KNCHR was vigilant before and after the 2007 elections

Impunity does not spring from nowhere. It is fed, and when it remains unchecked it spirals into uncontrollable levels. What happened in Kenya after the 2007 General Election was unprecedented in the country’s history leading to the International Criminal Court’s intervention. The road to The Hague was not ad-hoc, but a result of many processes before and after the elections. One has to look at the context in totality to understand how, as a country, we ended up being the fifth situation before the ICC. The complexity of processes leading to where we are started as unchecked actions of impunity that went beyond control.

The impunity-lined road can be traced far back in history, but in the pre-The Hague past, the referendum campaigns of 2005 come to mind as a time accountability was sought from leaders in the manner in which they conducted themselves.

A report jointly published by the Kenya National Commission on Human Rights and the Kenya Human Rights Commission, ‘Behaving Badly-Deception, Chauvinism and Waste During the Referendum Campaigns’ documented statements of political ‘leaders’, which amounted to incitement or calls for ethnic nationalism and hatred of external ethnic groups. It also exposed abuse of public office and the misuse of public resources during the referendum campaigns. During this period, KNCHR released a ‘List of Shame’ depicting political leaders and public officials who had used inflammatory statements in their campaigns.

Perhaps if decisive action had been taken against those suspected of hate speech and incitement, the 2007 scenario may have been different. The KNCHR while calling for the prosecution of the suspects also advocated for the enactment, as a matter of national urgency, hate speech legislation, which would check unsavoury utterances that sought to demean other Kenyans. This was not done with the result that in 2007, the catastrophe that befell the country was a result of leaders heavily inciting, misleading Kenyans and planning the violence with impunity.

The KNCHR monitored the campaigns and when the violence broke out, immediately set out to investigate and document the unfolding events. Getting the information as the events unfolded was perhaps the most important intervention. The KNCHR’s report ‘On the Brink of A Precipice: A Human Rights Account of Kenya’s Post-2007 Election Violence’ was the result of this intervention.

The KNCHR had earlier been instrumental in advocating the ratification of the Rome Statute, which Kenya ratified in 2005, domesticating it later through the International Crimes Act 2010. The importance of the ratification of the Rome Statute is now clear, for without the ICC intervening, the country would have continued to run on impunity.

Post-2007 violence left a lot of complexities. The KNCHR played a big role in the development of the IDP Policy and continues to monitor their resettlement. The question of protecting witnesses presented another challenge. While responsibility of protecting witnesses lies with the Government, the Witness Protection Agency had not been operationalised. The KNCHR constituted a Witness Protection Intervention mechanism to fill the vacuum of the lack of such a system. This was more so upon receiving information of threats and intimidation of witnesses. Witnesses are central to any prosecution as they are the bearers of important evidence. The later attempted interference with this witness protection intervention caused a lot of concern but the commission has not relented in its obligations to protect deserving Kenyans in a highly delicate and sensitive intervention.

The ICC could not have intervened to deal with the suspects had the country carried out its own prosecutions. This is the essence of complementarity under the Rome Statute. The Special Tribunal of Kenya Bill was not enacted into law and prosecutions at the national level were not forthcoming.

The ICC intervention in Kenya has, however, led to a lot of restlessness at the political scene. Pronouncements around the ICC have in some instances bordered on ethnicisation of the process as some leaders try to say the ICC is targeting leaders from specific ethnic communities. This, of course, is far from the truth. Crimes against Humanity, it must be remembered, can be committed by anyone, regardless of their race, political, ethnic or religious affiliation. Any individual indicted by the ICC will bear responsibility only for their personal roles in the planning, organising or funding post-election violence and not for belonging to a particular group.

The KNCHR continues to work with partners to clear misconceptions about the ICC and disseminate clear messages on the court.