Peace Betrayed: The ICC Politics of Victimhood and The Threat of Instability in Kenya

Peace Betrayed:
The ICC Politics of Victimhood

and The Threat of Instability
in Kenya
Africa Report
November 20, 2015
Peace Betrayed:
The ICC Politics of Victimhood and The Threat of Instability in Kenya
Executive Summary
he International Criminal Court (ICC) case is a danger to a

fledgling peace in Kenya. The Courts case and actions since
2010 have been perverse, with its inexcusable selection of
victims, events, context and the accused. Through its retributive justice
approach, the Court is creating a new set of victims, polarising a
susceptible population and setting the stage for a new wave of violence.
The International Policy Group calls for an immediate halt to the case
and creation of a transitional justice mechanism that will exhaustively
deal with the decades-long issue of victims in Kenya.
The Courts construction of its cases through a culpable avoidance
of Kenyas history of political violence that spans three decades with
victims in the millions is an indictment of its selective approach to
victimhood. Since the onset of State-sponsored violence in the 19911993 election cycle on the back of a multiparty challenge on KANU
and President Mois hold on power that was repeated in the 1997-1998
election cycle, the history of violence and the victims it has produced
has been convoluted, with different actors, locations and in its basic
nature. For a right perspective on victimhood in Kenya, this history
cannot be ignored.
The 2007-2008 violence that had ethnic dimensions cannot be the Courts
only claim to victimhood in Kenya, given the diffusion of violence over
the decades to ethnic-allied criminal groups. The broad-based violence
of 2007-2008 had victims and perpetrators entangled in an ethnic web
that was more complicated than the ICC approach seeks to demonstrate
even as it selected which victims deserved its retributive brand of justice
and which did not
Although over 5,000 people have died, 1,000,000 been displaced and
tens of thousands injured, property destroyed, communities torn apart
and the whole country ruptured in a tense and volatile atmosphere,
the courts approach to justice betrays this reality through its misuse
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of a fraction of these victims and events. Its case only continues to

exacerbate the deep seated suspicions and outstanding grievances that
have not been settled since the onset of the cycles of violence in the
1990s, thereby endangering a fledgling peace that should be foremost
consolidated through sustainable peace processes.
The case at The Hague denies this reality and undermines an approach
that can address these issues that should include truth telling of history,
reparation for victims, accountability and reintegration of perpetrators,
restoration and reconstruction of communities and healing of the
nation. This is what is required if Kenya is to exhaustively deal with its
dark history once and for all.
This report delves into this history of violence and victimhood in Kenya,
tracing responses by different actors over time. It documents victims
from all cycles of violence, has a comparative look at responses and the
ICC response in particular and concludes with an approach that can
exhaustively deal with the issue of victimhood in Kenya outside of a
retributive justice mechanism.
It is time the ICC realized Kenyas need to substantively deal with
this history and its victims once and for all in the context in which
their victimhood occurred. This would include a way that restores
communities and heals the nations bloodied psyche even as it struggles
to consolidate peace. The International Policy Group recommends:
Halt Cases at the ICC to Consolidate Peace: The International
Criminal Court should immediately pull out from Kenya and
commit its resources to the consolidation of peace in Kenya. This
should be done through; restoration and reparation of victims,
reconstruction of communities and supporting peace processes
in a post-conflict reconstruction context.
Complete Restoration of Victims: The Government of Kenya
should embark on a post-conflict restoration and reconstruction
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mission that will cover victims from 1991-2008. It should do this

through; complete resettlement of all displaced persons, ensure
reparation for all victims, reconciliation and reintegration of all
warring communities, reconstruction of communities, ensure
accountability through a transitional justice structure and commit
to immediate trial those who threaten peace.
Investigate the Procurement of Witnesses: the Assembly of
States Parties should under Article 112 (4) of the Rome Statute do
a comprehensive and forensic investigation of the whole process
involving the Kenyan case. It should in particular investigate
claims that the Office of the Prosecutor procured witnesses in the
Kenyan case through dubious and questionable circumstances.
The whole concoction and framing of the Kenyan case should be
investigated from the start of the case to its current attempt to
use recanted evidence.
Recognise the ICC is Endangering Peace: The UN Security
Council, the European Union and the United States should
recognise that the current skewed and selective construction
of the Kenya case is a danger to a fledgling peace. The case is
creating new fault lines and polarising the population. They should
also commit resources to Kenyas restoration and reconstruction
efforts with a view to ending the cycles of violence and victimhood
once and for all in a framework that understands and responds to
the context in which the violence and victimhood occur.
Secure Peace and Prevent Return to Violence: The African
Union should continue in its efforts to halt the Kenyan cases at
the ICC and provide a framework for Kenyas restoration from
examples that have taken root and prospered in post conflict
restoration like the South African CODESA framework or the
Rwandan model for peace and reconstruction.
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Map of Kenya
Peace Betrayed:
Acronyms
ANC African National Congress
ASP Assembly of States Parties
AU African Union
CID
Criminal Investigations Department
CIPEV
Commission of Inquiry on Post Election Violence
CODESA
Convention for a Democratic South Africa
CSO
Civil Society Organisation
DPA
Department of Political Affairs
EU
European Union
ECK
Electoral Commission of Kenya
HD Centre
Centre for Humanitarian Dialogue
ICC
International Criminal Court
IDP
Internally Displaced Persons
IREC
Independent Review Committee
KANU
Kenya African National Union
KHRC
Kenya Human Rights Commission
OCPD
Officer Commanding Police District
ODM
Orange Democratic Movement
OP
Office of the President
PEV
Post-election Violence
PNU
Party of National Unity
SCCG
Small Church Community Groups
UN
United Nations
UNON
United Nations Office in Nairobi
US
United States of America
WWII
World War II
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Contents
Acronyms....................................................................................................vi
1.0 Introduction...................................................................................1
2.0 A Historical Perspective on Victimhood............................3
2.1 1991-1993 and 1997-1998 Election Violence Victims......3
2.1.1 The Nature of the Violence and the Victims....................3
2.2.0 Responses to the 1992 & 1997 Election Violence
Victims.............................................................................................10
2.2.1 The Report by the Parliamentary Select Committee to

Investigate Ethnic Clashes in Western and Other

Parts of Kenya 1992 (The Kiliku Committee)....................10
2.2.2. The Judicial Commission Appointed to Inquire into

Tribal Clashes(The Akiwumi Commission)........................11
2.2.3 Jesse Jackson Visits Kenya.......................................................12
2.2.4 The International Community and Western Donors........12
2.2.5. The United Nations Development Program (UNDP)

Displaced Peoples Programme.............................................14
2.2.6 Local Level Efforts......................................................................15
3.0.0 The 2007-2008 Elections........................................................16
3.1.0 The Nature of the Violence......................................................16
3.2.0 Table of 2008-200 Post-election Violence Victims.......19
3.2.1 Responses to the Violence......................................................22
3.3.1 Operation Rudi Nyumbani.......................................................22
3.3.2 The International Community: The Power Sharing
deal...................................................................................................23
3.3.3 The Commission of Inquiry into the Post-Election

Violence (CIPEV). (the Waki Commission)........................25
4.0.0 The International Criminal Court...........................................27
4.1.0 The Foundation of the ICC and its Quest for

Retributive Justice......................................................................28
6.0 The ICC Approach; Retributive Justice...............................35
6.1 The ICC and Victims...................................................................36
Peace Betrayed:
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7.0 A Final Solution for all Victims of Political Violence;

the Case for Restorative Justice...........................................37
8.0 Conclusions ..................................................................................43
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1.0 Introduction
he International Criminal Court (ICC) has become inimical and

too costly to the plight of political violence victims, the entire
community and to the resolution of a history of victims in Kenya.
The ICC is doing this through its separation of prior victims of earlier
cycles of political violence in its current case, excluding the involvement
and the context of victimhood and marginalizing the community from
participation. Its continuation is sharpening a high sense of separation
and victimization by its construction of select victims, select offenders,
select witnesses and select criminal events, thereby leaving victims
and the society cynical and disjoined from the process while creating a
polarised social order with a heightening sense of discord.
The early 1990s saw the onset of a new wave of political violence in
Kenya that was outside of the occasional banditry that had been mainly
characteristic of the former North Eastern and parts of the Eastern
provinces. Ethnic or land clashes as they came to be erroneously called
were organised, localised and sporadic conflicts that came to mainly
take place during the electoral periods of general elections. I992 saw the
first multi-party competitive politics for more than 20 years, where the
then President Daniel arap Moi for the first time faced real competition
at the ballot, where organised political violence was used as a strategy
to kill the vote allied to the opposition.
This sporadic violence was characterised by looting and destroying
farms through arson, displacement of occupants, and killing and injury
of people in targeted areas. These conflicts took place in the electoral
cycles of 1991-1993, 1997-1998 and 2007-2008.
The 2007-2008 violence took a different dimension from the prior cycles
of violence. The areas involved included the usual regions in the then
Rift Valley Province, the Coast Province, Nairobi and the border areas
of Nyanza Province and new areas including Central Province, where
violence was more widespread. These conflicts related to competitive
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politics and the issue of grievances over land and other historical
injustices was used to spur and camouflage the real causes of the
conflicts.
Over 5,000 people have died, over 1,000,000 people have been displaced
and property destroyed in all cycles of violence. The ICC has moved to
Kenya and chosen the 2008 victims as the poster children of a cause
of retributive justice that is increasingly making the Kenyan situation
worse by deepening differences while completely ignoring the need for
a wholesome restoration of all victims of violence.
This report addresses the victims question in Kenyan politics through a
historical approach, responses by different actors to the victims and the
current approach to victims and victimhood, especially the ongoing ICC
case at The Hague and what needs to be done to effectively deal with
the complex issue of victims, historically, in the context of the politics
in which their victimhood arose, the need for restitution, peace and
reconciliation and finding a lasting solution.
Peace Betrayed:
2.0 A Historical Perspective on Victimhood

