 3,000 were raped and 350,000 others were internally displaced. Moreover, there were 3,561 incidents of grievous bodily injuries and 117,216 incidents of destruction of properties, including 41,000 houses.²¹ Six provinces, namely Rift Valley, Nyanza, Central, Western, Nairobi and Coastal provinces, were most affected, but in varying degrees.²² About 66 % of the deaths occurred in Rift Valley, 12 % in Nyanza and 11 % in Nairobi.²³

Initially, the violence manifested itself merely as demonstrations to protest against the results which had just been announced. This was partly the immediate response to the “mass action” strategy called for by Odinga’s party.²⁴ As such, it involved either confrontations between PNU and ODM demonstrators, or between the demonstrators of these two parties and the Kenyan police, for example, in the Nairobi slums, Kisumu and Nakuru.²⁵

However, subsequently, the violence soon acquired a pattern of massive attacks and retaliatory attacks directed against specific groups of people or their properties, the basis being, inter alia, victims’ real or perceived political inclination, or their regional or ethnic origin or affiliation. This included, for instance, prior issuance of warnings to the victims; mobilization, acquisition, transportation and distribution of weapons;²⁶ barricading of roads in order to identify, kill or generally attack travellers from the “enemy” communities;²⁷ and taking of oath by youths to fight and kill, which oath was administered by tribal elders.²⁸ In some areas, such as Rift Valley, there was, allegedly, a prior marking or identification of specific homes and premises belonging to non-Kalenjins. The prior identification aimed at ensuring that the subsequent unleashing of attacks would only be directed against the properties of the “enemy” communities (non-Kalenjins) in that area.²⁹

The underlying cause of the tribal violence was a clear nexus with long-time unresolved tribal land issues and negative ethnicity which had always been used by politicians to incite more divisions.³⁰ It was also fuelled by the general perception that since independence certain ethnic communities had been marginalized in various aspects because, among other things, they had not had their tribesman to lead the country. For instance, in the Rift Valley Province, a stronghold of the ODM during the 2007 elections, the violence targeted the “unwanted” communities, the Kikuyu (Kibaki’s tribe) and other non-Kalenjin communities or groups, which were or were perceived to be PNU supporters.³¹ Allegedly, the local political and traditional leaders, who were partly interested in settling their communities’ long-standing grievances pertaining to land and other real and (or) perceived discrimination against the targeted victims, were largely involved.³²

In retaliation, in the Central Province and Nairobi, which were PNU’s strongholds, the Kikuyus, through their militia gang, Mungiki, attacked the Luos (Odinga’s tribe) and Kalenjins, who were or were perceived to be ODM supporters.³³ Similarly, the armed Mungiki carried out attacks in Nakuru against “enemy” communities, inter alia, by beheading Luo men or forcefully circumcising them by using pangas and broken bottles.³⁴ In preparation for these attacks, prior plans had reportedly been in place, including one for allegedly recruitment of 300 new members into the Mungiki specifically for this task. Moreover, intelligence reports revealed that local leaders and Kikuyu businessmen in Nakuru had conducted fund-raising meetings to raise money for financing the revenge or attacks against the Luo, Luhya and Kalenjin.³⁵

Not all atrocities in this violence resulted from civilians attacking fellow civilians. The role of the police during the violence is noteworthy. It has been reported that, generally, the role of the police in this respect oscillated between being praiseworthy and blameworthy. For example, it is said that in Rift Valley, the outbreak of the violence was so sudden that it caught the police “totally unprepared”, and that they were consequently “overwhelmed” by the number of Kalenjin attackers.³⁶ The reaction of the police in this area has been described as “chaotic”—one in which some police officers joined the attackers, while others “bravely saved lives”.³⁷

However, evidence points to the police being implicated in some of the atrocities. It is common knowledge that the principal function of the police in any jurisdiction is to ensure the safety of citizens and their properties. On the contrary, some of the members of the Kenyan police force are accused of having participated directly in the commission of crimes during the violence by, inter alia, using excessive force. They also allegedly participated by omission, which indirectly encouraged the civilian perpetrators to commit the atrocities.³⁸ As it has been rightly noted, this has cast doubt on the contention that “the post-election violence was a citizen-to-citizen violence”.³⁹

For example, the Waki Commission (see infra Sect. 3.4.1) found that about 80 % of all deaths through gunshots in Nyanza and Western Provinces were caused by the police.⁴⁰ Although there were claims that guns had been acquired and distributed to the ordinary citizens for the purposes of the violence, the Commission concluded that country wide, all recorded gunshots leading to deaths or injuries were reported to have come from the police.⁴¹ Members of the police force were also allegedly involved directly in sexual violence, 26 % of all reported rape cases against women having been allegedly committed by police officers.⁴²

