Reconciliation in Kenya: Has the ICC helped?

By Zara Riaz  

Since its establishment in 2002, the International Criminal Court (ICC) has been paralyzed by both its image and capacity. Intended to serve as a strong mechanism to uphold international law, the Court is an independent and permanent institution that tries those accused of the most serious crimes against humanity. Yet the chorus of criticism against the ICC most commonly depicts it as a neocolonialist institution, as all 20 of its criminal investigations have been in 8 African states. Furthermore, critics argue the Court delivers an uneven application of justice, given that powerful states such as the United States, China, Israel, and Russia have not ratified the Rome Statute, the treaty establishing the ICC. Despite the fact that 34 African member states have voluntarily ratified the Rome Statute, the phenomenon of international politics where perception tends to carry greater weight than reality hasn’t spared the ICC. The Court can’t seem to shake off its anti-African bias.

The trial of Kenyan President Uruhu Kenyatta, accused of committing crimes against humanity during the post-election violence of 2007 and 2008, is currently being used by African leaders to highlight both this perceived anti-African bias and also the Court’s immense incapacity. The prosecution is afflicted by its failure to produce evidence, stating that Kenyan officials are refusing to hand over needed records and documents. Numerous witnesses have dropped out of the trial after the victims’ families were threatened or their identities made public. Judges are currently deliberating whether to dismiss or indefinitely delay Kenyatta’s case, yet neither option looks promising. Indefinitely postponing the case may infringe on Kenyatta’s right to a fair trial, and dismissing the case will undoubtedly undermine both the Court’s credibility and notions that it is possible to indict a sitting head of government.

While the Kenyatta trial highlights limitations facing the ICC, a more fundamental assessment of the Court requires also examining the overall effects of the ICC proceedings on the reconciliation process in Kenya. In other words, have the ICC proceedings regarding alleged crimes against humanity during the post-election violence truly mattered?

Many argue that the relatively free, fair, and peaceful elections in 2013 through which Kenyatta was elected have been partially the result of the deterring effects of criminal justice. Even though several lower-level politicians resorted to the rhetoric of ethnic competition during election campaigns, the main candidates (Kenyatta, Ruto, and Odinga) largely abstained from both “hate speech” and violence. On the other hand, the peaceful election of Kenyatta as President and William Ruto (also accused by the ICC of war crimes during the 2007-2008 elections) as Vice President has shattered beliefs that the ICC can isolate and marginalize its targets. Some even suggest that the ICC indictments may have facilitated their electoral victory, in a country where 35% of the population supports the Court.

The effects of the ICC’s proceedings on complementarity in Kenya also remain unclear. This principle of “complementarity” refers to the ability of the Court to positively impact domestic criminal justice systems by complementing rather than replacing them. The establishment of the International Crimes Division (ICD) of Kenya’s High Court can be viewed as one positive judicial reform resulting from the ICC’s engagement. The unit was set up to domestically deal with crimes against humanity and war crimes, with powers to try mid-level and lower-level perpetrators of the 2007-2008 violence. However, the establishment of the ICD is underpinned by questionable motivations. Many view the establishment of the ICD and other on-going judicial reforms as attempts by the Kenyan government to evade ICC proceedings rather than to strengthen the rule of law for its own sake.

Even if the ICC positively contributed to deterrence or complementarity in Kenya, the same cannot be said regarding its role in promoting restorative justice. More public attention has been given to criminal proceedings against the initial suspects including Kenyatta than to the fact that they are directly or indirectly responsible for the adverse material conditions now facing many Kenyans. Subsistence farmers haven’t been able to return to their land, victims haven’t received compensations for their situations, and many continue to suffer from ongoing physical and psychological trauma. Even if Kenyatta is convicted through the ICC, the victims that have registered for participation and possible reparations may have to wait years before receiving any compensation. The ICC has played a role in emphasizing the importance of retributive justice, but examining the situation from the perspective of restorative justice highlights the unlikelihood of the proceedings significantly impacting the material needs of the victims.

The impacts of the ICC’s involvement in Kenya on broader reconciliation efforts thus remain mixed. While the ICC proceedings may have contributed to deterring effects, seen with the relatively peaceful 2013 elections, whether the Court has the ability to serve as a long-term deterrent of future violence remains unclear. In a country where politics, patronage, and ethnicity are inextricably linked, political contestation and the mobilization of ethnicity for political gain remain triggers for political violence. Furthermore, while judicial reforms may be seen as a positive consequence of the ICC’s involvement, fierce resistance to questions of accountability remains. Above all, even if the frail case against Kenyatta doesn’t collapse, restorative justice for the victims of the post-election violence is unlikely to receive the attention it deserves.

Image Source: BBC



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