Kenyas history of political violence has left many victims in its wake.
These victims have varied in type from these who have died, those
injured, those displaced, those who have lost property to those unjustly
accused by the politics that is the cause of victimhood. Individuals,
communities and the whole nation have interchanged roles as victims
and perpetrators in what has been Kenyas convoluted web of violence.
Victimhood is not a recent phenomenon, it has a deep history. The
creation of the Kenyan state itself brought about unwitting victims
and its subsequent history has ceated various types of victims. In our
study, we take a special look at victims in the political context, especially
through the election cycles of 1991-1993, 1997-1998 and 2007-2008.
2.1 1991-1993 and 1997-1998 Election Violence Victims

The first politically instigated violence erupted in October 1991 in the Rift
Valley. KANU politicians organised Kalenjin youths to expel hundreds of
non-Kalenjin from the land they jointly owned at a cooperative farm in
Nandi District, threatening the lives and damaging the property of those
who resisted. Similar incidents spread across the southern half of the
Rift Valley and neighbouring districts in Western and Nyanza provinces.
In 1993, Human Rights Watch/Africa Watch reported that over 1,500
people had been killed and at least 300,000 fled their land.1
2.1.1 The Nature of the Violence and the Victims

While attacks have continued in this region, they generally occur at a
much lower level than was the case in 1994. A notable exception was in
January 1998, immediately following national elections, when attacks
killed over 100 people and displaced thousands more.
A series of violent attacks also took place in Coast Province, in the
1. Human Rights Watch/Africa Watch, Divide and Rule: State-Sponsored Ethnic Violence in Kenya (New York:
Human Rights Watch, 1993), pp. 1, 90.
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Likoni-Kwale area, from August to November 1997. Precise figures are

unavailable and estimates of fatalities vary from 70 to as many as 1,000.
Many more were injured and their homes or businesses destroyed. The
threat of further violence displaced 100,000200,000 people. Violence
also erupted periodically in the northern part of the country among
traditionally pastoralist communities such as the Samburu, Pokot, and
Marakwet.
According to the Kiliku Committee2 government officials paid attackers
per permanent house burned and per person killed or thatched house
burned, while KANU leaders armed and trained private militias in special
camps. Sources also reported government trucks and even helicopters
transporting hired militias into the affected communities.3 Similarly,
during the coastal violence in 1997, organized, unidentified armed people
attacked members of upcountry ethnic groups. As in the Rift Valley,
indirect links were traced to the government, including indications that
the instigators had been armed, trained, and coordinated by KANU
officials with the goal of consolidating their declared KANU zone4. An
estimated 75 to 100 percent of upcountry people were displaced in the
areas directly affected by the attacks.
In all cases, witnesses reported that security forces stood by, at best
only firing in the air in ineffective attempts to scare off attackers. In
some instances, police officers, paramilitaries, and other security
forces actually disarmed those trying to defend themselves from
raiders. Sometimes they even joined in the attacks. Victims seeking
police intervention were often ignored, even beaten. When raiders were
captured and transferred to police custody, they were usually released
within hours. The powerful provincial administration, which reports
directly to the Office of the President, was often complicit.5 More than
2. Republic of Kenya, National Assembly, Report of the Parliamentary Select Committee, p. 75;
3. In the Daily Nation of 9/4/1996 Ndingi Mwana aNzeki, Catholic Bishop Diocese of Nakuru, told his congregation at the Cathedral of Christ the King in Nakuru that unidentified lorries and a helicopter were transporting unknown people to the Rikia Forest.
4. See Alamin Mazrui, Kayas of Deprivation, Kayas of Blood: Violence, Ethnicity and the State in Coastal
Kenya (Nairobi: Kenya Human Rights Commission, 1997).
5. Republic of Kenya, National Assembly, Report of the Parliamentary Select Committee, pp. 6873.
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anything, the passivity and apparent collusion of state agents convinced

observers that the government was involved in the organization and
execution of the violence.
The central rationale of the violence of 1992 and 1997 appears to have
been to maintain the political and economic status quo in the Rift Valley
region and other KANU allied areas during the run up to the General
Election.6 The displacement at this point had political motivations
closely linked to land tenure issues and forced displacements from
Kenyas colonial past to camouflage the real cause of the Violence.
People perceived to support opposition groups were ordered by groups
allied to the ruling party KANU to leave the Rift Valley and return to
where they came from.
The violent displacements followed almost exactly with the amendment
of the Kenyan Constitution to permit multiparty politics in September
1991.7 Parties were formed along tribal lines, with KANU-allied politicians
mobilizing youths within their communities to displace people viewed
to belong to opposition parties. A total of about 1,170 people died in the
1991-92 violence and 304,000 were displaced with destruction of property
that included farms, houses and commercial buildings in violence that
ranged from Molo to Chwele.8
Human Rights Watch describes the pattern of violence in the following
manner:
The reports of the attacks are remarkably similar. Hundreds of young
men, dressed in an informal uniform of shorts and tee-shirts, armed with
traditional bows and arrows, attack farms inhabited by Kikuyus, Luhyas,
or Luos, all communities associated with the political opposition. The
warriors loot, kill, and burn, leaving death and destruction in their
wake. To a lesser extent, there have been retaliatory attacks against the
Kalenjin, though these have been less organized and more opportunistic
6. M. S. Kimenyi, N. S. Ndungu, Sporadic Ethnic Violence: Why Has Kenya not Experienced a Full- Blown Civil
War?
7. See Democracy in Kenya? Reconstruction, Vol. 2, No. 1 (1992), p. 52.
8. Table 1.1
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in character, creating an escalating cycle of violence. There is a growing

atmosphere of hatred and suspicion between communities that had
lived together peacefully for many years..9
These attacks would create a pattern and provide a template which
future political violence would take. This created the basis under which
political violence would be waged in later years, including in 1997 and
2008. The 1992 elections were the first to reflect the tribal organisation
Kenyan politics would increasingly take, with the trend reaching its
height in 2007 in a disputed election and the diffusion of violence and
resultant victims who numbered in the hundreds of thousands.
The organisation of State-sponsored violence camouflaged under ethnic
violence took the form of calls for majimboism, an undefined form of
decentralization that was however understood to mean that all tribes
would have to go back to their ancestral homes. This fortified the idea of
regions being exclusive to tribes and further fomented the move towards
tribal formations that would compete for State-level power.
KANU politicians would be heard referring to others as aliens and
foreigners in the Rift Valley as opposed to natives or original
inhabitants.10 A month before the ethnic clashes began, in a seemingly
coordinated move, top KANU politicians arranged a series of political
rallies in Rift Valley Province calling for majimboism. At a rally held
on September 8, 199111, in Kapsabet, KANU MP Joseph Misoi read a
statement declaring that a Majimbo constitution had been drafted that
would be tabled before the House if proponents of a multiparty system
continued their efforts.
The basic nature of the violence was of armed attacks orchestrated
and financed by senior government officials, rather than originating in
the affected communities. The 1992-1997 violence was not the result of
ethnic conflicts or land tenure issues as it was framed and would have
9. Divide and Rule: State-Sponsored Ethnic Violence in Kenya, Human Rights Watch 1993
10.Indigenous or Native? How Ntimama Sees It, Daily Nation, June 30, 1993.
11.Daily Nation (Nairobi), September 9, 1991
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hardly escalated into large-scale violence without the outside instigation

of KANU political actors.
The result however was heightened ethnic awareness that fomented
ethnicity-based grievances and distrust among communities. From 1994
the violence was low-level but systematic, drawing limited national and
international attention until 1997, when the infamous Likoni Clashes
took centre stage. As Kenya moved closer to the 2002 general elections,
there was fear that mobilization towards violence would increase
though the nature of the election a presidential transition poll in which
the incumbent was not a candidate did not raise any considerable
violence. In the 2007 elections however, ethnic awareness had risen to
stratospheric levels where it was used as a mobilizing factor towards
the election so much so that when grievances arose, communities used
violence which had by this time been diffused in an ethnically charged
environment.
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1.1.1.
Table 1. 1991-1993 Violence Cycle Victims
Table 1.0 1991-1993 Violence Cycle Victims

Area
Date
Length
Cause
Damages
Lives
Lost
People Displaced
Property
destroyed
Kericho
Nov 1991
-Nov 1992
13
Months
Border Conflicts and

Politics
1991-1992
12
months
Land and
Politics
Nandi
August
1991-May
Tinderet, Miteitei, 1992
Cheboigony and
Songor
10
months
Politics and
Land
Narok Maai Ma- Between

hiu, Trans-Mara,
1991 &
Gucha, Enosu1992
pukia, Mau-Narok
12
months
Border
Conflicts,
Politics and
Land
Trans Nzoia
12
months
Land and
Politics
Extending from
Muhoroni, Kiptenden, Ainamoi
to Londiani,
Kipkelion
Nakuru
Molo, Njoro, Mau
Summit, Keringet, Olenguruone
Endebess,
Kaptam, Mount
Elgon, Kapsokwony
UASIN GISHU
Ainabkoi, Burnt
Forest
BUNGOMA
Chwele
1991-1992
30
16,000 Farms,
Homes and
Food Storage Burnt
1,000
200,000 Farms,
Homes
and Food
Storage
Burnt Cattle
Stolen
10,000 Farms
Attacked
54
40,000 Farms
Attacked
16,000 Farms,
Homes and
Food Storage Burnt
1992 4
months
Politics
18
20,000 Farms,
Homes and
Food Storage Burnt
1992 5
months
Politics
68
2,000 Farms,
Homes and
Food Storage Burnt
Sources; Various Nation newspapers, M. S. Kimenyi, N. S. Ndungus Sporadic Ethnic

Violence: Why has Kenya Not Experienced a Full-Blown Civil War?
Peace Betrayed:
1.1.2.
Table 2. 1997-1998 Election Violence Victims
Table 2.0 1997-1998 Violence Cycle Victims