Furthermore, both Human Rights Watch and the Waki Commission made three serious allegations against the police in connection with the post-election violence. First, it is alleged that there was an unofficial “shoot to kill” policy that was being implemented; second, that there was a manifestation of politicized commands which entailed, inter alia, non-interference whenever pro-government mobs committed crimes against the opposition (suggesting that the leadership of the police force was pro-PNU); and third, that there was “inaction” on the part of the police whenever complaints from victims were received in Molo, Naivasha and Eldoret, where the police allegedly sided with the perpetrators.⁴³ Allegedly also, the police did not take any pre-emptive action in Nakuru, even though they had prior information of some planned attacks.⁴⁴ In the Coastal province, the police allegedly engaged in a kind of a “loot-but-don’t-kill policy”, inferred from their failure to intervene, allegedly even when they were “clearly available and present”.⁴⁵

All the atrocities committed during the post-election violence were indisputably shocking and horrendous. However, some specific incidents that occurred have been referred to as “most tragic” or “most terrifying”, while others have specifically been most cited in the literature or widely reported by the media. This is due to the gruesome manner in which these particular incidents were carried out, the number or type of victims involved, etc.

One such incident happened in Kiambaa area in Rift Valley province. On 31 December 2007, between 200 and 3,500 armed Kalenjin members raided and torched the Kiambaa settlement area in Eldoret, predominantly inhabited by Kikuyus. The residents were forced to flee. Some of them sought refuge in a church building in the locality, the only place they considered safe in the circumstances. On New Year’s Day 2008, the raiders set the church on fire. About 35 people, mostly women and children, died in the fire, 50 were severely wounded, and seven others, who tried to escape, were hacked to death.⁴⁶ A similar incident happened on 27 January 2008 in Naivasha. Some organized members of the Mungiki, targeting Luo properties, burnt a house belonging to a Luo in which 19 people, including women, children and two infants, died.⁴⁷ Another incident involved a catholic priest, Michael Kamau (a Kikuyu), who was killed by Kalenjin attackers on 26 January 2008 at a road block. The priest was travelling from Nandi to Nakuru and on the way helped two persons who were fleeing the violence by giving them a lift in his car.⁴⁸

There were many other well-documented incidents of a similar nature that involved shocking civilian-to-civilian violence.⁴⁹ But what is indisputably clear is that this violence was “more than a mere juxtaposition of citizen-to-citizen opportunistic assaults”. Rather, it entailed coordinated or organized attacks on civilians “based on their ethnicity and political leanings”.⁵⁰ Thus, the ethnic or political affiliations of both the perpetrators and the victims mattered.

3.2.3 Incitement to Violence

Various incidents and statements that were prima facie incitement to violence were reported, mostly in the Rift Valley and Central provinces. Similarly, attempted ethnic cleansing (see infra Sect. 3.4.3.1) was reported. In the Rift Valley province, whose original inhabitants are Kalenjins, the Kikuyus and non-Kalenjins in general were (still are) viewed as “invaders” on the land.⁵¹ Among other reasons, most Kalenjins in this area supported the ODM in the 2007 elections apparently believing that its victory would enable them reclaim their “stolen” land.⁵² As a result, hate speech from local politicians, tribal leaders and a section of the media dominated against the “alien” tribes in the area, mostly against the Kikuyu. The Kalenjin local leaders allegedly told their people to “remove the roots”, and that they had “a snake (Kikuyus) to get rid of”.⁵³ Allegedly, high-profile ODM leaders, including Raila Odinga and William Ruto, once asked the Kalenjin community to remove all “madoadoa” (stains) from “Rift Valley”.⁵⁴

One should not at all ignore the role of vernacular radio stations (broadcasting in tribal languages) in inciting the violence. Arguably, their role could be similar to that of the Kigali-based Radio, Télévision Libre des Milles Collines, which was used in inciting the Hutus against the Tutsis during the Rwandan genocide of 1994.⁵⁵ Reference to vernacular radio stations here excludes the mainstream national media, which comprise newspapers, radio and television stations broadcasting in English and Kiswahili, Kenya’s official languages. This category of media, the English and Kiswahili media, is usually not aimed for listeners or readers from one specific ethnic group or region. Thus, media in this category has been absolved from accusations of any negative role in the violence.⁵⁶

