2007 PRESIDENTIAL ELECTIONS AND ENSUING VIOLENCE
On 27 December 2007, presidential elections were held in Kenya. Mwai Kibaki was elected President, but the voting took place along ethnic lines and the opposition, as well as international observers, claimed that the elections had been manipulated. Supporters of Raila Odinga, the opponent of Mwau Kibaki, staged several non-violent protests but also engaged in violent demonstrations in several parts of the country. The Police shot at a number of demonstrators causing more violent protests. Civil unrest and targeted ethnic violence ensued. It was first directed mainly against the Kikuyu people, the community of which Kibaki is a member, in the Rift Valley Province. This violence escalated with the killing of over 30 unarmed civilians in a church near Eldoret (Western Kenya) on 1 January 2008. Some of the Kikuyu people engaged in retaliatory violence against ethnic groups supportive of Odinga, primarily the Luos and the Kalenjin people. The slums of Nairobi witnessed intense violence including ethnically motivated attacks, outrages at extreme poverty and actions of criminal gangs. The violence continued sporadically for several months, particularly in the Rift Valley.
In January 2008, former UN Secretary-General Kofi Annan successfully brought the two sides to the negotiation. On 28 February 2008, Kibaki and Odinga signed a power-sharing agreement called the National Accord and Reconciliation Act, which established the office of prime minister and created a coalition government. Odinga became the Prime Minister of the government, which was sworn in on 17 April 2008.
COMMISSION OF INQUIRY AND TRUTH, JUSTICE AND RECONCILIATION COMMISSION
By the end of January 2008, around 1,300 people were killed and approximately 300,000 were displaced. The government of Kenya established several inquiry commissions including the Commission of Inquiry on Post-Election Violence (Waki Commission) to investigate the clashes that ensued after the 2007 presidential elections. On 15 October 2008, the Commission submitted the so-called “Waki report”, recommending the creation of an independent court with international oversight to try cases of international crimes and allegations that ministers, legislators and businessmen funded and fomented the violence. Names of the alleged perpetrators were not disclosed publicly, but to Kofi Annan, who handed them over to the ICC Prosecutor in July 2009. The Commission gave the Parliament one year, beginning in July 2009, to establish such a court after which, it would disclose the names of the alleged perpetrators to the International Criminal Court (ICC).
In October 2008, the Parliament established the Truth, Justice and Reconciliation Commission to investigate and recommend appropriate action regarding abuses committed between the country’s independence in 1963 and the conclusion of the power-sharing deal of 28 February 2008. The Commission was supposed to be complementary to the prosecution of human rights abuses either by an international tribunal in Kenya or the ICC. The Commission does not have the power to prosecute, but to recommend prosecutions, reparations, amnesty in exchange for the truth by the perpetrators who did not commit gross human rights violations. Victims may apply for reparations if they qualify.
In February 2009, the Parliament rejected the Constitution Amendment Bill, which would have allowed for the creation of a special court for the prosecution of crimes committed during the post-election violence. The “Waki Commission” disclosed the names of the alleged perpetrators to the ICC Prosecutor. On 31 March 2010, the ICC authorized the Prosecutor to open an investigation into the situation in Kenya in relation to alleged crimes against humanity falling within the ICC jurisdiction. Three persons are currently indicted at the ICC: William Samoei Ruto, Joshua Arap Sang and Uhuru Muigai Kenyatta. Furthermore, the ICC has issued an arrest warrant against Walter Osapiri Barasa.
2013 PRESIDENTIAL ELECTIONS
On 4 March 2013 general elections were held in Kenya. These were the first general elections held under the new constitution from 2010 and the first that was run by Kenya’s Independent Electoral and Boundaries Commission, a regulatory agency in charge of supervising referenda and elections. Uhuru Kenyatta was declared President-elected. He defeated his opponent, the then incumbent President Raila Odinga, in what observers considered mostly fair and transparent elections. William Samoei Ruto was appointed Kenyatta’s Deputy-President. The fact that both Kenyatta and Ruto face charges of crimes against humanity before the ICC, which was publicly known before the elections, did not prevent them from winning over the majority of voters.
AFRICAN UNION AND ICC
With indictment against Kenya’s Uhuru Kenyatta and arrest warrant for Sudanese President Omar al-Bashir, the ICC is seeking to prosecute two incumbent African heads of state. The tension between African countries and the ICC, which have existed since the Court’s creation, increased considerably with a controversial decision the African Union took on 12 October 2013. The 54-member organization of African states unanimously adopted a resolution asking the UN Security Council to defer the trials against any serving head of state or government or anybody acting during his term in office. The AU decided further, Kenya’s President Kenyatta should refuse to attend his trial before the ICC. On 10 September 2013, the AU sent a letter requesting that the ICC defer the investigation and prosecution of acts connected to 2007 post-election violence in Kenya, and allow the newly reformed national judiciary to investigate and prosecute. In addition, in October 2013, Kenya’s UN ambassador sent a letter to UN Security Council to ask that the ICC defers the trials against Kenyan officials.
The Organization has repeatedly accused the ICC of being one-sided because it has so far only tried African cases.
In September 2013, the Kenyan Parliament started debating on withdrawing from ICC. The motion to suspend any cooperation with the ICC was approved by the National Assembly. This in no manner affects the trials which have already started before the ICC. In order to end its membership, Kenya has to officially submit the request to the UN.