Area
Date
Length
Cause
Damages
Lives Lost
People Displaced
Property
destroyed
Laikipia
December
1997-Jan
1998
2
Months
Border
Conflicts
and Politics
Nakuru, Molo, 1996-1997

Njoro, Mau
Summit,
Keringet,
Olenguruone
18
months
Politics
500
500 Farms,
Homes and
Food Storage Burnt,
Theft of
Livestock
100,000 Farms,
Homes and
Food Storage Burnt
Cattle stolen
Narok
1997 12
months
Border
Conflicts,
Politics
27
18,000 Farms Attacked
Mombasa
1997 3
months
Land and
Politics
62
100,000 Businesses
Destroyed,
Collapse
of Tourism
industry
Kwale
1997 4
months
Politics
67
60,000 Businesses
Destroyed,
Collapse
of Tourism
Industry
Nyanza
1997 5
months
Politics
38
28,000 Farms,
Homes and
Food Storage Burnt
Sources; Various Nation Newspapers, M. S. Kimenyi, N. S. Ndungus Sporadic Ethnic

Violence: Why has Kenya Not Experienced a Full-Blown Civil War?
Peace Betrayed:
2.2.0 Responses to the 1992 & 1997 Election Violence Victims

In the wake of the violence and the varied types of victims, there were
different responses from different actors in a quest to end the violence,
find causes of the violence, restore the victims and deter future
conflicts. The actors included the Government of Kenya, international
community including countries like the United States, Britain and
France, international organizations like the UN and local level initiatives
by the Church and other locally organised groups.
2.2.1 The Report by the Parliamentary Select Committee to

Investigate Ethnic Clashes in Western and Other Parts of

Kenya 1992 (The Kiliku Committee)
The Parliamentary Select Committee to Investigate Ethnic Clashes in

Western and other parts of Kenya in 1992, chaired by Hon. Joseph K
Kiliku, was appointed on 13th May, 1992 by a resolution of the National
Assembly passed on 29th April, 1992. The 13-member Parliamentary
Select Committee was appointed under the chairmanship of Joseph K.
Kiliku. It commenced its work on May 14, 1992, and submitted its final
report to Parliament in September 1992.
The scope of the Committee probe as summarized by the Kenya Human
Rights Commission12 was to:
1. Investigate the root causes of the clashes that rocked the country
since 1991;
2. Identify the person(s) who might have perpetrated or participated
in the clashes and in this regard,
3. Identify politicians and political parties, organized groups,
general public, administration, police and security personnel and
local and international media involved in or responsible for the
violence and
12. LEST WE FORGET: The Faces of Impunity in Kenya, Kenya Human Rights Commission, August 2011
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4. Make recommendations that would help to avert such clashes in

the future.
The Committee conducted numerous trips to the various parts of the
country affected by the clashes and also interviewed more than 836
witnesses. In its report, the Committee analysed critically the roles
played by politicians, political parties and security personnel, among
others, and made its recommendations in that regard so as to avoid the
recurrence of similar incidents.13
The Kiliku Committee Report, when put to a vote of the National Assembly,
was not adopted for being shallow, inadequate and malicious. But
the Houses comprehensive rejection of the Kiliku Report did not stop
the newspapers, campaign organisations, foreign governments and the
KHRC giving it credence and asking for its implementation.
2.2.2. The Judicial Commission Appointed to Inquire into Tribal

Clashes(The Akiwumi Commission)
On 1st July, 1998, a presidential commission of inquiry, the Judicial
Commission Appointed to Inquire into Tribal Clashes in Kenya, under
Mr. Justice A. M. Akiumi, was established.
This Commission was crafted to justify the manipulation of the violence
to fit the tribal narrative, whereas the violence was in real essence state
sponsored. Its very name betrayed the apparent narrative that needed
to be told with regards to the violence. It had been rigged from the
beginning.
Known as The Akiwumi Commission, it was charged with determining
the causes of ethnic violence from 1991 to 1998 and making specific
recommendations, including identifying for prosecution those found to
be responsible.
Taking testimony from over 200 witnesses over 11 months, the Akiwumi
Commission focused particularly on the 1997 outbreaks of violence in
13. Ibid
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Coast Province.
Akiwumi presented his report to President Moi on 19thAugust, 1999. Its
contents, however, were to remain secret until the report was finally
published by the Attorney General on 18th October, 2002.
The Akiwumi Commission had recommended that 189 people be
investigated to ascertain whether they had played any part in the tribal
clashes that occurred between 1991 and 1998.
The handling of the Akiwumi Commissions investigation, however, and
the recommendation it made call into question the validity of its inquiries
and casts serious doubts as to its being an objective and independent
body.
2.2.3 Jesse Jackson Visits Kenya
In 1998 after the Likoni violence, President Clintons Special Envoy
for the Promotion of Democracy in Africa, Rev. Jesse Jackson, visited
Kenya and toured areas of the Rift Valley affected by political violence.
Rev. Jackson spoke out strongly against the violence both publicly and
in a meeting with President Moi. As a result of his urging, President Moi
visited the affected areas shortly afterwards. This was the second trip
by Rev. Jackson
The local donor representatives who met Rev. Jackson failed to publicly
spell out the nature of the violence and its links to government. They
showed little or no interest in providing assistance for the newly
displaced and the visit did little to remedy the situation of the victims
2.2.4 The International Community and Western Donors
The international community responded mainly with strategies and tools
typically used for post-conflict peace building and conflict management
phases of prevention humanitarian assistance, resettlement, and the
promotion of reconciliation14. The international community did not also
14. Stephen Brown Quiet Diplomacy and Recurring Ethnic Clashes in Kenya. From Promise to Practice:
Peace Betrayed:
12
officially recognize the role of KANU in inciting the main incidents of

violence. The international community engaged in low keydiplomatic
pressure, avoiding confrontation and offering little or no public censure
of the government and no aid conditionality or sanctions.
The international community only seemed to monitor the violence,
sometimes send observers, and increased quiet diplomacy and had by
1994 almost altogether backed down to concentrate on economic and
other political issues. The international community did not attempt more
proactive crisis prevention, management or accountability as would be
the case in 2008.
The best coordinated response from the international community
was through the UNDP. The UNDP took the lead in channelling the
international communitys response to the violence in the Rift Valley.
In 1993 it began a $20 million project in association with the Kenya
Government, titled Programme for Displaced Persons and Communities
Affected by the Ethnic Violence. A number of bilateral donors (including
Austria, Denmark, Finland, Japan, The Netherlands, Sweden, the United
Kingdom, and the United States) and the European Union supported
the UNDP project and did not set up their own assistance programmes,
thereby avoiding direct involvement.
The World Bank, the International Monetary Fund, and bilateral donors
showed they had different priorities that centred around the economy.
The United Nations was reluctant to intervene in the internal affairs of
Kenya at that time before getting involved through the UNDP while the
United States in particular seemed to be soft on the Moi regime following
its cooperation on the war on terror that had become local with the 1998
bombing of the US embassy in Nairobi15. Faced with little intervention
from the international community, the KANU regime under President
Moi continued to orchestrate the political violence with impunity.
Strengthening UN Capacities for the Prevention of Violent Conflict (Boulder: Lynne Rienner, 2003): 69-100.
15. Joel D. Barkan and Jennifer G. Cooke, U.S. Policy Toward Kenya in the Wake of September 11: Can
New Antiterrorist Imperatives Be Reconciled with Enduring U.S. Foreign Policy Goals? Africa Notes no. 4
(December 2001).
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2.2.5. The United Nations Development Program (UNDP)

Displaced Peoples Programme
Between 1993 and 1995, the United Nations Development Program

(UNDP) administered a program to return an estimated 300,000 persons
who were driven off their land by state-sponsored violence.
This program was intended to reintegrate the people who had been
displaced by the ethnic violence since 1991, with children accounting
for as much as 75 per cent of that population and female-headed
households comprising an estimated 40 per cent. The stated objective
of the programme was the reintegration of displaced populations into
local communities, prevention of renewed tensions and promotion of
the process of reconciliation.16
In terms of offering effective assistance, protection and reintegration to
the thousands of internally displaced Kenyans, the UNDPs record fell
far short of what it could, and should, have been. Ultimately, the manner
in which the programme was run resulted in the greatest attention
being placed on that part of the program that was relatively the easiest
and least politically controversial to administerthe relief partand
neglect of the protection, human rights, and long-term needs of the
internally displaced.17
On December 24, 1994 an incident occurred that was so extreme as to
result in the eventual closure of the UNDP project. In the middle of the
night, police and KANU youth wingers razed the Maela camp, which
housed 10,000 displaced people, and forcibly removed 2,000 Kikuyu,
dumping them at three sites in Central Province, their so-called ancestral
province.
This incident became the lowest part in the controversy ridden
programme and blemished the UNDPs credibility even as it continued
16. Programme for Displaced Persons and Communities Affected by the Ethnic Violence, UNDP, February
1994.
17. Failing the Internally Displaced: The UNDP Displaced Persons Program (New York: Human Rights Watch/
Africa, 1997).
Peace Betrayed:
14
to belittle the incident, terming it, a hiccup in an overall positive

programme18. The most concerted effort to resettle victims colapsed
shortly thereafter. Donors from henceforth supported various projects
in reconciliation and peace building, but with little coordination from a
central agency taking charge.
2.2.6 Local Level Efforts
The most concrete local action with regard to victims of the violence
came from the local church. Churches and schools in safe areas were
usually the first destination for people displaced from conflict areas. For
example, in 1992, victims in the Molo town and Sitoito camp areas made
camp in churches and received food and clothes under the auspices of
the Catholic Diocese of Nakuru19.
The Church would also be in the forefront in pleading the case for the
victims of the violence. The Catholic Church in particular, led by the
Nakuru Diocese Bishop, Ndingi Mwana aNzeki, was foremost in the
advocacy. In an incident in 1993, Prof Wangari Maathai was stopped from
opening a planned seminar for the victims of the Molo tribal clashes by
policemen led by Rift Valley provincial CID boss David Kipkemei Korir,
the Nakuru OCPD Philip Cheruiyot and senior Special Branch officers.
The officers were criticized by Bishop. aNzeki, who argued with the
policemen that their actions were a violation of human rights and that
since the victims of Molo and Burnt Forest sought frefuge in their church
compound, no government officer had come to console with them. After
five days of negotiations between the District Commissioner and the
Church, access to the displaced was allowed.20
The Church would also raise the alarm on behalf of victims or where it
received intelligence of impending attacks. Bishop aNzeki, in an a widely
18. On December 24, 1994 an incident occurred that was so extreme as to result in the eventual closure of
the UNDP project. In the middle of the night, police and KANU youth wingers razed Maela camp, which
housed 10,000 displaced people, and forcibly removed 2,000 Kikuyu, dumping them at three sites in Central
province, their so-called ancestral province. Even then, UNDP continued to defend the government, terming
the incident a hiccup in an overall positive program
19. Daily Nation (Nairobi), September 20, 1992
20. Daily Nation (Nairobi), March 3, 1993
Peace Betrayed:
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publicized call from the altar, told his congregation at the Cathedral of
Christ the King in Nakuru that unidentified lorries and a helicopter were
transporting unknown people into the Rikia forest.21.
Church efforts at peace building and reconciliation were also highly
pronounced, with communities being brought together under the
Church, especially under the Small Church Community Groups (SCSG).
3.0.0 The 2007-2008 Elections