The role of four vernacular radio stations, namely KASS FM (Kalenjin station), Inoor and Kameme (Kikuyu stations) and Lake Victoria FM (Luo station), was particularly most notorious in spreading the hate speech. These stations did not necessarily disseminate hate speech directly through their presenters. Rather, they are blamed for having indirectly sanctioned or condoned the hate speech by recklessly or intentionally failing to prevent their guests or calling listeners from doing so.⁵⁷ For example, KASS FM is accused of having aired several appeals by Kalenjin callers carrying connotative implications for “people of the milk” (the Kalenjin) to “cut grass” (i.e. clear the land by removing the Kikuyus) and “reclaim our land”.⁵⁸ In its call-in programmes, callers also referred to the Kikuyus in the Rift Valley province as “settlers”, “mongoose [that] has come and stolen our chicken”; and also talked about the need to “get rid of the weeds”. The Luo station, Lake Victoria FM, is alleged to have played a song with a metaphorical reference to the “leadership of baboons”, insinuating the leadership by Kikuyus (Kibaki). Kameme FM on its part played a derogatory Kikuyu song about “the beasts from the west”, connoting the tribes from Western and Nyanza provinces, including Luos.⁵⁹

Other means were also used to disseminate hate speech and incitement to persecute the targets. For example, text messages and leaflets were distributed in Western Province urging all the “Mount Kenya mafia”⁶⁰ to leave the area. One quoted leaflet read:

Notice to all landlords. Please take note that no Mount Kenya Mafia is your tenant lest you face the consequences. Avail quit notices to them immediately with no hesitation. Comply immediately!⁶¹

A text message which allegedly circulated among the Kikuyus in Nairobi in mid-January 2008 incited retaliatory attacks. It partly read:

We say no more innocent kikuyu blood will be shed. We will slaughter them right here in the capital city. For justice, compile a list of all Luos and Kaleos [slang for kalenjins] you know at work, your estate, anywhere in Nairobi, plus where and how their children go to school. We will give you a number to text this info.⁶²

It is believed that the hate speech so disseminated partly contributed and shaped the pattern of the violence in various parts of Kenya whereby the incited ethnic groups targeted each other.

3.3 Mediation Process

In order to stop the humanitarian crisis in Kenya, the African Union (AU) brokered a mediation process⁶³ through the Panel of African Eminent Personalities, under the chairmanship of the former UN Secretary General Kofi Anan.⁶⁴ On 29 January 2008, the Panel managed to engage the PNU and ODM in this process which was carried out within a framework called the Kenya National Dialogue and Reconciliation (KNDR). This initiative entailed, inter alia, a series of negotiations and agreements aimed at, first and foremost, implementing an immediate “ceasefire” before setting a long-term programme to secure lasting peace, stability, justice and reconciliation.⁶⁵ To this effect, on 1 February 2008, the negotiating parties arrived at the annotated agenda items and the timetable for implementation,⁶⁶ and subsequently, issued public Statements on specific agreed measures to be taken on each agenda.⁶⁷ As part of the Dialogue, three possibilities, namely a court petition to challenge the results, a ballot re-count and a rerun, were discussed, but were all dismissed as being unsuited in the circumstances to resolve the disputed presidential results.⁶⁸ Since the bone of contention was known to be the fight for political power, the mediators suggested a political compromise as an immediate solution to achieve “ceasefire”. As part of this compromise, the PNU and ODM agreed to let bygones be bygones—to leave the presidency to Mwai Kibaki, regardless of the controversy surrounding his victory, and work together in a coalition government.⁶⁹

The agreement on the formation of a coalition government was signed by Raila Odinga and Mwai Kibaki on behalf of their parties on 28 February 2008.⁷⁰ The agreement entailed two things: First, they agreed on the amendment of the existing Kenyan Constitution to create the new posts of Prime Minister and two Deputies.⁷¹ Second, they also agreed that the power-sharing deal was only a temporary arrangement⁷² whose aim was to create a suitable environment for the implementation of the other agreed mechanisms aimed at achieving lasting justice, healing and reconciliation.⁷³ On the basis of this understanding, the coalition government was formed by amending the Constitution through the National Accord and Reconciliation Act of 2008.⁷⁴ Raila Odinga became its Prime Minister while Mwai Kibaki remained President.

