Justice for Post-Election Violence in Kenya – An Obituary


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.

About Mark Kersten

Mark Kersten is a consultant at the Wayamo Foundation, a Senior Researcher at the Munk School of Global Affairs, and a law student at McGill University Law School. He is also author of the book, 'Justice in Conflict - The Effects of the International Criminal Court's Interventions on Ending Wars and Building Peace' (Oxford University Press, 2016).
This entry was posted in International and Organized Crimes Division of Kenya, International Criminal Court (ICC), International Criminal Justice, Justice, Kenya, Kenya and the ICC and tagged , , . Bookmark the permalink.

4 Responses to Justice for Post-Election Violence in Kenya – An Obituary

  1. John Doe says:

    A political case deserves a political death. The west should not have used the ICC as a vehicle for advancing their political agenda in Kenya. Furthermore their almost unconditional support for a leader who has used, still uses and will use violence as a currency to achieve political ends is what made the cases at the hague a mockery from a certain kenyan perspective. I’m sorry for those kenyans who actually believed that the Hague court was a serious court. It turned out to just be another means of the white man to get his way in Africa since colonialism failed and post colonialism is dying because of the Chinese.
    ICC stick to justice and let the politics be. You are not particularly good at them. We can see right through you. Never the clout to charge those who commit atrocities in the west. The Americans, Brits, Germans, Canadians but when something happens in Africa, the self-righteousness is ridiculous. As Africans we should not accept a court for Africans in the Hague under the guise of an international court. Either we are all equal under the law as human beings or let it be. Africans will no longer accept to be fourth class citizens of this world. 100 years + and counting is too much for that.

    • OtishOtish says:

      What you really should be sorry about is that the victims have not seen, and will never see, justice on their own country, from their own government. And getting worked up about what happens elsewhere, or who else you think should be charged at the Hague, doesn’t do them the slightest bit of good. Lastly, a good start to what you claim for Africa would be if this statement could be first applied in Africa, by Africans, to Africans: “Either we are all equal under the law as human beings or let it be”.

  2. Does believing in justice lead to bitterness?

  3. Pingback: “Let’s Ditch War Crimes”? Let’s Not Get Carried Away with Justice Criticism and Cynicism – MEDIA HUKUM INDONESIA

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