The International Criminal Court and the Post-Election Violence in Kenya

Luis Moreno-Ocampo, chief prosecutor of the International Criminal Court(ICC) in the Hague, on December 15 requested the court to issue summonses to appear against six prominent Kenyans, including cabinet ministers Uhuru Kenyatta, William Ruto and Henry Kosgey, and Secretary to the Cabinet Francis Muthaura, former Police Commissioner Mohamed Hussein Ali , and radiobroadcaster Joshua arap Sang. Ocampo alleges that the six named individuals directed the violence that erupted in the immediate aftermath of the declaration of President Mwai Kibaki’s disputed re-election on December 30, 2007. The violence left over 1,100 people dead, 3,500 injured, and up to 600,000 forced to flee their homes. The worst hit areas were around Molo in Nakuru District and Eldoret, Kaptagat and Burnt Forest in Uasin Gishu District, and in Kibera, one of Nairobi’s main slum quarters. These are all areas where Kikuyu and Kalenjin settlers intermingle or, in the case of Kibera, where Kikuyu and Luo live close to one another.

The post-election violence of 2008 was not an isolated event and had as much to do with historical factors as with the dispute over the election outcome. The danger of ethnic clashes has increased over the past 50 years as Kenyans have become more economically integrated and as competition over land and economic access has intensified with the dramatic growth of population. Moreno-Ocampo’s allegations and summonses are an important first step in ending the era of impunity for those who foment ethnic conflict and violence. But they also raise the risk of a political backlash that might intensify ethnic identities and unite the Kalenjin and Kikuyu communities behind William Ruto and Uhuru Kenyatta in the run-up to the next election in August 2012.
The 2008 violence had deep historical roots. The central Rift Valley for the last 100 years has been one of the most ethnically mixed parts of Kenya, drawing Kikuyu, Kalenjin and Abaluhya to work on European settler-owned farms. Ethnic violence erupts regularly in Kenya in the border zones between different ethnic communities, normally over land and water rights. For the past 20 years, however, the Kikuyu-Kalenjin zones have been particularly prone to politically inspired violence. Before independence in 1963, these areas in the central Rift Valley were part of the “White Highlands,” a farming zone reserved exclusively for European settler farmers. European farmers as early as World War I brought in large numbers of Kikuyu from Central Province as farm laborers, while others became share-croppers inside the European zone. By 1940 one in four Kikuyu lived and worked in the so-called “White Highlands”. Many of the Kikuyu families in the disputed zone have lived there for the past 100 years. At independence in 1963, President Jomo Kenyatta, himself a Kikuyu, opened up the White Highlands to African settlement. He sought to reconcile the conflicting interests of the Kikuyu and Kalenjin, (who occupied land to the immediate west and north of the European enclave), working closely with local Kalenjin political leader Daniel arap Moi. Indeed, it was arap Moi’s successful mediation efforts over these issues that led to his selection as Vice-President in 1967 and to his eventual succession to the Presidency in 1978. Kenyatta sought to heal socio-economic divisions within his own Kikuyu community in Central Province by encouraging wealthy Kikuyu to buy farms in the Rift and the landless and poor to become members of cooperatives, such as the “Million Acres” scheme, financed by the World Bank. More Kikuyu moved into the area during President arap Moi’s rule, as prominent Kalenjins illegally transferred land in the forest reserve to a new generation of Kikuyu settlers.
Over the 50 years since independence, many parts of Kenya have become more ethnically-mixed, often inflaming tensions between communities. In 1963, most of the country’s then 43 Districts were mono-ethnic. The major exceptions were those areas in the former European farming zone in the Rift Valley. This has changed. Kenya’s population today is seven-times what it was at independence. People have moved around the country in search of economic opportunities, land and jobs. In Narok District, for example, which is now Kenya’s granary, local Maasai have sold 40 percent of the land over the past 30 years to Kalenjin businessmen, who have established large-scale commercial wheat and maize farms, which they work with mainly Kikuyu laborers. At the Coast, the local Mijikenda people have been displaced by commercial sisal plantations owned by both Kikuyu and Kalenjin big men, which are cultivated by Kikuyu, Kamba and Luo workers. The number of potential centers of violence is increasing rather than diminishing.