3.4 Inquiries into the Violence and Road Map for Criminal Accountability

3.4.1 Commission of Enquiry into the Post-Election Violence

As part of the Kenya National Dialogue and Reconciliation negotiations, on 4 March 2008, the leaders of the coalition government agreed on the formation of an independent Commission of Inquiry into the Post-election Violence.⁷⁵ The commission was appointed accordingly,⁷⁶ and on 23 May 2008, three commissioners were appointed to work under the chairmanship of Kenyan Court of Appeal Judge, Philip Waki.⁷⁷ The commission (hereafter “Waki Commission”) was mandated to investigate the 2007–2008 post-election violence and, as part of its broad mandate, to recommend measures aimed at “bringing to justice the individuals who committed criminal acts during the violence”.⁷⁸ Being a quasi-judicial body, the commission was also empowered to summon any person to testify on oath or to bring along any document, and to hold public or private hearings.⁷⁹ The commission took an oath of office to commence its work officially on 3 June 2008, compiled and published its final report (“Waki Report”) on 15 October 2008.

3.4.2 Other Inquiries

There are other inquiries into the post-election violence which were conducted independently of the inquiry by the Waki Commission. Such inquiries mattered to the Waki Commission because, according to its terms of reference, the Waki Commission could (as it actually did), rely, inter alia, on the findings of “other inquiries” to corroborate its own findings.⁸⁰

One such inquiry was conducted by the Kenya National Commission on Human Rights, an autonomous statutory body⁸¹ which acts as a watchdog over the government in furtherance of the protection and promotion of human rights in Kenya.⁸² One of the statutory mandates of the Kenya National Commission on Human Rights is “to investigate, on its own initiative or upon a complaint made by any person or group of persons, the violation of any human rights”.⁸³ The inquiry into the post-election violence was conducted pursuant to this mandate, and was conducted simultaneously with that of the Waki Commission. A detailed final report was published on 15 August 2008, 2 months prior to that of the Waki Commission.⁸⁴

Two other important inquiries into the violence were conducted under the auspices of the United Nations (UN). One such inquiry was that of the United Nations Office of the High Commissioner for Human Rights (UNHCHR), which looked into the violations of human rights in Kenya committed during the post-election violence. The inquiry was conducted during the currency of the violence, from 6 to 28 February 2008, and a final report was published accordingly.⁸⁵ Another UN-mandated inquiry was conducted by the UN’s fact-finding mission between 16 and 25 February 2009, 1 year after the violence. It was conducted by the UN’s Special Rapporteur on Extrajudicial Summary and Arbitrary Executions, Philip Alston. The scope of this inquiry covered, but extended beyond, the post-election violence. It also covered the killings by the police and the violence in the Mount Elgon District. The report of this inquiry was published on 26 May 2009.⁸⁶

Lastly, Human Rights Watch (HRW) conducted an inquiry into the violence through two missions between January and February 2008, in which 200 people, including the victims, witnesses, perpetrators, the police, politicians and other stakeholders, participated. A consolidated report was published on 16 March 2008.⁸⁷

3.4.3 Findings of the Inquiries: Were Crimes Under International Law Committed?

The inquiries never hesitated to conclude outrightly that crimes under the domestic laws of Kenya had obviously been committed. What was not so obvious, however, was whether crimes under international law had also been committed. The following subsections present the considerations and findings of these inquiries with respect to the three core crimes of genocide, crimes against humanity and war crimes.

3.4.3.1 Genocide

When the post-election violence ended, some local and international commentators confusingly made reference to “genocide” as though it had just occurred in Kenya.⁸⁸ The Waki Commission, however, did not dwell on this subject at all. In fact, even the word “genocide” does not appear anywhere in the Waki Report. On its part, the Kenya National Commission on Human Rights made a specific inquiry into this matter and reached an unequivocal and non-contradictory conclusion that genocide did not occur.⁸⁹ However, both the Waki Commission and the Kenya National Commission on Human Rights made a finding that attempted “ethnic cleansing” took place in Kenya, for example, in Rift Valley.⁹⁰

The literature correctly suggests that the current social relations among different communities in Kenya make the risk of genocide against an ethnic group very high.⁹¹ This reality notwithstanding, those who made reference to “genocide” in the context of the post-election violence in Kenya confused the two related but different notions of “genocide” and “ethnic cleansing”. The difference between these two notions lies, inter alia, in their nature and status under international law. While genocide as such is a crime under international law, ethnic cleansing is not. In fact, the latter is not even a legal concept yet, even though it is becoming increasingly common. In terms of definition, “ethnic cleansing” refers to acts or omissions whose aim is to render an area “ethnically homogenous by using force or intimidation to remove from a given area persons of another ethnic or religious group”. More specifically, ethnic cleansing involves:

A purposeful policy designed by one ethnic group to remove by violent and terror-inspiring means the civilian population of another ethnic group or religious group from certain geographical areas. To a large extent, it is carried out in the name of misguided nationalism, historic grievances and a powerful driving sense of revenge.⁹²

Going by the definitions above, and in view of the patterns of events during the post-election violence, one can agree to the contention that ethnic cleansing happened or was at least attempted in some parts of Kenya, especially in the form of attacks and forceful removal of the non-Kalenjins from Rift Valley. Apparently, the purpose of these attacks was twofold: (i) to create a homogenous voting bloc in support of the candidates from the respective ethnic groups; and (ii) to force the members of the targeted ethnic groups (considered as land “invaders”) to leave Rift Valley, so that the Kalenjins could exclusively occupy their ancestral land. But as the Kenya National Commission on Human Rights stressed, there is no indication whatsoever that the attacks were done with a genocidal intent. ⁹³ That is to say, for that conduct to have qualified as “genocide”, the attackers must have committed the criminal acts with the “the intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such”.⁹⁴ This intent cannot be established with regard to Kenya.

In conclusion therefore, it can be stated that, prima facie, the attackers’ conduct, which amounted to attempted ethnic cleansing, could possibly qualify as crimes against humanity. It, however, does not fulfil the legal requirements for genocide. Therefore, as far as Kenya’s post-election violence is concerned, the crime of genocide does not merit further consideration.

3.4.3.2 Crimes Against Humanity

Unlike genocide, crimes against humanity have received a deserved attention with regard to Kenya’s post-election violence. Barely a week into the violence, by 3 January 2008, the then Kenya’s Attorney General, Amos Wako, had already formed an opinion that until then the violence had been “very close to … crimes against humanity”.⁹⁵ Moreover, the findings from the aforementioned inquiries on whether crimes against humanity happened in Kenya are overwhelmingly in the affirmative, but are not necessarily very straightforward.

Having scrutinized the legal requirements for crimes against humanity, the Kenya National Commission on Human Rights made two findings as regards the crime. On the one hand, it concluded that the criminal acts committed during the post-election violence might not qualify as crimes against humanity under the ICC Statute, because according to the Statute, such acts must have been committed as part of “state or organizational policy”.⁹⁶ The commission was unable to conclude affirmatively whether the acts committed during the violence would meet this definitional threshold requirement.⁹⁷ On the other hand, the commission concluded affirmatively that the acts qualified as crimes against humanity under customary international law, because under customary law, crimes against humanity do not necessarily require a link to a “state or organizational policy”⁹⁸ (cf. infra Sect. 6.4.2).

On its part, the Waki Commission took a more cautious approach. First, unlike the Kenya National Commission on Human Rights, the Waki Commission did not expressly make separate conclusions about crimes against humanity under the ICC Statute and under customary international law. Generally, the Waki Commission impliedly found that there was a strong indication that crimes against humanity had been committed, although it refrained from positively asserting so solely on the basis of the evidence it had gathered.⁹⁹ It stated as follows:

The evidence the Commission has gathered so far is not, in our assessment, sufficient to meet the threshold of proof required for criminal matters in this country: that it be “beyond reasonable doubt”. It may even fall short of the proof required for international crimes against humanity.¹⁰⁰

Despite the finding above, the Waki Commission went on to suggest affirmatively in one of its main recommendations that the prosecution of crimes, “particularly crimes against humanity relating to the 2007 General Elections in Kenya”, must be carried out.¹⁰¹ As it stands, this recommendation does not necessarily contradict the finding of the commission reproduced in the paragraph quoted above. For critics could argue that if, in the first place, the commission was not even sure whether crimes against humanity had been committed, why then did it go on to recommend emphatically that they be prosecuted? But one has to note that the only thing the commission suggested in the paragraph quoted above is that the evidence it had gathered might not be sufficient as proof beyond reasonable doubt, which is the evidentiary standard required for a conviction in a criminal trial.¹⁰² Thus, the Commission was only being cautious and taking cognizance of the fact that a proper criminal trial would require a very high threshold of evidence. But by recommending concrete measures for prosecution of “crimes against humanity” as such committed during the post-election violence, the Commission sent the clear message that on the basis of its inquiry there existed all reasonable grounds for it to believe that such crimes had been committed.

All other literature reviewed generally finds affirmatively that the atrocities committed in Kenya do qualify as crimes against humanity. But at this point, it is worthy stating that whether they qualify as such under the ICC statute or under international customary law is not very relevant: What is more relevant is that whatever their nature, they must not go unpunished. For that reason, crimes against humanity are further dealt with in Chap. 6.

