Champions of international accountability join with the survivors of human rights violations in Kenya to announce the premature death of justice for crimes perpetrated in the aftermath of the 2007 elections. Following the final death throes of the cases at the International Criminal Court (ICC) against William Ruto and Joshua Arap Sang, and in light of political apathy towards accountability for the 2007/08 post-election violence in Kenya, justice for those atrocities has tragically been laid to rest. The cause of death was announced as an insurmountable case of poor planning at the ICC, political apathy among powerful actors in Kenya, and diplomatic indifference amidst the international community.
Justice in Kenya led a tumultuous life. It was inspirational but flawed. It promised an end to impunity for serious violations of human rights in a country that has been riddled by periodic inter-ethnic violence. It brought together formerly conflicting segments of society. Some believe that, while its life-long mission of accountability was foiled, it helped deter political violence during the 2013 elections.
The life of justice in Kenya was cut short. But its time was not without controversy. Significant resources were spent on its achievement and, sadly, much more to frustrate its potential. It inspired debate and its fair share of disagreements. There was always more dissension than agreement among those concerned as to the most appropriate treatment necessary to achieve its mission of accountability for victims and survivors.
Justice in Kenya had many friends and supporters throughout the years, but when its back was against the wall and it became inconvenient to push for accountability, few of the actors on which justice depended, including friendly governments around the world, were willing to back its life goal of accountability for post-election violence. And despite its best efforts, as well as those of civil society match-makers, justice in Kenya regretfully could never find a suitable and committed life partner to fully support its ambitions.
Justice in Kenya’s untimely passing followed years poor health. In 2010, the International Criminal Court intervened in the name of justice in Kenya thus raising expectations that a cure to the scourge of impunity had finally been found. At the time, local authorities made clear that they would not investigate or prosecute those responsible for crimes relating to post-election violence themselves. The relevant actors seemed unified around the ICC treatment. Many, including Ruto himself, exclaimed: “Don’t be vague, go to The Hague!”
Against the backdrop of inaction and apathy within Kenyan government circles, the recourse of turning towards the ICC was widely perceived as a necessary, if experimental, treatment for justice in Kenya. It was also widely celebrated amongst the Kenyan population. However, the lethal combination of poor preparation at the Court, a bad diagnosis on the part of ICC investigators and prosecutors, the election of ICC targets into the highest positions of power as President and Deputy President of Kenya respectively, and the growing cancer of witness intimidation and political interference, the ICC partnership treatment ultimately proved futile. One by one, the cases against alleged perpetrators of crimes against humanity in Kenya collapsed. Following the final bout of ICC treatment and the resultant demise of the prosecution of Deputy President William Ruto, current Kenyan President Uhuru Kenyatta declared that this “nightmare” for Kenya was over.
The death of international justice for post-election violence has been compounded by the lack of life-support given to domestic measures for accountability in Kenya. Despite repeated proclamations that justice would be pursued in the country, no promise managed to keep justice alive. The creation of a so-called International and Organized Crimes Division, a branch of the country’s judiciary, has been repeatedly delayed. Senior officials have made it clear that, even if such a division is established, it will not investigate crimes relating to the aftermath of the 2007 elections. According to Kenyan prosecutors, of the almost 5,000 post-election violence case files, not a single one will be prosecuted. The hope for a domestic treatment to the tumour of impunity has sadly also passed away.
The death of justice for post-election violence in Kenya follows a long fight, against the odds, to achieve accountability at any level for victims and survivors. No treatment — either at the ICC, nor at the domestic or regional level, proved able to resuscitate hopes that finally the spell of impunity for post-election violence in Kenya would be a thing of the past. Justice’s passing marks a sad and disappointing day for all those touched by the life of justice in Kenya.
The passing of justice leaves many behind, most notably the victims and survivors of the post-election violence, many of whom never had a chance to see or mete justice. Yet despite diminished prospects for accountability, their will and engagement, along with that of committed civil society and maybe even some brave government actors, may one day identify the antidote that can resuscitate justice — at any level.
Justice for post-election violence in Kenya, Rest in Peace. Or, well, hopefully not.