The ICC prosecutor has identified six alleged ring-leaders of the January 2008 violence, namely Minister of Education William Ruto, Industry Minister Henry Kosgey, and Joshua arap Sang (a popular broadcaster on Kass FM radio) who are all members of the Nandi sub-group of the Kalenjin, on the Orange Democratic Movement (ODM) side. Deputy Prime Minister and Minister of Finance Uhuru Kenyatta (the son of the former president), Francis Muthaura (the Secretary to the Cabinet, Head of the Civil Service, and chair of the National Security Advisory Committee), and former Police Commissioner Mohamed Hussein Ali, are associated with President Mwai Kibaki’s first-term administration. Two of whom are Kikuyu and one a Somali. The cases against Muthaura and Hussein Ali clearly stem from their institutional positions and it may prove difficult for Ocampo to establish their direct control over what took place. The others are alleged to have recruited the perpetrators of the violence.
Ocampo alleges that from mid-August 2007, the Kalenjin-language Kass FM radio station began to mobilize the community against the Kikuyu in their midst. The December 2007 election, following the splitting of NARC into what had become by 2007 Kibaki’s Party of National Unity (PNU) and the ODM, was always likely to be more violent than in 2002. Ocampo claims that under the leadership of Ruto, who had emerged as the dominant new force in Kalenjin politics in 2002, and Kosgey who was the ODM chairman, with support from local broadcaster Joshua arap Sang, the Kalenjin community in Uasin Gishu and Kueresoi on the western Mau escarpment reactivated what was known as “The NETWORK”. This drew on a substantial group of Nandi and Keiyo elders, and councilors, who according to earlier investigations by a Parliamentary Select Committee and a state commission of enquiry, had directed attacks in the 1990s, including former members of the police, the army and the prison service which recruit heavily in this area. Ocampo’s allegations state that they devised plans to attack local Kikuyu with the intention of driving them out of the area for good.
The proposed attacks had little to do with the result of the election and whether or not the Kibaki government rigged it. Kibaki’s much disputed re-election by the narrow margin of 230,000 votes, however, became the justification for the Network’s gangs to attack Kikuyu settlements and shops. Most of the initial inter-ethnic violence, Ocampo alleges, was carefully planned and well organized, with trucks carrying armed bands of young Kalenjin to their prepared points for attack. By contrast, in Kisumu, the main town of defeated ODM presidential candidate Raila Odinga’s Luo community, and other parts of Luoland, the violence seems to have been spontaneous. It was directed more at the institutions of the Kenyan state rather than against local Kikuyu of whom there were few.
The initial violence did not come from the Kikuyu side. Rather the PNU forces responded in kind. Police deployment was problematic, especially in Nairobi where half the police are Luos whose loyalty could not be relied upon. The government had, in fact, carefully marshaled the security forces, drawing recruits from the Native Authority Police in Kikuyu areas. The army was kept in its barracks as many of its officers and men are Kalenjin. Facing violent protests in the Kibera slum, an area of large-scale Luo and Kikuyu settlement to the southeast of the city center, and unable to deploy the police, Muthaura, as head of the National Security Advisory Council, and Police Commissioner Mohammed Hussein Ali, Ocampo states, turned to Uhuru Kenyatta. Ocampo alleges in his application that “on or about 3 January 2008, Kenyatta, as the focal point between the PNU and the Muingiki criminal organization, facilitated a meeting with Muthaura, to organize retaliatory attacks against civilian supporters of the ODM.”[1] Muthaura then allegedly ordered Police Commissioner Hussein Ali not to intervene or to obstruct Muingiki.