3.4.3.3 War Crimes

There have been allegations, especially by Human Rights Watch, that war crimes were committed in Kenya, specifically in Mount Elgon district. On that basis, Human Rights Watch has consistently called for domestic and ICC investigations and prosecutions of the crimes, stressing that violence that happened in Mount Elgon district “shares many of the hallmarks of the post-election violence”.¹⁰³ Human Rights Watch even published a special report entitled “war crimes in Kenya’s Mount Elgon.”¹⁰⁴ It is alleged that the Kenyan army and a militia called the Sabot Land Defence Force (SLDF) committed “war crimes” during a “fighting” in this area.¹⁰⁵ Human Rights Watch alleges that:

Since the beginning of the joint army-police operation in March 2008, fighting in Mt. Elgon appears to have risen to the level of an internal armed conflict under international humanitarian law (the laws of war). This law is applicable in situations of armed conflict that rise above internal disturbances and tensions such as riots or sporadic acts of violence. Relevant law includes Article 3 common to the 1949 Geneva Conventions and customary international humanitarian law.¹⁰⁶

As an indispensable legal element, war crimes require a nexus with an armed conflict of either an international or non-international character.¹⁰⁷ The paragraph reproduced above is an attempt by Human Rights Watch to establish that nexus. But as the paragraph clearly shows, the alleged violence in Mount Elgon district might have acquired the character of an internal armed conflict only “in March 2008”. It is noteworthy, however, that in its broad context, the violence in Mount Elgon occurred between 2006 and June 2008. It thus started before the 2007 elections and continued even after the official “ceasefire” of the ensuing violence. As such, the Mount Elgon violence partly overlapped with the 2007–2008 post-election violence, specifically between December 2007 and February 2008. In other words, although the violence in Mount Elgon was partly subsumed in the post-election violence, the war crimes alleged by Human Rights Watch, assuming they occurred, were committed after 28 February 2008, which is to say that they fell outside the defined time frame of the 2007/2008 post-election violence.

The foregoing facts explain why the Waki Commission did not make any inquiry into or finding on war crimes. In fact, like the case is for the crime of genocide, the expression “war crimes” does not appear anywhere in the Waki Report. Apparently, this is due to the fact that the Waki Commission did not consider the violence in Mount Elgon as part of the “post-election violence” per se which it was specifically mandated to investigate. On its part, the Kenya National Commission on Human Rights stated that it decided not to inquire into war crimes, because “no credible allegations to that effect were ever made in relation to the post-election violence”.¹⁰⁸

Therefore, for purposes of the defined time frame for Kenya’s post-election violence, i.e. 30 December 2007 to 28 February 2008, war crimes may be irrelevant. However, the violence in Mount Elgon will be revisited later in this book (see infra Sect. 6.3.3) because of its magnitude and in connection with the jurisdiction of the ICC. Here, the focus will go beyond the time frame of the post-election violence, in view of the broad and general temporal scope of ICC’s investigation into the Kenya situation.

3.4.4 Agreement and Recommendations Pertaining to Criminal Accountability

The need and call for the prosecution of those who committed crimes during the post-election violence in Kenya permeates the literature. It emerges as the number one preferred accountability mechanism in comparison with other options such as a truth commission, reparations and amnesties, although these accountability mechanisms are not seen as mutually exclusive. Theoretically, prosecutions in the Kenyan context would serve two purposes. The first purpose is deterrence—to prevent similar violence in future. The second purpose is retribution—to break the tradition of impunity, especially for crimes associated with the political elite or the rich, who have previously been considered “too powerful” for the domestic courts to dare hold accountable for wrong doing.

During the mediation process, it was generally agreed that the criminal accountability issues would be determined according to the recommendations of what came to be the Waki Commission. The Waki Commission recommended that, first and foremost, domestic prosecutions of all the persons who took part in the organization, planning and direct perpetration of the violence must be done immediately after publishing its findings. To achieve this, the Commission specifically proposed an immediate creation of a Special Tribunal for Kenya (hereafter “Special Tribunal”) that would “seek accountability against persons bearing the greatest responsibility for crimes, particularly crimes against humanity, relating to the 2007 General Elections in Kenya … through the investigation, prosecution and adjudication of such crimes”.¹⁰⁹ The Commission also proposed that the envisioned Special Tribunal make use of “all investigative material and witness statements and testimony collected and recorded” by the Commission for further investigations and prosecutions.¹¹⁰