The 2007-2008 post-election violence has become Kenyas most
infamous cycle of violence overshadowing all prior cycles of the postIndependence era, while its victims have become the most identified
and in whose name the ICC case has been instituted. In many ways, the
contestation over these victims victimhood has been at the centre of
the 2007-2008 post- election violence resolution.
3.1.0 The Nature of the Violence
On 30thDecember 2007, an announcement by the Electoral Commission
of Kenya (ECK) that President Mwai Kibaki had won a bitterly contested
election plunged the country into a political, security and humanitarian
crisis. Between December 2007 and February 2008, protest riots in the
name of mass action, attempts at containment by the security forces
and revenge attacks from both camps caused over 1,378 deaths, 3,335
injuries and more than 352,527 internally displaced persons (IDPs).22
The two coalitions that were at the centre of the electoral contest and
its violent aftermath, the Orange Democratic Movement (ODM) and the
Party of National Unity (PNU), included support from different ethnic
communities of the country. The Kikuyu, Embu, and Meru from the
Central and Eastern provinces with a strong migrant presence in Nairobi,
21. Daily Nation (Nairobi), September 4, 1996
22. Commission of Inquiry into the Post-Election Violence (the CIPEV, or The Waki Commission)
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Coast Province and the Rift Valley and other parts of the country formed
the bedrock of PNU Support. The Luo, Luhya and Kalenjin from Nyanza,
Western Provinces and the Rift Valley with a strong migrant presence
across the country as well formed the bedrock support for the ODM.
The Muslim populated areas of Northeastern and Coast provinces also
provided a strong backing for ODM.
The violence, for the first time in the history of Kenyan political violence,
took an ethnic dimension. The ethnic groups allied to ODM were the
first to protest the election result announcement and unleash violence
in several areas across the country.23 The violence took the form of forced
displacement of people, burning down of farms, houses and businesses
allied to the opposed groups, and the rape, killing and injury of victims.
Government infrastructure was also targeted in the violence as the
President-elect was also had of government.24
On the other hand, ethnic communities allied to PNU who suffered in
the first wave of attacks regrouped and countered the violence in their
own backyards by targeting communities allied to ODM. The use of
militia groups in the violence who had largely existed before as criminal
groups, arose especially the Kikuyu-allied militia, The Mungiki25. The
violence took the form of forced displacement of people, burning down
houses and businesses allied to the opposed groups, rape, killing, injury
and the forced circumcision of men. There were allegations of police
killings as they sought to intervene in ending the violence.
Within six weeks, the violence had come to an end as power-sharing
23. Table 3.2
24. The violence in Kisumu and other towns of western Kenya started on 29 December, as a protest against
delays in the announcement of results. The next day, immediately after the ECK announcement, riots broke
out across the country, mainly in Nairobi, Kisumu, Eldoret (the scene of the terrible church massacre which
did more to focus and sustain international attention on the erupting crisis than anything else) and Mombasa.
Odinga supporters turned their anger on those they perceived as supporters of Kibaki, mainly members of the
Kikuyu tribe. The ferocity and speed of the violence caught many by surprise. Hundreds were killed in less than
24 hours. Houses and shops were set ablaze. Thousands began fleeing. By the second day, Kenya appeared
to be on the brink of civil war. KENYA IN CRISIS Africa Report N137 21 February 2008 International Crisis
Group.
25. Non-Kikuyu gangs such as the so-called Taliban and Baghdad Boyslargely Luo-basedand the Sabaot
Land Defence Force, the Chinkororo of Kisii origin and other previously organised criminal groups were also
responsible for some of the more organised violence.
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negotiations between the two antagonists Raila Odinga and Mwai

Kibaki were now in play as mediated by former UN Secretary General
Kofi Annan under the auspices of African Union and international
community support. Several initiatives to study, map and ensure the
ugly incidents were never repeated took place, including initiatives in
the National Accord that was finally signed.
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3.2.0 Table of 2008-200 Post-election Violence Victims

Table 3.0
Table 3.0 Waki Report 2007/2008 Post election Violence
Area
Date
RIFT
Nandi
Hills,Nandi
North,Nandi South
VALLEY
Lives
Lost
People
Injured
People
Displaced
Property
Destroyed
508
Injured, 3
Rapes
Damages
3000 1,000 Houses

Burnt
Narok:
Songoo,
Tendwet,
Kimogor,
Nkopen, Olmekenyu
Centre, Oleshapani,
Meleleo, Ololungua
Trans Nzoia: Trans

Nzoia West, Githamba, Timboroa, Kitale,
Salama
105 389 + 119

Rape Cases
UASIN
GISHU;
Kiambaa, Langas, Juruma, Hawaya, Malime, Tarakwa, Munyaka, Kapsoya
30/12/2007
241
726
21,749 52,611 Houses Burnt, 58

civilian motor
vehicles and
2GK vehicles
Kuresoi
16/1/2008
150
170
66,000 1,564 Houses

Burnt
Nakuru District 31/12/2007

to 3/3/2008
Rift
Naivasha District
South Rift and Kisii

Region
Sotik
3/1/2008
2 60
479
26/1/2008 to
3/2/2008
84
Injured
+4 Luos
Forciby
Circumcised
45,000 1,215
Houses
Burnt
98
48
22,000
10000
3568 Buildings Burnt, 3
Chiefs Offices,
80 Schools,
2 Zonal
offices,7 Dispensaries
8,500
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Kericho
Western
Province
Mumias, Busia, Ka-

kamega,
Butere,
Lugari, Bungoma,
Vihiga
N y a n z a Kisumu
Province
11,250
98
From
29/12/2007 to
11/2/2008
117
256
35
Homa Bay
Rongo
Migori
Gucha
Nyamira,
Nyando,
Siaya,
Rachuonyo,
Kisii,
Bondo,
Borabu,
Suba,
Nairobi
Kibera, Kariobangi, 30/12/2007 to

Dandora
30/1/2008
55,862
2,886 50 GK
Vehicles
Destroyed,73
Business
Premises and
415 Residential Houses
Looted.
47
11
612
29
55
18
58
12
63
111 462+1 man

penis cut
off.
Toi Market
Burnt for
3000 traders
Central
Province
4/1/2008 to
5/3/2008
8,000
C e n t r a l Kiambaa Division
Province
1,435
2,100 12 Houses
Burnt
Githunguri
sion
Divi-
Karuri Police Station
30
Kirima (Nyandarua
North)
900
Kiambu West District
19,096
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Nyeri Police station
900
Tigoni Police Station
5,390
Ruiru
620
Juja
600
Thika
552
Maragua
68
Kinangop
66
Karatina
193
Kikuyu
500
Thika
5,437
Kiambu East
8,164
Nyeri South
2,236
Nyeri North
3,872
Muranga North
2,503
Muranga South
2,910
Gatundu
3,452
Nyandarua South
16,800
Nyandarua North
19,605
Kirinyaga
149
Othaya
90
Coast
Province
Mombasa
24
Vehicles
Burnt,
240 Residential
Houses,240
Commercial
Houses
Burnt
Peace Betrayed:
21
Changamwe
Likoni
20 Shops
Broken
Into ,4
Houses
Burnt
109
10,000
Source; the Commission of Inquiry into Post-election Violence (CIPEV)

Report
3.2.1 Responses to the Violence
The main response to the 2007-2008 political violence and how it
impacted on the victims mainly came through the peace mediation that
was undertaken under the auspices of the Panel of Eminent African
Persons appointed by the African Union. This process would lead to
the signing of the Agreement on the Principles of Partnership of the
Coalition Governments and the National Accord that would manage
the whole process, including the need for resettlement and restoration
of the post-election violence victims. The National Accord process laid
out a series of agenda and resolutions with timelines for the national
healing and reconstruction process.
3.3.1 Operation Rudi Nyumbani
Operation Rudi Nyumbani, a resettlement process by the Government
of Kenya started in 2008, was also a major response and action on
behalf of the victims of the 2007 post-election violence that led to the
formulation of a policy and an Act of Parliament on managing internal
displacement of people. In September 2008 a cash payment programme
for resettlement of all IDPs was launched, with each household set to
get KSh400,000.
A report published in January 2015 compiled by the Permanent
Representative Committee on Refugees, Returnees and Displaced
Persons of the African Unionshowed that over 663,921 people, or about
250,000 households, were displaced during the 2007/8 post-election crisis
Peace Betrayed:
22
and the government had resettled about 303,466 displaced households

over the last decade, a figure higher than the number of households
displaced during the crisis because it took in other displaced people
such as those evicted from various forests and water catchment areas26.
3.3.2 The International Community: The Power Sharing deal

