by Rhodri C. Williams
Kenyans go to the polls next Monday in the culmination of an entire political season spent building institutional guarantees against a repeat of the appalling ethnic violence and mass-displacement that followed the country’s last elections in 2007. Prevention measures ranging from a new 2010 Constitution to a 2012 law criminalizing internal displacement have been earnestly discussed and adopted in the intervening years.
However, the breathtaking fact remains that some of the leading candidates in the current election may be responsible for the violence of the last round – and that their eventual election may be used as a pretext to effectively shield them from accountability for these crimes before the International Criminal Court (ICC).
The resulting ‘bizarre’ nature of the first debate between Kenya’s presidential candidates was captured by Mark Kersten at Justice in Conflict, who also reflected recently on the underlying question the ICC-Kenya brouhaha raises – namely whether transformative political change has supplanted individual criminal responsibility as at least the implicit primary aim of international justice.
There is certainly a case for such an approach, which arguably only transposes the consequences of the individual criminal behaviour of political leaders into the novel but expanding terrain of the state responsibility to protect (see Mark Kersten again, here). If the results of an individual leader’s acts are now recognized as giving rise to a threat to international peace and security, in other words, why should the rest of the international community sit around and twiddle its thumbs?
On the other hand, principled arguments against such an expansive view of the aims of international justice include the risk of politicization of the ICC through selective support of regime change by gatekeeper institutions such as the UN Security Council. However, beyond this concern about the tail wagging the dog, Kenya may now have usefully exposed a major practical limitation on politically transformative international justice. For example, in an otherwise highly cogent piece on the upcoming elections in Kenya on OpenDemocracy, Clare Castillejo argues for what some may view as closing the barn doors after the horses have bolted:
So what can the international community do in these final days before the polls? Firstly it must send strong signals that politicians who incite violence will face international sanctions such as asset freezing, travel bans and – where possible – prosecution. Kenya’s international partners (particularly the US, UK and the EU) and its East African Community neighbours must be prepared to speak out forcefully at the first signs of electoral fraud or organised political violence.
Got that? Politicians now hoping to elude international accountability for past electoral violence by running for elected office are to be prevented from resorting to further violence by threatening them with accountability for such acts. Is that entirely convincing? I do not mean to be facetious, and I am very concerned for Kenya, but is doubling down on a concept of accountability that has proven elusive in practice likely to be effective as a means of protection? Perhaps it will, if applied as part of a unified campaign of international condemnation. But if it does not, the result may further undermine the effectiveness of accountability as a check on such crimes.
Humanitarians are also talking prevention, but in a slightly more nuanced (some might say ambiguous) way. In research for the International Center for Transitional Justice (ICTJ) last year, I argued that the full implications of a truly rights-based approach to humanitarian action – including attribution of responsibility for crimes related to displacement and pressing for full legal remedies – went beyond what humanitarians had ever done as well as what it was reasonable to expect of them.
In this sense, rights-based documents such as the Guiding Principles on Internal Displacement represented a compromise, being entirely silent on the issue of remedies but for the inclusion of property restitution, which had already been taken on by many humanitarians as a practical precondition for achieving solutions to displacement. As I argued in a previous post:
By classifying ‘arbitrary’ displacement as a violation of international law (Principle 6), the Principles elevated the return of abandoned homes from a practical necessity (in order to achieve durable solutions) to a legal imperative (in order to redress such violations).
On the other hand, Guiding Principle 29 represented a clear post-Cold War incursion onto ground that Cold War-era humanitarians had feared to tread. The new rights-based approach implied in principle that humanitarians needed to go beyond treating symptoms in order to address the underlying causes of suffering. …. However, Principle 29 set out such measures in practice, exhorting humanitarians to engage with some of the most politically sensitive and technically complex issues encountered in the wake of ethnic conflict. In this sense, it is distinguished as the sole Guiding Principle that adopts such a boldly retroactive – and reparative – approach to past violations underlying displacement.
In a statement yesterday, the UN Special Rapporteur on IDPs, Chaloka Beyani warned of the risk of a new internal displacement crisis in Kenya. In doing so, he invoked responsibility for crimes related to displacement, but with reference exclusively to domestic law in Kenya – and no mention of the ICC:
The Presidential assent to the IDP Act in 2012, as well as the approval of a new and comprehensive IDP Policy by Cabinet in November 2012 are milestones for the country. “The IDP Act clearly obliges the Government and others to guard against violence and prevent internal displacement,” Mr Beyani noted. With the adoption of this new legislation, Kenya publicly affirmed that arbitrary displacement resulting from politically instigated violence is prohibited and constitutes an offence.
In a similar vein, the Special Rapporteur’s statement focuses almost exclusively on ‘preparedness’ for an adequate humanitarian response displacement, rather than on remedies to address violations that caused it in the past and may do so again in the future. Notably, the land and property disputes that have racked Kenya are not explicitly referenced once, Guiding Principle 29 or no. While the focus of the statement remains firmly (and arguably rightly) on immediate response to displacement, root causes are addressed only in general terms.
Root causes of past displacements have been mitigated by the new Constitution under which the elections will be held. However, challenges remain, including the slow pace of the actual implementation of the 2010 Constitution and the backdrop of the increasing ethnic tensions in the country.
It is possible to sense the wisdom of accepting what you cannot change in this approach. This in light of the second presidential debate which, as reported in allAfrica.com, focused on land dispute issues and was little less surreal, with prominent candidates repeatedly squirming out of questions regarding their own dubious holdings:
Lumumba Odenda, the national co-ordinator for Kenya Land Alliance, a lobby group on land matters, faulted the moderators of the debate for failing to ask proper follow up questions that would have compelled the candidates to divulge more information on how to deal conclusively with land issues.
Kenyatta was put to task to declare how many in acres of land his family owns and if indeed “half of land” in the country belongs to him. He denied accusations of land grabbing, saying the land his family owns was purchased through legal means.
“We shall ensure that land is used as a factor of production [and that] the National Land Commission should be left to handle the emotive issue of land in this country,” he said, refusing to divulge exactly how many acres he owns.
Odinga absolved his family from blame for the circumstances by which they acquired a Kisumu molasses plant that was initially public-owned, saying they acquired the plant through public auction.
And indeed, despite many statements of intent to deal with the land issue in Kenya after the 2007/08 violence, the signs have been far from good. BBC reports today on the effect of generations of land-grabbing on the Kenyan coast, including a new secessionist movement stirring ethnic tensions with migrants from the Central Highlands. Another BBC graphic shows how these types of tribal tensions over land and natural resources can be mapped onto much of the rest of the country, as well as how they were stoked by the last election without being fully resolved afterwards.
Similarly worrying, there has been little to indicate any intent to address even high-profile cases like the 2010 order from the African Commission on Human and Peoples’ Rights to return land taken in 1973 from the Endorois People. Apart from a 2011 report describing a government getting on with concessions on Endorois land and referring to the case as a “legal-triumph-turned fiasco”, it has been awfully quiet out there.