It was recommended that the proposed structure and organization of the envisioned Special Tribunal be that of a “hybrid” nature. As such, it would entail an international component by way of inclusion of non-Kenyans in the positions of senior investigation and prosecution staff as well as judges.¹¹¹ In principle, it was agreed that the proposed Special Tribunal would apply the domestic laws of Kenya to prosecute the perpetrators of the alleged crimes. In order to make sure that the domestic legal framework was adequate for this purpose, the Waki Commission further proposed that the process of domestication of the ICC Statute, which had commenced before the violence but not completed, be fast-tracked so that the envisaged International Crimes Act could be applied retrospectively by the Special Tribunal.¹¹²

Moreover, as a prerequisite for effective investigation, prosecution and adjudication of the post-election violence cases, the Waki Commission proposed that several other legislative enactments be made in order to facilitate the work of the contemplated Special Tribunal. Firstly, it was recommended that potential witnesses must be assured of their protection through full utilization of Kenya’s Witness Protection Act of 2006¹¹³; secondly, that the Freedom of Information Bill be drafted and enacted into law in order to facilitate full access to information by state and non-state actors, especially if such information might lead to arrest, detention and prosecution of the perpetrators¹¹⁴; and thirdly, that the existing Constitution of Kenya of 1963 be amended to entrench the Special Tribunal and give it constitutional legitimacy.¹¹⁵

The most potent recommendation of the Waki Commission was the one pertaining to the enforcement of its recommendation on criminal accountability. There are all indications that this specific recommendation was given with the view to ensuring that the Kenyan government would not view the report of the Waki Commission as yet another museum piece; or that the government would not give it yet another business-as-usual treatment. The reason for this observation is that when giving the recommendation, the Waki Commission was fully aware, as the Commission itself indicated, of the numerous previous similar reports and recommendations by other commissions of inquiry which had been disregarded and archived by the government without any implementation (see supra Sect. 2.5.3). The Waki Commission was, therefore, aware that in all those cases the government had deliberately chosen impunity in lieu of both criminal and political accountability.¹¹⁶

In order to circumvent this predicament which could in turn render its work nugatory, the Waki Commission cleverly fixed strict deadlines for the implementation of the recommendations, specifically those pertaining to criminal accountability of the perpetrators bearing major responsibility for the alleged crimes. Accordingly, an agreement on the formation of the Special Tribunal would be signed by the parties to the Agreement on National Accord and Reconciliation “within 60 days of the presentation of the Report of the Commission … to the Panel of Eminent African Personalities or the Panel’s representative”. Then a statute for the Special Tribunal would be enacted and put to effect “within further 45 days after the signing of the agreement”. Lastly, the date of commencement and functioning of the Special Tribunal would be determined “within 30 days” after the statute of the Special Tribunal came to effect.¹¹⁷

The Commission articulated unequivocally the consequences that would flow from non-compliance with these strict deadlines. It stated:

If either an agreement for the establishment of the Special Tribunal is not signed, or the Statute for the Special Tribunal fails to be enacted, or the Special Tribunal fails to commence functioning as contemplated …, or having commenced operating its purposes are subverted, a list containing names of and relevant information on those suspected to bear the greatest responsibility for crimes falling within the jurisdiction of the proposed Special Tribunal shall be forwarded to the Special Prosecutor [sic] of the International Criminal Court. The Special Prosecutor [sic] shall be requested to analyze the seriousness of the information received with a view to proceeding with an investigation and prosecuting such suspected persons.¹¹⁸

President Mwai Kibaki and Prime Minister Raila Odinga signed the agreement for the implementation of the recommendations of the Waki Commission on 16 December 2008.¹¹⁹ This agreement was not merely a toothless dog that would not bite: It was a document which was binding on the Kenyan government as part of the broad range of commitments made during the mediation process. The implementation of these recommendations was, for that matter, not an exclusive discretion of the Kenyan government or politicians, but rather, to a certain extent, externally controlled: It was partly in the hands of the AU mediation Panel, which was not only empowered but was actually prepared to invoke the intervention of the ICC if circumstances so dictated.