After a week of violence that stretched across the country in specific
hotspots, it became apparent that some form of intervention was
necessary. International pressure mounted in earnest. In the midst of
the chaos, US Secretary of State Condoleezza Rice and David Miliband,
the British Foreign Secretary, issued a joint statement calling for an end
to the violence. The UN through the Secretary General Ban Ki Moon
set out goals that needed to be achieved as soon as was possible in the
Kenyan situation27. A host of African leaders, including Nobel Laureate
Desmond Tutu and Ugandan President Yoweri Museveni came to Nairobi
to call for dialogue between the warring groups. The then Ghanaian
President John Kufuor, African Union Chairman arrived and managed to
persuade both parties to start political dialogue with the help of a Panel
of Eminent African Person appointed by the African Union.
The panel would be chaired by Kofi Annan joined by former Tanzanian
President Benjamin Mkapa and former South African First Lady Graca
Machel. Annan, a former UN Secretary General, has global stature and
credibility, with experience in mediating conflicts in Iraq, East Timor,
and the Israel-Palestinian territories. The unique team, mandated by
the AU, relied on worldwide diplomatic support, and had the technical
support of the United Nations, including the Department of Political
Affairs (DPA), the United Nations Development Programme (UNDP),
26. Daily Nation (Nairobi), January 31, 2015
27. The Kenya situation was the first instance in which the United Nations employed a responsibility to
protect (RtoP) lens in shaping its responses to an ongoing crisis. The Secretary-General decided, following
consideration by the Policy Committee, that the world bodys first goal in Kenya should be to prevent the
further commission or incitement of RtoP crimes and violationsgenocide, war crimes, ethnic cleansing,
and crimes against humanity. As Kofi Annan has since related, he adopted the same perspective in his mediation work there. Of particular concern, given the escalating violence, were possible acts of ethnic cleansing
or crimes against humanity. E, Lindenmayer., J .L Kaye., A Choice for Peace? The Story of Forty-One Days of
Mediation in Kenya, IPI August 2009
Peace Betrayed:
23
and United Nations Office in Nairobi (UNON), as well as the Genevabased Centre for Humanitarian Dialogue (HD Centre)28.
At a session held on 1st February, 2008 at the Serena Hotel, Nairobi,
the parties to the Kenyan Dialogue and Reconciliation Meeting on
the Resolution of the Political Crisis and its Root Causes, under the
chairmanship of Annan, namely Government of Kenya/PNU and the ODM
agreed on four main agenda for the talks. These were; immediate action
to stop violence and restore fundamental rights and liberties, immediate
measures to address the humanitarian crisis, promote reconciliation,
healing and restoration, how to overcome the current political crisis
and finally addressing the longstanding issues and solutions including
constitutional reform and inequalities in the country. Subsequently,
on 4th March, 2008, the parties agreed to form two commissions the
Independent Review Committee (IREC) and the Commission of Inquiry
on Post-election Violence (CIPEV). The two would be non-judicial
bodies mandated to investigate and report on different aspects of the
problematic issues in the crisis29.
After a dogged series of back-and-forth with a team of negotiators
appointed by both the PNU and ODM principals, the mediation process
seemed to make little progress with both teams digging in for their
preferred outcomes30. But on 27th February, Annan met the two principal
leaders at the Office of the President at Harambee House. Machel had
returned to South Africa, former Mkapa and his successor President
Jakaya Kikwete had come to help Annan close the deal.
After five hours, Annan had his deal; a 50/50 split of all the Cabinet
positions between the two sides and an agreement The Agreement on
the Principles of Partnership of the Coalition Government. This process
resulted in the draft National and Reconciliation laws that would be
28. E, Lindenmayer., J .L Kaye, A Choice for Peace? The Story of Forty-One Days of Mediation in Kenya, IPI
August 2009
29. Kriegler and Waki Reports Summarised Version; Dialogue Africa Foundation, Revised Edition, 2009
30. The negotiation process took place in the Orchid Room at the Serena Hotel, where Kofi Annan and his
team led negotiations between PNU represented by Martha Karua, Sam Ongeri, Moses Wetangula and
Mutula Kilonzo. On the ODM side were James Orengo, Musalia Mudavadi, William Ruto and Sally Kosgei
Peace Betrayed:
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quickly submitted to Parliament and written into the constitution. When

Parliament convened on March 6th, the four bills legalizing the Grand
Coalition were passed without amendment.31
The independent Review Committee (IREC) Kriegler Commission came
up with proposals on the Electoral process from a review of the 2007
elections. The recommendations on electoral legal framework, the
organisational structure and operation of elections, and the composition
and mandate of the Electoral Commission, political parties, the media,
civil society organisations, opinion polls and electoral observation led to
electoral reform that largely helped manage the 2013 elections within a
proper elections management framework
3.3.3 The Commission of Inquiry into the Post-Election Violence
(CIPEV). (the Waki Commission)
The more notorious of the two commissions was however the
Commission of Inquiry intothe Post-Election Violence (CIPEV) or the
Waki Commission whose mandate had the biggest impact on the case
for justice for victims of the PEV. The Commission was appointed under
the Commissions of Inquiry Act (Cap 102) Laws of Kenya, but consequent
to the National Dialogue and Reconciliation Agreement.
CIPEVs findings relate to the testimony of 156 witnesses and 144
other witnesses who submitted depositions and recorded statements
when the Commission moved around the country from July 2008 to
September 2008 to gather evidence and other information on the postelection violence. The hearings were conducted in Nairobi, Naivasha,
Nakuru, Eldoret, Kisumu, Borabu and Mombasa. The Commission had
only a limited period to carry out these investigations and as such their
findings may not have been exhaustive.32
31. Consequently, when the agreement had been signed and people rushed into the streets to celebrate the
new year which had been stolen from them by the tragic crisis two months before, there was no doubt that
the pact had been brokered by Annan, but that peace itself had been chosen and embraced by the Kenyan
people. E, Lindenmayer, J .L Kaye, A Choice for Peace? The Story of Forty-One Days of Mediation in Kenya,
IPI August 2009
32. Kriegler and Waki Reports Summarised Version; Dialogue Africa Foundation, Revised Edition, 2009
Peace Betrayed:
25
The Commission made the following findings on the victims and

destruction that happened during the post-election violence
1. A total of 1,133 people died as a consequence of the post-election
violence. The geographical distribution of the deaths was
unequal, with most of the post-election violence-related deaths
concentrated in the provinces of Rift Valley (744), Nyanza (134)
and Nairobi (125). The districts of Uasin Gishu (230), Nakuru (213)
and Trans Nzoia (104) in the Rift Valley Province registered the
highest number of deaths related to post-election violence.
2. A total of 3,561 people suffered injuries inflicted by or resulting
from sharp pointed objects 1,229 from blunt objects, 604 from
soft tissue injury, 360 from gunfire, 557 from arrows, 267 from
burns and 164 from assault.
3. A total of 117,216 private properties (including residential houses,
commercial premises, vehicles, farm produce) were destroyed,
while 491 government-owned properties (offices, vehicles, health
centres, schools and trees) were destroyed.
4. Gunfire accounted for 962 casualties, of whom 405 died. This
represented 35.7% of the total deaths, making gunfire the single
most frequent cause of deaths during post-election violence. It
was followed by deaths caused through injuries sustained as a
result of sharp pointed objects at 28.2%.
5. The post-election violence was attributed to historical and longterm tensions in the conflict red spots that seem to have endured
since Independence, and intermittently boiled over to active
violence (investigated in part by the Akiwumi Commission in
1997) as well as the immediate trigger of perceived rigging of the
December 2007 presidential polls.
CIPEV made a number of recommendations to the Government. These
findings were also presented to the appointing authority, Annan. The
Peace Betrayed:
26
major recommendations as to the case for justice for the victims were
as follows:
In carrying out its TOR, the Commission had to make a crucial decision
on whether or not to name those persons alleged by various witnesses
to have perpetrated violence at some level. In the end, the Commission
recommended thorough investigation and eventual prosecution of
people alleged to have masterminded the violence in parts of the country.
These names were placed in a sealed envelope, together with supporting
evidence. Both were kept in the custody of the Panel of African Eminent
Persons, pending the establishment of a special tribunal to be set
up in accordance with the recommendations. However, in default of
setting up the Tribunal, consideration would be given by the Panel to
forward the names of alleged perpetrators to the special prosecutor of
the International Criminal Court (ICC) in The Hague to conduct further
investigations in accordance with the ICC statutes. The Special Tribunal
was never implemented as recommended despite two guarantees to
Kofi Annan and on 8th July 2009, Annan handed over the envelope to
Luis Moreno Ocampo.
4.0.0 The International Criminal Court
In 2005, Kenya ratifiedthe Rome Statute, the ICCs founding treaty,
giving The Hague-based court complementary jurisdiction for crimes
against humanity committed in Kenya. Complementary jurisdiction
means that the ICC can only step in if a state proves unable or unwilling
to investigate and prosecute crimes committed on its territory or by one
of its nationals.
Using this power, in July 2010 the ICC Ocampo invokedhis proprio
motu powers, for the first time ever, to request ICC judges to look into
PEV crimes. The proprio motu powers allow the prosecutor to open
Peace Betrayed:
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preliminary investigations without a referral from a state party or the

