Elsewhere in this exerpt which is an opinion from Judge Osuji's seperate opinion, the discussion engages two distinct issues separately. One is the matter of the aggressive political campaign that the Government involved itself in against this trial that was about the individual responsibility of the accused. The other is the matter of reparation for victims of the 2007-2008 Kenyan post-election violence. But one relevant consideration to both issues is the troubling matter of impunity for repeated cycles of post-election violence in Kenya. There was bloody violence in each of the 1992 and the 1997 elections. And, then, there was the 2007-2008 episode that is our immediate concern. As with the last episode, there were also national commissions of inquiry empanelled to investigate the first two — the Akiwumi Commission and the Kiliku Parliamentary Committee, respectively.
It is noted that the Commission of Inquiry into the Post-Election Violence of 2007-2008 (the ‘Waki Commission’) found that, as of the time of that episode, there was in place a culture of political violence in Kenya that fell along ethnic lines. As part of that culture, politicians would employ organised violence as a means of winning political power. The point is sufficiently made in the following passages, which deserve setting out at some length for careful consideration:
The Mungiki — a violent gang comprising mostly of some Kikuyus —looms large in Waki. But it is clear from the passages themselves and from other parts of the report that there were also violent gangs — comprising mostly of some Kalenjins — that had operated and been made use of in much the same way, particularly in the Rift Valley region. It is also noted that an expert witness for the Prosecution, Mr Maupeu, had observed, among other things, that ‘in the Rift Valley, violence was expected during every election.’
Particular attention is deserving of the Waki Commission’s reported finding that there were no prosecutions for the 1992 and 1997 episodes, and that this had resulted in a ‘culture of impunity’ and ‘constant escalation of violence.’ The Commission found that culture of impunity to be ‘at the heart of the post election violence’ of 2007-2008. In the words of the Commission: “Over time, this deliberate use of violence by politicians to obtain power since the early 1990s, plus the decision not to punish perpetrators has led to a
culture of impunity and a constant escalation of violence.”
Now, I must mark that the Waki Commission reported of ‘the decision not to punish perpetrators’ of previous episodes of electoral violence. In particular, they found that failing to have ‘led to a culture of impunity and a constant escalation of violence.’ It must be observed that this Chamber has seen no indication of zeal on the part of the Government — as, among other things, their attitude toward this trial loudly demonstrates — to prosecute persons suspected of serious complicity in the 2007-2008 post-election violence. This is a serious matter of every State’s responsibility to protect its citizens. As far as can be seen, the only serious prosecutorial effort to speak of is that of the Office of the Prosecutor of this Court. She must be commended for it, not
vilified.
But, why is that a particularly important observation to make? To answer the question, certain observations of Mr Maupeu, the expert witness, are to be kept in mind. He had observed that the hands of violence were largely stayed in the 2013 Kenyan elections, partly because the Office of the Prosecutor of the ICC showed a determination to prosecute cases arising from the 2007-2008 post-election violence. As Mr Maupeu put it, during the 2013 election, there was ‘very little violence. It was organized very peacefully. And the stakes involved in this very court was one of the factors contributing to the pacification of politics.
An attempt was made, it seems, to dampen Mr Maupeu’s observation: by noting a certain view to the effect that this trial may be viewed by some as ‘a dysfunctional factor in Kenyan politics,’ in the sense that the trial will, for example, ‘increase at least a sense ... amongst the Kalenjin group of persecution.’226 It is of course wholly understandable that people do not embrace a circumstance that they view as disadvantageous to them. That is human nature. People are often stressed out by the justice system when a loved one is in its grips. But, such a subjective inclination could not override the possibilities of the objective circumstance in which the Prosecutor’s stance in prosecuting this case may have tangibly contributed to the general good: of keeping violence at bay during the 2013 election; perhaps helping to break the cycle of the culture of violence that the Waki Commission reported as resulting from the decision to punish no one for participating in the violence episodes witnessed in 1992 and 1997.
But beyond that, political casuistry may make it convenient to disregard or degrade Mr Maupeu’s observation, even deride it. But that would be a very strange thing to do indeed, on the part of anyone who claims to have at heart the best interests of Kenya and its citizens as an organic entity. To put it differently, unless a naysayer is able to present a demonstrable solution that permanently guarantees an end to the culture of electoral violence that the Waki Commission reported, it becomes wholly astonishing (to put mildly) to protest and delete the prospect of an ICC prosecution as a potent measure of protection against such occurrences.
There has been much talk of withdrawing Kenya from the ICC fold. Apparently, a parliamentary resolution was even passed in that regard. But at the foot of such talks of withdrawing necessarily lies the concern whether innocent and powerless Kenyans would be returned to the unhindered mercy of the deadly cycles of electoral violence that the Waki Commission reported — unleashed upon them in order that powerful people may ascend to high political office. And then to be repeated at the next election. All with impunity, as the Waki Commission reported. It is a cross that no human population should have to bear anywhere in the world. Kenya and her citizens deserve a much better fate than cycles of electoral violence almost every five years.
It is a matter of judicial notice that not too long ago, the leader of an African State conceded defeat in an election that ousted him from power. He was reported as having insisted that his own political ambition was not worth the blood of any one of his compatriots. The statement is remarkable in more ways than one, not least because it goes without saying. It must indeed be an elementary axiom of the democratic process in Africa — as elsewhere in the world — that no man’s ambition for political office is worth the life of any of his fellow citizens.
The Waki Report must be considered with the greatest care in all that it says, to help make Kenya a truly leading democracy in the modern world —where the welfare of the people is given the first order of priority. But it must begin with real efforts in good faith — not mere lip service cheaply proclaimed as lip services go — to reverse the aberration of democracy noted as follows in the Waki report: ‘... the State is not seen as neutral but as the preserve of those in power.’ Regrettably, that impression was not at all assisted by the political campaign so visibly and unapologetically waged against this case in the course of its trial.
Based on all these considerations, the need must be stressed for the Kenyan Government and politicians, and the international community — including the African Union in particular and United Nations and their caring
partners beyond — to reflect upon these observations, for the sake of humanity whose heart beats in Kenya as fervently as it does elsewhere. No effort must be spared to find a lasting remedy for the culture of political violence as the Waki Commission reported in a straightforward way. But, the critical matter is that such efforts must include the spotlight of serious national and international prosecutorial attention on electoral violence in a country so beautiful and with so much to offer the world.
The subject matter of this case is infinitely deeper and more involved than the average criminal case. It fully warrants these observations. Now, we go to the legal discussions.