This arrangement earned the Waki Commission some praise. It was praised mainly for the good “innovation” that sealed all the possibilities of government opting for impunity. Bosire described it as “a coercive tactic to catalyze the domestic prosecutions”.¹²⁰ The Kenyan Daily Nation (newspaper) described it as “clever” arrangement. The paper reported that, unlike the previous commissions of inquiry which, “always appealed to suspected perpetrators of crimes and their friends to investigate and prosecute themselves”, the Waki Commission was not a waste of time and resources. The strength of the recommendation, according to the daily tabloid, lay in the fact that the Commission “went over its suspects” heads and roped in the international justice system over which the government had no control; and that in so doing, the Commission “showed astonishing ingenuity in anticipating and sealing every potential loophole that could serve as an escape hatch”.¹²¹

3.5 The Proposed Special Tribunal for Kenya: An Overview

On 28 January 2009, the Kenyan coalition government drafted the Special Tribunal for Kenya Bill in order to “provide for the establishment, powers and functions” of the envisaged Special Tribunal.¹²² In its Preamble, the Bill acknowledged the heinous nature of the crimes linked to the post-election violence.¹²³ While on the one hand the Bill reiterated that “such serious crimes should not go unpunished”, it, on the other hand, affirmed that “these transgressions [could not] be properly addressed by [the ordinary Kenyan] judicial institutions due to procedural and other hindrances”.¹²⁴ Thus, the expectation was that the envisioned Special Tribunal would be the best forum to address the crimes.

The Waki Commission had proposed that the Special Tribunal be “insulated from objections on constitutionality, and … [to] be anchored in the Constitution of Kenya.”¹²⁵ The logical explanation for this proposal is that its implementation would give constitutional legitimacy to the Special Tribunal, for if it was not entrenched to the Constitution, the Tribunal would fall outside the constitutionally recognized hierarchy of courts in the Kenyan court system.¹²⁶ This would definitely make it prone to unconstitutionality attacks.

3.5.1 Salient Features of the Tribunal

3.5.1.1 Structure, Jurisdiction and Definition of Crimes

For reasons to be presented shortly, the proposed Special Tribunal for Kenya did not materialize. However, had its bill been passed into law, the resulting Tribunal would have had the following features.

It would have consisted of six organs: A Trial Chamber, an Appeals Chamber, Prosecutor, Registry, Defence Office and Special Magistrates.¹²⁷ Its composition would have included a minority of Kenyan judges and a majority of foreign judges¹²⁸; a foreign Prosecutor and a foreign Registrar.¹²⁹ It would have exercised jurisdiction as follows: Its jurisdiction materiae temporis would have been limited to acts committed between 30 December 2007 and 28 February 2008 and, exceptionally, any act falling beyond this time frame, provided such an act had a nexus with the post-election violence¹³⁰; its jurisdiction ratione personae would have been over both natural and legal persons; it would have enjoyed primacy of jurisdiction over the ordinary national courts; and would have had exclusive jurisdiction over the crimes connected to the post-election violence.¹³¹ The Tribunal’s jurisdiction ratione materiae would have been over four categories of crimes, namely “genocide”, “gross violations of human rights”, “crimes against humanity” and “other crimes”.

Moreover, the Special Tribunal would have comprised three divisions: Special Magistrates, Trial Chamber and Appeals Chamber. The jurisdiction of the divisions would have been apportioned as follows: The Special Magistrates would have been responsible for trying the fourth category of crimes (in the list above), namely “other crimes”. This category would have comprised all “ordinary” crimes under the domestic laws of Kenya, provided such crimes fell within the jurisdiction ratione temporis of the Tribunal.¹³² The Trial Chamber would have been responsible for trying all persons bearing greatest responsibility for the first three categories of crimes, i.e. “genocide”, “gross violations of human rights” and “crimes against humanity”.¹³³ “Persons bearing the greatest responsibility” would have included those who were knowingly responsible for “planning, instigating, inciting, funding, ordering or providing other logistics which directly or indirectly facilitated the commission of the crimes.” To determine whether a person fell within this category, the Special Tribunal would have had to consider “the leadership role or level of authority or decision-making power or influence of the person concerned and the gravity, severity, seriousness or scale of the crime committed”.¹³⁴ Apart from its general appellate jurisdiction,¹³⁵ the Appeals Chamber would also have had jurisdiction to review its own judgements or those of the Trial Chamber.¹³⁶

The definitions of some of the crimes were to be wider than those under customary or conventional international criminal law. For example, apart from the requirement that crimes against humanity be part of “a widespread or systematic attack against a civilian population”, the Tribunal’s definition would have further required the attack to have been done on national, regional, political, ethnical, racial, cultural or religious grounds. Neither the perpetrator’s knowledge of the attack nor a state or organizational policy would have been a requirement for the crimes against humanity tried by the Special Tribunal. Moreover, the Tribunal would have prosecuted “harassment” and “destruction of property” as individual acts constituting crimes against humanity.¹³⁷

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The Post-Election Violence and Immediate Aftermath

3. The Post-Election Violence and Immediate Aftermath