UN Security Council
On 15th December 2010 Ocampo named six Kenyans33, three from each
of the feuding sides,ODM and PNU. Those named were: Uhuru Muigai
Kenyatta, the then Deputy Prime Minister and Minister of Finance
(PNU) and now President of Kenya since 9 April 2013; William Samoei
Ruto,the then Minister for Higher Education, Science and Technology
(ODM) and now Deputy President of Kenya since 9 April 2013; Francis
Kirimi Muthaura, the then the Head of Public Service and Cabinet
Secretary (PNU); Henry Kiprono Kosgey, the then the Minister for
Industrialisation (ODM); Major General Mohammed Hussein Ali, the
then the Commissioner of Police; and Joshua arap Sang, a former radio
presenter at KASS FM, a radio station broadcasting in the Rift Valley.34
These cases at the ICC are the biggest attempt at the claim to find
justice for the 2007- 2008 election victims. While only the case against
William Ruto and Joshua Arap Sang continues in a series of setbacks
for the ICC on the other suspect cases, the very nature of the cases, the
foundational philosophy of the court and the stated objective of finding
justice for the victims of the post-election violence come into question.
4.1.0 The Foundation of the ICC and its Quest for Retributive Justice
The foundations of the International Criminal Court go back to the 1945
Nuremburg Trials that were set up to try the war criminals of World War
II. After the defeat of Nazi Germany in WWII, the Nuremberg Trials were
created by the United Nations in 1945 in the Treaty of London that gave
the responsibility to manage the trials to the victorious Allies, the US,
Britain, France, and the Soviet Union35. In that treaty, the Allied powers
concluded an Agreement for the Prosecution and Punishment of the
Major War Criminals of the European Axis, in which they established an
33. These six suspects came to be famously known as the Ocampo Six
34. Ocampo names Kenya chaos suspects, Daily Nation, December 15, 2010
35. Washington, E. (2008). The Nuremberg Trials: Last Tragedy of the Holocaust, Lanham: University Press of
America. p. 17).
Peace Betrayed:
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International Military Tribunal for the trial of those war criminals whose
offences have no particular geographical location 36The Charter of the
Tribunal granted jurisdiction over crimes against peace, war crimes, and
crimes against humanity, and over conspiracy to commit the crimes as
they were defined in the Charter.
In his book, The Nuremberg Trials: Last Tragedy of the Holocaust,
Ellis Washington proposes that the Framers of the United Nations and
its international legal arm, the Nuremberg Tribunal, utilized a defective
legal philosophy and jurisprudence sixty years ago where adherence
to this ineffective legal philosophy has virtually destroyed subsequent
international war crimes cases that in modern times have devolved into
symbolic show and farcical trials at The Hague.
Critics of the Nuremburg trials have called them out as a spectacle of
victors justice, mainly in the fact that the trials saw the vanquished
Nazis tried by the victorious Allies and that the standards of judgment
applied to the defeated Germans were not applied to the victorious Allies
who were also guilty of war crimes during the same conflict. Victors
justice is simply a form of vengeance that is hidden behind a curtain of
legality. It emanates from and leads to the concept of retributive justice.
Justice requires that crimes should be punishable by law.
Retributive justice requires that consequences to of crime should
be proportionate in their magnitude to the crimes. Evil incurs a
public debt that is only addressed adequately by retributive justice.
Retributive justice as argued by its proponents is one that is first and
foremost rooted in moral principle. When properly understood, it serves
society in important ways, especially by isolating individuals who are a
threat to society. It expresses social outrage at morally perverse acts; it
controls the extent to which the citizenry is victimized by criminal acts;
it rewards the perpetrator proportionately with consequences befitting
the crime; and it rehabilitates the offender by forcing him to reflect on
36. Paulson, S. L. (1975). Classical Legal Positivism at Nuremberg, Philosophy & Public Affairs, 4(2), 132158. p. 137).
Peace Betrayed:
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the grievous nature of the crime. Each of these elements is critical in

preserving the social order.37
At the centre of the theory of Retributive justice is the individual, the
person who has to be isolated from community for societys good.
The place of the Individual is a major tenet of western philosophy, the
individual is at the centre of western philosophy and the impact it has
had in moulding western civilization extends to every aspect including
the aspect of justice and in this case retributive justice. Western
philosophical tradition has the individual as central to understanding
justice.
The early modern theories of Thomas Hobbes, John Locke, and Jean
Jacques Rousseau in explaining the state of nature have the common
foundation of life as solitary. All three thinkers saw human beings in
the state of nature as isolated individuals, for whom society was not
natural.38
This understanding of human nature as individualistic underpins the
understanding and foundations of Western philosophy with regards to
justice. It has been criticized39 and even labelled by Francis Fukuyama
as the Hobbesean Fallacy40 because it posits that there was a time
that humans existed only as individuals while human evolution and
anthropology suggest that there was never such a time and that humans
have always existed in society with extensive social and political skills
more akin to Aristotles argument that humans are political by nature.
This philosophical tradition has been the foundation of the evolution
of Western justice and greatly influenced the Nuremburg Trials and
consequently its legacy in the International Criminal Court. This view
has greatly contributed to the aspect of perpetrator accountability
which, while critical in traditional domestic criminal law, encounters
37. Revenge and Retribution, T, Francis 2011
38. F, Fukuyama, 2011. The Origins of Political Order: From Pre-human Times to the French Revolution, pg 29
39 In his 1861 book Ancient Law: its Connection with the Early History of Society and its Relation to Modern
Ideas the English Scholar Henry Maine criticizes the state of nature theorists
40. F. Fukuyama The Origins of Political Order, pg 29
Peace Betrayed:
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great challenges in international criminal law, where the nature and

context of the crimes committed do not lend themselves directly to this
view as the framers of international courts would want
In re-examining the nature and history of genocide with particular
analysis of the Rwandan Genocide, Mahmood Mamdani41 contrasts the
nature of a localised conflict like the Rwandan case to the bureaucratised
and impersonal nature of the Holocaust. He states Whereas Nazis
made every attempt to separate victims from perpetrators, the Rwandan
genocide was very much an intimate affair. It was carried out by hundreds
of thousands, perhaps even more, and witnessed by millions
The resonance and participation of the genocide from below was
overwhelming and produces a specific challenge in examining the
Rwandan Genocide.
This particular social context of conflict, where participation is not
merely by individuals but by communities with grievances against
each other, presents the dilemma in trying to model justice for victims
around the ICC model that is essentially built for individual perpetrator
accountability. Mamdani contextualizes it in two great examples:
In its social aspect, Hutu/Tutsi violence in the Rwandan
genocide invites comparison with Hindu/Muslim violence at the
time of the partition of colonial India. Neither can be explained
as simply a state projectone needs to explain the large-scale
civilian involvement in the genocide. To do so is to contextualize
it, to understand the logic of its development.42
Rejecting easy explanations of the genocide as a mysterious evil force
that was bizarrely unleashed by a select group of individuals, Mamdani
situates the tragedy in its proper context. He brings to the surface
the historical, geographical, and political forces that made it possible
41.M, Mamdani. 2001. When Victims Become Killers: Colonialism, Nativism and the Genocide in Rwanda,
Princeton University Press
42. M, Mamdani. 2001. When Victims Become Killers: Colonialism, Nativism and the Genocide in Rwanda,
Princeton University Press Chapter 5.
Peace Betrayed:
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for so many Hutu to turn so brutally on their neighbors. This same

contextualixation is needed for the Kenyan political violence of 2008.
5.0. A Comparative Look at Election Violence in Kenya

All three cycles of Kenyan political violence have largely but erroneously
been drawn with a single brush along ethnic lines where tribes have
been staked against each other. It has not always been so.
Kenyan tribes are diverse; some are agrarian while others are pastoralists
with a considerable coastal population. We have Nilotes, Bantus and
Cushites who before the arrival of colonialism were exclusive and
independent self-governing communities. With the onset of colonialism
and the identification of Kenya as a viable white settler state, some
communities were displaced from their ancestral homes to pave way
for colonial white settlement in the white highlands, while others were
moved to provide labour for the white settlers in regions far away from
home43. Some were moved as far away as other continents to mainly
fight World War I for the British as far afield as Burma.44
This displacement of people led to settlement outside original tribal
ancestral lands. At Independence in 1963, little was done to restore
displaced communities to their lands. The resultant haphazard
resettlement schemes and the rise of land buying companies further
encouraged people to move from ancestral lands to new schemes that
had been created most especially in the Rift Valley where traditional
Kalenjin and Maasai lands had been taken away.
43. It is often suggested that land scarcityand its distributionaggravated by other factors such as a
high rate of population growth and environmental degradation, has contributed to the violent clashes
in Kenya. Since the 1920s, political and economic factors have encouraged the movement of populations
within Kenyas national borders, often to zones where they constitute ethnic minorities. For instance,
numerous Kikuyu and members of other ethnic groups migrated after being dispossessed by the British.
Others moved to Rift Valley Province as farm labourers, farmers, traders, or civil servants. After Independence, the Government purchased many British settlers fertile farms for distribution to Africans. A large
number of Kikuyu benefited from these land transfers, either because of their greater access to capital to
purchase the land (due to their relations with the colonial government and economy) or because of their
political connections to Jomo Kenyattas Kikuyu-dominated postcolonial government
44. D. Killingray., W. J. Currey 2010, Fighting for Britain: African Soldiers in the Second World War
Peace Betrayed:
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Nonetheless, these population movements did not cause any largescale violent attacks before 1991. Historically, members of Kenyas forty
two ethnic groups have coexisted, traded, and intermarried, often in a
symbiotic relationship between pastoralist and agricultural communities.
The result was a peaceful coexistence that led to Kenya being branded
an island of peace in a sea of turmoil. This settlement pattern would
however later be exploited by the government of President Daniel arap
Moi in the 1991 and 1997 elections to kill the vote45 in certain regions
by ensuring perceived opposition party supporters were displaced from
their homes and therefore disenfranchising them. This would allow
KANU to retain control in the regions where it had a significant power
base.
Kenyas political history since Independence was dominated by a single
party, the Kenya African Union (KANU), for 39 years following the partys
victory in the 1963 elections; Kenya became a de facto one-party state
under President Jomo Kenyatta. Moi took office in 1978 following the
death of Kenyatta. In 1982, following a coup attempt, the Moi regime
amended the Constitution and subsequently Kenya officially became
a one-party state. Police and security forces dispersed demonstrations
against this move forcibly. Only after intense internal strife and donor
pressure did Moi allow multi-party elections to be held in 1992 and he for
the first time faced a formidable challenge at the ballot.
In order to keep power through the ballot, the Moi state manufactured
political violence in strategic areas where they could manipulate voting
patterns by displacing certain communities perceived to support the
opposition parties. While the commonly used term ethnic clashes
suggests reciprocal conflict based on tribal animosity, it belies the
overall one-sided source of the violence. The main perpetrators of the
violence were in fact to be linked to prominent leaders of the ruling
party KANU and though a few revenge attacks occurred, the victims
were overwhelmingly members of ethnic groups associated with the
45. Killing the Vote: State-Sponsored Violence and Flawed Elections in Kenya, Mwangi, Kagwanja. KHRC
1998
Peace Betrayed:
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new multiparty opposition46. The aggressors were organised groups of