During the last years of the arap Moi regime, Kenyatta is widely believed to have become a conduit for funds and communication with the traditionalist Muingiki movement, drawn from unemployed young men and criminal thugs in Nairobi’s slums and the neighboring Kikuyu areas. Ocampo alleges that he again played this role in January 2008, organizing a second meeting with Muingiki leaders to discuss logistical and financial requirements. The Muingiki had already acquired a well deserved reputation for violence, operating protection rackets in the capital’s slum quarters and controlling the matatu or transport routes into Central Province and to Nakuru in the Rift Valley. Relations between the police and the Muingiki leaders were bad. The two were reported to be locked in battle to control protection rackets in Nairobi and Central Province, and the police are alleged to have liquidated hundreds, possibly a thousand or more, Muingiki members in conflicts over the proceeds of crimes and protection. Unable to deploy the Nairobi police to contain the Luo protests in Kibera, Muthaura and Hussein Ali allegedly turned to Kenyatta to mobilize the Muingiki.
Kenya unfortunately has a long established tradition of impunity for violent crimes and for other forms of wrong-doing, dating back to the murders of Pio da Gama Pinto in 1965, Tom Mboya in 1969, J.M. Kariuki in 1975 and Robert Ouko in 1990, to name only the most infamous cases. President Kibaki has already declared that the individuals need not resign from their positions in the government as this is only a preparatory stage in the investigation. He pointed out that the three-member ICC panel of judges will not decide whether to prosecute until next year and the cases won’t be tried for another year or longer. Most Kenyans, according to opinion polls by the local press, however, believe that the six named individuals should be prosecuted. They are right--the era of impunity must be ended. Most of those displaced in 2008 still remain in encampments, too frightened to return to their homes. The next election may well be even more closely contested and violent unless a clear message is sent that the era of impunity is over and that perpetrators of violence will either be tried in Kenya’s courts or appear before the International Criminal Court. Both Kalenjin and Kikuyu as Kenyans have the right to live and farm in the Rift Valley and in other parts of the country. As Kenya becomes more ethnically intermixed, ideas of ethnic hegemony and arguably the era of ethnic-politics can no longer be tolerated.
There is, however, one danger. William Ruto and Uhuru Kenyatta are “big men”. Along with Raila Odinga, their names are among those most frequently mentioned as front-runners for the Presidency when President Kibaki retires in August 2012. Even though they were on different sides in 2007 and the violence of 2008, a political alliance between them is not inconceivable. After all, Ruto ran Kenyatta’s 2002 election campaign when Kenyatta, a Kikuyu, won a majority of Kalenjin votes. A Kikuyu-Kalenjin alliance would almost certainly triumph at the polls in 2012. It is to be hoped that the ICC’s allegations don’t bring that about. Already, Members of Parliament are talking about introducing legislation to withdraw Kenya from the Rome Statute that established the International Criminal Court. Some 20 ODM MPs appeared with Mr. Kosgey in order to demonstrate their support when he held a press conference in Nairobi. Kenyatta and Ruto, along with the others, as a result of these allegations may be seen as martyrs by their ethnic communities. The ICC preliminary charges may possibly intensify ethnic identities, uniting the Kikuyu and Kalenjin communities in a joint sense of persecution. Uhuru Kenyatta and William Ruto are highly regarded in their communities and would constitute a formidable alliance at the next election. The ICC and the international community should proceed with caution and encourage moderate voices which urge compliance in the hope of a better Kenya.

[1] The quotation is taken from "Situation in the Republic of Kenya: Public Redacted Version of document ICC-01/09-31-Conf-Exp, Prosecutor's Application Pursuant to Arcticle 58 as to Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali", paragraph 7.

David W. Throup is an adjunct professor at George Washington University and the Johns Hopkins School of Advanced International Studies in Washington, DC. He is a senior associate of the CSIS Africa Program.

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David Throup