Burned houses in Mandera during post-election clashes
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Context: Kenya’s history has been marked by human rights abuses. The bloodiest chapter in recent times was the violence that swept the country after presidential and parliamentary elections in December 2007. Allegations of electoral manipulation and ethnic tensions boiled over into “fighting, riots, acts of rape and assault, and bloodshed”, according to the ICTJ. The post-election violence left some 1,100 people dead, with many more displaced. Kenya’s current President Uhuru Kenyatta and his Deputy William Ruto are among prominent figures who have been accused of involvement in the violence.

Under international pressure, the two main political parties agreed to negotiate and established an uneasy power sharing arrangement. They also agreed to establish a Commission of Inquiry on Post-election Violence (CIPEV, or Waki Commission) and an Independent Review of the Elections Commission (IREC) to investigate the crisis.

The Waki Commission and IREC completed their work in September and October 2008. Their recommendations included setting up a Special Tribunal and a Truth Commission, major police force reform and a constitutional review. A new constitution was adopted in August 2010, and there were some reforms, notably in the judiciary. But the Special Tribunal was never created, with the bill defeated in Parliament in February 2009. In response, the International Criminal Court (ICC) has taken up the Kenya situation (see below).

Transitional Justice Mechanisms

ICC: The ICC currently has only two cases open in connection with the 2007-2008 post-election violence in Kenya, although it initially summoned six individuals from different sides of the conflict. They included current President Uhuru Kenyatta, against whom charges were dropped in early 2015 following several trial delays. He would have been the first sitting president to be tried by an international criminal court. The ICC Prosecutor says cases have been hampered by lack of cooperation by the Kenyan government and witness intimidation.  

Sitting Deputy President William Ruto has been on trial since September 2013, in a joint trial with journalist Joshua Sang. The second case involves another journalist, Walter Barasa, who is wanted for witness tampering in the Ruto case. Barasa is still at large.

The ICC opened investigations in 2010, and subsequently issued summonses for six individuals suspected of crimes against humanity. The suspects, including Uhuru Kenyatta, appeared voluntarily before the Court in The Hague for confirmation of charges hearings in 2011.  On January 23, 2012, the judges declined to confirm the charges against former Industry Minister Henry Kosgey and ex-police chief Mohammed Hussein Ali. They confirmed the charges against Ruto, journalist Joshua Arap Sang, former Cabinet Secretary Francis Muthaura and Uhuru Kenyatta, and committed them to trial. On 18 March 2013, the charges against Muthaura were withdrawn.

These cases were not referred by Kenya or by the UN Security Council, but were opened on the Court’s own initiative (proprio motu), after the judges granted a Prosecutor’s request. In August 2011, the ICC confirmed its rejection of a Kenyan request to take back the cases and try them in a national court.  The ICC Appeals Court said Kenya had failed to prove that it was carrying out its own investigations.

These cases have been highly controversial not only in Kenya but also within the African Union, which called for them to be suspended. Kenyatta and his running mate Ruto were elected in the first round of presidential elections in 2013, despite ICC charges against them.

Ruto and Sang’s trial before the ICC is ongoing. They are both charged with murder, deportation or forcible transfer of population, and persecution as crimes against humanity.

The Prosecutor withdrew charges against Kenyatta in December 2014. She denounced lack of cooperation by the Kenyan government and said she did not rule out bringing charges again in future. Meanwhile Kenyatta said he felt “vindicated” and that the ICC case had been a “travesty”.

Truth, Justice and Reconciliation Commission

Whereas the Special Tribunal proposed by the Waki Commission was never set up, Kenya did set up a Truth, Justice and Reconciliation Commission (TJRC). The TJRC was set up by Parliament through the Truth, Justice and Reconciliation Act of 2008. Its mandate was to “investigate, analyze and report on what happened between 1963 and 2008 in regards to gross violations of human rights, economic crimes, illegal acquisition of public land, marginalization of communities, ethnic violence, the context in which the crimes occurred, and educate the public about its work”. The TJRC did not have the power to prosecute, but could recommend prosecutions and reparations for victims.

The TJRC started with nine members, but two of them resigned in 2010, including the Chairman. The Commissioners were both national and international, as they included three foreigners (from Ethiopia, the United States of America, and Zambia). The credibility of the Commission has been undermined particularly by the fact that its Chairman, Ambassador Bethuel Kiplagat, was himself accused of human rights abuses and initially refused to step down despite national and international pressure for him to do so.  

The TJRC was initially given a two-year mandate, which was extended three times. Its final report was not handed over to the president until May 21, 2013. In the course of its work, the Commission collected 42,465 statements and 1,828 memoranda from Kenyans and conducted public hearings all over the country.

The report contains more than 2,000 pages of findings and recommendations. The Commission divided the period covered into four distinct eras, corresponding to the four political administrations that governed the country during that time: the British colonial era (1895–1963), the presidency of Jomo Kenyatta (1963–1978), the presidency of Daniel Arap Moi (1978–2002) and the presidency of Mwai Kibaki (2002–2008). The Commission found that during all four periods the government was responsible for numerous gross violations of human rights, including torture, political assassinations, arbitrary arrest and detention, illegal and irregular acquisition of land, economic crimes, grand corruption, extrajudicial execution, sexual violence, looting and burning of property, and enforced disappearances.

The report names some senior military personnel as being involved in gross human rights violations, and recommends prosecutions. Its recommendations also include reforms of the security services, apologies from the State and the establishment of memorials. The report recommends the establishment of a reparation fund to compensate victims, and proposes a Reparation Framework. It also recommends that a special committee be set up to facilitate and monitor implementation of the recommendations and administer a reparations fund.

Implementation has been slow. However, in an unprecedented move in March 2015, both President Uhuru Kenyatta and Chief Justice Willy Mutunga apologized for historical injustices suffered by Kenyans. Kenyatta also used his State of the Nation speech to announce that his government planned to set aside 10 billion shillings (about USD 10 million) for victim reparations. He said this money would be disbursed over a three-year period.