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Of Smoke and Mirrors: Kenya's DCI Announcement re 2007/2008 Post-Election Violence Cases

Nabil M. Orina

On 23 November 2020, Kenya's Director of Criminal Investigations, Mr. Kinoti, called a press conference to announce that his office was looking into alleged instances of witness threats and intimidation in regard to the 2007/2008 Post-Election violence. This announcement and its timing has elicited mixed reactions from the political class. The main concern that has been expressed in regard to this announcement is that the 'reopening' of the PEV cases is a political ploy and there is no genuine effort to investigate or rather prosecute any cases arising from the violence. Most prominently, the announcement has been criticised by the Deputy President, William Ruto, whose charges of crimes against humanity were terminated by the ICC in 2016. Ruto took to social media to dismiss the announcement as an 'incitement to ethnic hate.'

The heat generated by Mr. Kinoti's announcement forced him to later issue a 'clarification' on 24 November 2020 through a statement that the steps his office was taking were not meant to reopen completed cases but would focus on 'reported threats to security and to sensitive the public on the need for peaceful co-existence.' This statement certainly does little to clarify any intended investigative work in regard to the PEV. Furthermore, it does little to address claims of turning the planned investigation into a political witch-hunt. Over and above the conversation generated by this announcement, this post takes a step back to look at previous efforts made domestically to address the PEV and their outcomes, and the implications of the recent developments.

Kenya has undergone three key moments in attempts to address crimes arising from the PEV. The first was an attempt to establish a Special Tribunal which did not succeed as the bills to operationalise it were defeated in Parliament. When this effort failed, the former UN Secretary General, Kofi Annan, handed the contents of an envelope containing a list of suspects and evidence from the Waki Commission to the ICC Prosecutor. This signalled the end of hopes that Kenya would establish domestic mechanisms to try those who were most responsible for the violence. There were expectations, however, that other domestic prosecutions would still be carried out to seal the impunity gaps as the ICC would only concentrate on a small list of those who were deemed to be most responsible.

Following the rejection of a special tribunal and the intervention of the ICC, there was increased domestic pressure to come up with complementary mechanisms that would adjudicate over cases of mid and lower level perpetrators of crimes arising from the PEV. Despite committing to taking steps towards domestically investigating crimes arising out of the PEV during its challenges to the admissibility of the cases against the six suspects, Kenya did not take concrete steps to deal with these crimes. It was alleged that there was insufficient evidence to mount any prosecutions for these crimes. At this time, having lost the chance to wrest back jurisdiction from the ICC, there was no further motivation for domestic action. Kenya lacked a genuine intention for criminal justice.

However, the seeming closure of any possibility for domestic proceedings did not stop the judiciary through the Judicial Service Commission (JSC) from a renewed attempt at establishing domestic mechanisms for dealing with the PEV crimes. The JSC, therefore, appointed a committee to look into the possibility of operationalising the International Crimes Act through the formation of an International Crimes Division (ICD) within the High Court. This committee submitted a report after conducting a study of literature and by visiting various models of domestic mechanisms for dealing with atrocity crimes, including Rwanda domestic courts and the Ugandan International Crimes Division, to identify best practices.

Despite the goodwill the proposal to establish an international crimes division enjoyed across the key stakeholders (see KPTJ commentary), it has not been implemented due to a lack of political will. The idea of a standing domestic mechanism for atrocity crimes was associated with the ICC and hence silently opposed. Even though, theoretically, States are expected to establish domestic mechanisms to counter the ICC, there was no incentive anymore to go ahead with establishing this court after the cases for core crimes in the situation in Kenya were either terminated or withdrawn.

The third moment came through an admission that Kenya lacked sufficient evidence to prosecute crimes arising out of the PEV and would instead refocus all efforts on resettling and compensating victims of the PEV. In President Kenyatta’s State of the Nation address to the joint sitting of the Houses of Parliament in 2015, he acknowledged that there had been challenges to prosecuting those responsible and offered a promise of restorative justice for the victims of the PEV:

We must indeed recall our options are not limited to retributive justice. There also exists the promise of restorative justice. In many ways, Kenyans and humanity overall, have benefited from restorative justice, an approach that is deeply rooted in our cultural and historical realities, particularly when such conflicts have a communal and political dimension. Many thousands of Kenyans have reached out to reconcile with one another. My administration was forged from this reconciliation, and is building on the efforts of the last government to advance the resettlement, reconciliation and relief to internally displaced people. I am committed to continuing these efforts as necessary. Notwithstanding the recommendation of the TJRC report, I have instructed the Treasury to establish a Fund of 10 billion shillings over the next three years to be used for restorative justice.

It should be noted that the Truth Justice and Reconciliation Commission report has not been implemented to actualise this call. There are also no known mechanisms established to deal with victims of the PEV. In the past, efforts to compensate victims have been ad hoc, marred with accusations of political tokenism, and exclusion of certain categories of victims especially victims of sexual and gender-based violence.

It is with this background then that Kinoti's announcement raises questions about the genuineness of any ongoing progress. Before he took over his current office, a Taskforce was appointed working under the office of the Director of Public Prosecutions that produced a report on the status of investigations and prosecutions for PEV related crimes. That report had concluded that there wasn't sufficient evidence to conduct any further prosecutions. Has the situation changed? For transparency and for the sake of victims of the PEV, any new efforts should be systematic to avoid accusations of being a political ploy. Indeed, the WAKI Commission report and the TJRC report could be a good starting point. The Directorate of Criminal Investigations may think of pursuing, afresh, a cooperative request with the ICC Prosecutor to obtain evidence that was confidentially handed over by Mr. Annan.

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