youth predominantly from the Kalenjin and Maasai used to further the
ruling party and individual interests on the pretext of community or land
interests. The year 1997 saw the conflict move to the coastal area of
Likoni, where tribes from upcountry were evicted in the same fashion by
the local indigenous people.
The victims of these earlier cycles of violence were on one hand the
Kikuyu, Luo, Luhya and the Kamba who were targets of the violence
while on the other hand were the organised groups of youths from the
Kalenjin, Maasai and Giriama, who were used by politicians to perpetrate
the violence. Both the targets and the aggressors were victims in a
conflict whose beneficiaries were KANU politicians and the regime of
President Moi.
The 2007-2008 elections however took a different turn in the cycle of
political violence. While the 1992 and 1997 cycles were perpetrated by
the government of President Moi and were concealed, manufactured
and packaged as ethnic violence, in 2007, the violence had been
diffused and took an ethnic nature where communities rose against
each other in attacks and counter-attacks in the areas where opposing
political support was present. The ethnic nature of political violence was
widespread with victims ranging across different ethnic groups. These
victims and the form of justice that they were to receive have created a
conflict in the Kenyan state especially with the entry of the ICC as the
body that would seek justice in the form of perpetrator accountability.
The ICC had narrowed down to six perpetrators, whom Prosecutor
Ocampo had accused of harbouring the greatest responsibility. The List
of six that had Henry Kosgey, William Ruto and Joshua Sang on one
hand and Uhuru Kenyatta, Francis Muthaura and Hussein Ali on the
other hand became a most contentious, polarising and divisive issue
since as established it is based on a system of individual retributive
46. A. Malik, Ethnic Parties, Political Coalitions and Electoral Violence: An Analysis of Kenyas Presidential
Elections from 1992 to 2013 Northwestern University June 3, 2014
Peace Betrayed:
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justice that has failed to appreciate the communal and political context
the violence took place in and the need to restore the victims of the
violence.
6.0 The ICC Approach; Retributive Justice
Thambo Mbeki and Mahmood Mamdani47 argue that the logic between
current approaches of prioritizing perpetrator (individual) responsibility
are contrary to actually addressing the underlying political issues that
are communitarian in nature. They give the example of CODESA (the
Convention for a Democratic South Africa) and the way it brought
about a South Africa that addressed its huge problems coming from
the apartheid era through negotiations rather than the pursuit of
perpetrators of the grave injustices of that infamous era.
The ICC, whose form and substance is largely borrowed from the
Nuremburg Trials of World War II, is built for accountability in the exclusive
domain of a Western democracy, where the individual accountability
of the vanquished took centre stage. The application of The Haguebased ICC on conflicts that do not lend themselves to its construction
of individual perpetrator accountability and in contexts whose political
organisation, participation, determination, redress and justice are built
on completely opposed ideologies creates the huge backlash the ICC
is facing in trying to end conflicts through a court system. This conflict
has brought about serious ramifications for the Court that has at times
threatened its very existence48
This has led to the opposition by African states to the ICC that is built
around individual retribution while the context of the conflict and the
victims revolves around the regulation of relationships between opposing
groups and not the singling out of individuals within these groups for
persecution. This regulation of relationships was the hallmark of the
47. The International New York Times, Op-Ed Courts Cant End Civil Wars
48. The African National Congress (ANC) party of South Africa has been the latest body to resolve to withdraw
its country, South Africa, from the ICC. Other countries, including Kenyas Parliament, have made resolutions
to withdraw entirely from the Court
Peace Betrayed:
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justice and reconciliation process in post-apartheid South Africa. In

Kenyas cycles of political violence, both injury and restoration should
have a collective approach that has to be the basis of addressing the
plight of victims.
Central to the kind of justice dispensed at Nuremberg and carried on
under the ICC was the widely shared assumption that there would be
no need for winners and losers (or perpetrators and victims) to live
together in the aftermath of victory. Yet as always as is the case, both
perpetrators and victims live together, sometimes being as close as wellknown neighbours who have shared a home for decades. This particular
aspect in many ways raises critical issues for post-conflict order where
perpetrators and victims have to live together and the manner in which
they do will be greatly determined by how the issue of justice will be
handled in the immediate aftermath of the conflict.
6.1 The ICC and Victims
The ICC has based its case on pursuing justice for the victims of the
2008 post-election violence. Its actions have however shown that it has
been a selective approach to victims. This has resulted in:
a) Manufacturing Victims; as the history enumerated above shows,
Kenya has a long list of victims. The ICC chose to concentrate
on the 2007-2008 victims but even in this, its selective approach
to victimhood is apparent. The Court chose to pursue justice
against certain individuals representing specific ethnic groups
and certain events leaving others involved in the conflict outside
of its net. At this point, even before the six cases broke down
to two, victims had been segregated and some found unworthy
of the Courts justice. In doing this, the Court had started on its
selective use and retributive approach while creating new fault
lines in the complex web that is Kenyan ethnicity. Justice for the
victims in Nairobi, Kisumu, Coast and Western provinces was
Peace Betrayed:
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never attempted by the ICC.

b) Misuse of Victims; the Court has shown it has little regard for
justice through the continued misuse of victims all along the case.
While the Court acts in the victims names, its pursuit has shown
itself to be a selfish errand in self-promotion. Its geopolitical
games in seeking to placate its major promoters while serving
their interest in the Kenyan case has rendered the victims pawns
in a chequered board game.
c) Making Victims; retributive justice has the indistinct
characteristic of turning suspects into victims. This being the
ICCs main approach in its selective approach to justice, it has
made a wholesale condemnation of the Kalenjin community,
calling them a criminal network. The case is meant to prove
that Kalenjin culture, Kalenjin elders, Kalenjin youth, Kalenjin
athletes, Kalenjin businessmen and Kalenjin political leaders are
all part of a criminal network that was supposedly led by Ruto
and Sang. The case predetermines that Ruto and Sang are in
The Hague on behalf of a whole community. In having this case
proceed, not only Ruto and Sang have been cast as victims but
the entire Kalenjin community.
The effect of this is that the ICC is increasingly polarising the country,
holding Kenyas consolidation of peace hostage, fuelling conflict and
endangering peace.
7.0 A Final Solution for all Victims of Political Violence; the Case for
Restorative Justice
This issue of victims and the determination of what we owe them in
respect, restitution, restorative justice, vindication of their dignity and
the need for closure must be addressed in the context their victimhood
arises and not outside in a completely different context with contrary
ideological foundations49. The fact that they will also continue to live
49
T. Govier, Victims and Victimhood, Broadview, 2015

Peace Betrayed:
37
with people they consider the perpetrators of their victimhood further

necessitates the need for a wholesome solution.
The case for a different kind of justice that is built for the healing,
restitution and accountability for this kind of conflict and its victims is
needed. Further the need for restoration of victims from previous cycles
of violence should be addressed to ensure that Kenya moves forward
as one nation. The exclusive emphasis on victims of the 2008 elections
at the expense of the others, no matter the causes of their victimhood,
sets aside classes of victims and invariably leads to a classification of
victims that perpetuates the notion of exclusivity that haunts Kenyan
society.
The ICC has become inimical to the resolution of the 2007-2008 conflict
through its separation of prior victims of earlier cycles of violence,
excluding the context of their victimhood, sharpening the sense of
separation by construction of select offenders, select victims,
select witnesses and select criminal events, thereby leaving victims
disaffected and disjoined from the process and a polarised social order
with a growing sense of discord.
In their International New York Times article, Mamdani and Mbeki give
an illustration of how a situation where groups involved in prior conflict
can find a lasting solution using the post-apartheid experience in South
Africa.
South Africas Codesa talks represented a recognition by both
sides that their preferred option was no longer within reach:
Neither revolution (for the liberation movements) nor military
victory (for the regime) was in the cards. Both sides were quick
to grasp that if you threaten to put your opponents in the dock,
they will have no incentive to engage in reform.
Rather than criminalize or demonize the other side, as was
tempting, they sat down to talk. The process was punctuated
Peace Betrayed:
38
with many a bloody confrontation, like the assassination of the

