The Post Election Violence In Kenya

An analysis of land and natural resource conflict as a source of political violence, focusing on election violence in Kenya.

The narratives collected by Twaweza Communications in this volume tell yet another side of the story about the violence that engulfed Kenya towards the end of 2007 and the beginning of 2008. The narratives are part of a Daraja Initiative involving media monitoring, reflections and documentation of the traumatic post-election violence period often associated with the contested presidential results of 2007. The goal of the project is to contribute to the protection of constitutional rights of all Kenyans and to the development of a just and democratic country. Because violent conflicts constitute ruptures and continuities and are often preceded by tensions over the uncomfortable co-existence of political, economic, social and cultural systems and relations of power as well as what is perceived as valuable, mobilisation for violence is driven by narratives of the legality and correctness of action such that notions of history, justice and memory are functions of narrative construction, power and authority. Narratives of violent conflict, such as happened in Kenya, are not absolute: they are contested, contradictory and incomplete. But they must be told so that the multiple voices from the citizens are heard.

3.2 The "clashes" break out

Since the historic Nuremberg Trial of 1945 an international customary law principle has developed that commission of a core crime under international law – war crimes, genocide, crimes against humanity and aggression – should not go unpunished. History shows, that when in Africa such violations occurred, especially as a result of election disputes, national and regional actors, including the African Union, resorted to political rather than legal responses. However, when crimes against humanity were alleged to have been committed in Kenya during the 2007-2008 post-election violence, a promising road map for criminal accountability was agreed upon alongside a political solution. In the spirit of this road map, the author analyzes the post-election violence in Kenya from a legal point of view. He extensively examines legal options for domestic criminal accountability and discusses both retributive (prosecutions) and restorative justice (mainly truth commission) mechanisms, being the main legal responses to the gross violations of human rights. Furthermore, he thoroughly investigates the Kenya situation before the ICC and the legal-cum-political responses to the ICC intervention in Kenya. Practitioners and academics in the field of international criminal law and related disciplines, as well as political sciences and (legal) history will find in this book highly relevant information about alternative legal approaches of the fight against and punishment of crimes against humanity, as defined under the ICC Statute.

This book explores the effect of the judiciary on the incidence of post-election violence by political actors across Africa and within African countries. It examines how variation in judicial independence can constrain or incentivize election violence among democratizing states. Using case studies and cross-national analysis, the book shows that variation in levels of judicial independence from a non-independent judiciary to a quasi-independent judiciary or from a fully independent judiciary to quasi-independent judiciary increases the likelihood of strategic use of post-election violence by non-state actors. However, the likelihood of post-election violence is significantly reduced in non-independent judiciaries or once countries' judiciaries become fully independent. The author makes the theoretical argument that, within unconsolidated states, non-state actors that view the judiciary as semi-independent are more likely to engage in post-election violence with the purpose of creating political and professional uncertainty in order to influence assertive behaviour from judges in disputed elections. Consequently, the book argues that semi-independent judiciaries or judiciaries that are neither fully controlled by the incumbent nor fully independent from the incumbent can help explain post-election violence among unconsolidated states, all else being equal. This book will be of interest to scholars of election violence, democratic politics, law and politics and African politics.

Four years after the onset of Kenya's 2007-2008 post-election violence, the government has done little to ensure justice for victims. It has failed to ensure the prosecution of perpetrators in all but a handful of the 1,133 or more killings committed during the violence, which pitted ruling party supporters and the police against armed groups linked with the opposition. Victims of rape, assault, arson, and other crimes similarly await justice. The International Criminal Court has opened cases against six high-profile suspects, but hundreds of other perpetrators of serious crimes continue to evade accountability. This report documents the difficulties faced by election violence victims in obtaining access to justice in Kenya. It identifies the principal weaknesses within the criminal justice system that have contributed to the paltry number of convictions, including police officers' unwillingness to investigate and prosecute their colleagues; the generally poor quality of investigations; weaknesses within the police prosecution system; political influence and corruption that subverts the judicial process; and the absence of an operative witness protection system. Human Rights Watch calls on the government of Kenya to establish a special judicial mechanism within the Kenyan justice system to investigate and prosecute the most serious election-related crimes. The government should also urgently fund the Witness Protection Agency and fast-track reforms to improve the quality and the independence of policing and prosecutions. Providing redress for victims of post-election violence is a requirement, not an option. Nearly four years after the violence, victims have been waiting for justice for far too long.