popular South African Communist Party leader, Chris Hani, but
the eventual outcome decriminalized the alleged perpetrators
and incorporated them into the new political order. Yesterdays
mortal enemies became mere adversaries.
Just as the violence in South Africa in the early 1990s was a
symptom of deep divisions, the same is true of extreme violence
in todays Kenya, Congo, Sudan and South Sudan. Nurembergstyle trials cannot heal these divisions. What we need is a
political process driven by a firm conviction that there can be no
winners and no losers, only survivors50
In Kenyas long history of political violence, no one is wholly innocent
and no one wholly guilty and the contexts in which this violence happens
involve hundreds of thousands of people in a cycle that repeats itself
during electoral periods.
To call for justice through the ICC in a conflict like the Kenyan one is
to continue holding a whole country hostage to the past without giving
opportunity for meaningful closure and restitution to victims and the
opportunity for moving into the future. As is the case in the Kenyan
cases, the ICC has continued to be a polarising issue that has split
the country along new ethnic lines that did not exist before 2008, with
tensions rising as the Court digs in51.
The March 2013 elections where previously opposed camps came
together in the Jubilee Coalition underpinned by the ICC issue raised
new fissures as the ICC and its future was the main campaign issue. The
2013 election was in essence a referendum on the ICC and its involvement
50. The International New York Times Op-Ed Courts Cant End Wivil Wars.
51. In September of 2015, a Jubilee Member of Parliament, Moses Kuria, made a confession at a prayer
rally for the ICC suspects where he asserted that together with other PNU members, they had cooked up
evidence and witnesses against William Ruto and presented it before commissions that were investigating
the violence. This allegation became a huge and polarising issue as it drew in members off ODM in a divisive
and bitter exchange on who fixed whom. The political tensions arising from this allegation have brought to
the forefront fractures that had been slowly healing and has split the country into camps yet again
Peace Betrayed:
39
in the Kenyan case. The anti-ICC camp in the Jubilee Coalition won the
election; the ICC however continues to dig into healing wounds. It is
this splitting of victim, offender and their community from processes of
resolution that continues to further polarise the country and aggravate
the situation of victims.
Restorative justice as aprocess in post conflict situations like Kenyas
tends to be more effective. Restorative justice is concerned with
healingvictims wounds, restoring offenders to law-abiding lives,
and repairing the harm done to interpersonal relationships and the
community rather than attempting closure on harm through retribution.
American scholar Michael Umbreight explains it in a most succinct way:
Restorative justice emphasizes the importance of elevating the
role of victims and community members through more active
involvement in the justice process, holding offenders directly
accountable to the people and communities they have violated,
restoring the emotional and material losses of victims, and providing
a range of opportunities for dialogue, negotiation, and problem
solving, whenever possible, which can lead to a greater sense of
community safety, social harmony, and peace for all involved.52
Through restoration victims take an active role in directing the exchange
that takes place, as well as defining the responsibilities and obligations
of offenders. Offenders are encouraged to understand the harm they
have caused their victims and take responsibility for it. Restorative
justice aims to strengthen the community and prevent similar harm
from happening in the future.53
In order to fully and finally restore the whole gamut of victims in Kenyas
history, the following stages in the process need to be brought about:
52. M. S. Umbreit; R B Coates; B Kalanj, Victim Meets Offender: The Impact Of Restorative Justice and Mediation 1994 (Criminal Justice Press)
53. J. A. Jenkinss discussion on Types of Justice, inThe American Courts: A Procedural Approach (Jones
& Bartlett Publishers, 2011)
Peace Betrayed:
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1. Elevate the Role of Victims; Victims need to be at the centre of

any justice initiative undertaken for their sake. The resettlement of
victims enters its final phase in October 2015.54 In the accountability
sphere however, there remains many issues to be discussed with
regards to cycles of violence prior to the 2008 victims and even
the 2008 victims are largely spectators and victims a second time
at the ICC, where their victimhood is a critical item of a divisive
and retributive case that continues to dig deep into their injury
without any considerable restoration being offered.
2. Bring the Community to the Fore; all political violence and
victimhood need to be addressed in the community where the
victimhood arose. It is critical that Kenya becomes the main
stage for the justice process where the victims, offenders, as the
setting where the injury arose from. Excluding Kenya from the
context undermines a critical part of the justice process since
neither victim nor offender can properly come to terms with any
processes currently underway.
3. Hold Offenders Liable to the People They Violated; Victims
and offenders need to meet face to face to address their history
for a true resolution of conflict, wrongs, injury and victimhood.
4. Restore Emotional and Material Losses of Victims; as the
resettlement of all historical victims of displacement continues,55
the emotional and psychological restoration of victims needs
to be addressed. Through the earlier stated stages of offenders
being held liable in front of the victims and in the place their
victimhood arises, the process of emotional restoration begins
and should close with the country moving forward as one.
5. Opportunities for Dialogue; the need for dialogue, negotiation
54. Daily Nation (Nairobi), October 12, 2015
55. ibid
Peace Betrayed:
41
and problem solving that is required to resolve this historical

burden is huge. A platform for this dialogue that can facilitate the
type of processes, information sharing, community involvement
and conflict resolution a conventional court process cannot
provide is necessary for the closure required.
Victims of political violence in Kenya have continued to be frustrated
and alienated from the process of finding justice for them, many have
entirely been forgotten with no input while all of them have no standing
in the current case at the ICC. To bring them to the centre a restorative
justice approach with the five critical steps above should be brought
into play to address their plight.
The most definitive way of doing this is through the establishment of a
truth and reconciliation commission. Mark Freeman has defined a truth
commission as
An ad hoc, autonomous, and victim-centered commission
of inquiry set up in and authorized by a state for the primary
purposes of (1) investigating and reporting on the principal
causes and consequences of broad and relatively recent patterns
of severe violence or repression that occurred in the state during
determinate periods of abusive rule or conflict, and (2) making
recommendations for their redress and future prevention.56
The established truth commission should in the least:57
1. Be a temporary officially sanctioned body; the Government
would need to officially unveil a body with the specific mandate of
political violence and any patterns that may present themselves.
A high profile commission independent of other state organs and
politics tasked with a the investigation is the appropriate kind of
body to seek resolution.
56. Freeman, M. (2006), Truth Commissions and Procedural Fairness (1st ed.), New York: Cambridge University Press
57. Peace and Conflict Review, Volume 3 Issue 2 2009, Page 4
Peace Betrayed:
42
2. Investigate the history of violence; A truth commission in

Kenya would need to take a historical perspective of political
violence and victimhood. By having victims as its centre, it
would seek to establish them within the context of the resolution
of their victimhood even as it seeks to hold the offender liable
while seeking to reintegrate them into the community that was
raptured by the violence.
3. Provide a report of recommendations; after conducting its
investigation, the commission should provide a report with
extensive statements made at public hearings58 and have
transitional justice and reconciliation as its ultimate goal.59
8.0 Conclusions
While Kenya has had a Truth, Justice and Reconciliation Commission
whose 2013 report60 was controversial from the beginning and has
largely been contested, the country needs to find a way of bringing out
the victims history in its own exclusive context61.
In his 2015 State of the Nation Address before Parliament, President
Uhuru Kenyatta noted the need for a restorative justice mechanism
for resolving Kenyas history of injustices. In the speech, the President
states:
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
58. This is as recommended by the United Nations High Commissioner for Human Rights
59. Bronkhorst, D. (1995), Truth and Reconciliation, Obstacles and Opportunities for Human Rights, Amsterdam: Amnesty International Dutch Section
60. http://www.acordinternational.org/silo/files/kenya-tjrc-summary-report-aug-2013.pdf
61. International Commission for Transitional Justice Report available at www.ictj.org/sites/default/files/
ICTJ-Briefing-Kenya-TJRC-2014.pdf
Peace Betrayed:
43
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
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.
In light of this new framework, the Kenyan Government should build
a truth and reconciliation commission within the restorative justice
approach that has been built in this report. Only then can we decisively
say that we have recognised the plight of the victims within our
community, acknowledged the causes of their injury and victimhood,
encouraged offenders to reintegrate into the community and promote
a healing process while recognizing the communitys responsibility for
the conditions that contribute to the cycles of political violence.
Peace Betrayed:
44
About The International Policy Group

The International Policy Group (IPG) is a nongovernmental organization dedicated to
sustainable Peace and Justice. Its mission is to generate and share knowledge on peace
and justice to positively influence policies and politics. IPG is primary concerned with
the governance, policy and institutional dynamics that impact on Peace and Justice,
especially in poor countries worldwide.
Broadly, IPG is motivated by the recognition that the existing global peace and justice
policy system has not adhered to the principle of equality of nations. It largely reflects
the hegemonic structure of the post-1945 world order and has not adjusted to the reality
of fundamental changes in the international system. The rise of new powers and the
mounting influence of non-state actors have provided opportunities to promote peace
and justice, but also posed new challenges that might endanger these values. Scholarly
and policy communities need to be informed of the challenges and opportunities for
sustainable peace and justice.
The IPG pursues its mandate by:
Engaging in research aimed at promoting peace and justice by addressing specific
national, regional and global challenges and sharing knowledge through books, articles,
reports, and other outlets;
Convening influential policymakers and scholars working on issues of peace and justice
to debate the merits of the frameworks through which peace and justice are promoted;
Hosting roundtable series to inform the policy and scholarly communities of emerging
challenges and solutions to peace and justice at national and regional levels;
Providing a dynamic Web presence as a resource for researchers and policy communities on the issues related to the future of peace and justice.
International Policy Group, October 2015
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Peace Betrayed: The ICC Politics of Victimhood and The Threat of Instability in Kenya

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Peace Betrayed:

The ICC Politics of Victimhood

he International Criminal Court (ICC) case is a danger to a

of a fraction of these victims and events. Its case only continues to

mission that will cover victims from 1991-2008. It should do this

Criminal Investigations Department

Commission of Inquiry on Post Election Violence

Convention for a Democratic South Africa

Civil Society Organisation

Department of Political Affairs

Electoral Commission of Kenya

Centre for Humanitarian Dialogue

International Criminal Court

Internally Displaced Persons

Independent Review Committee

Kenya African National Union

Kenya Human Rights Commission

Officer Commanding Police District

Orange Democratic Movement

Office of the President

Party of National Unity

Small Church Community Groups

United Nations Office in Nairobi

United States of America

7.0 A Final Solution for all Victims of Political Violence;

he International Criminal Court (ICC) has become inimical and

2.0 A Historical Perspective on Victimhood

2.1 1991-1993 and 1997-1998 Election Violence Victims

2.1.1 The Nature of the Violence and the Victims

Likoni-Kwale area, from August to November 1997. Precise figures are

anything, the passivity and apparent collusion of state agents convinced

in character, creating an escalating cycle of violence. There is a growing

hardly escalated into large-scale violence without the outside instigation

Table 1. 1991-1993 Violence Cycle Victims

Table 1.0 1991-1993 Violence Cycle Victims

Border Conflicts and

Narok Maai Ma- Between

Sources; Various Nation newspapers, M. S. Kimenyi, N. S. Ndungus Sporadic Ethnic

Table 2. 1997-1998 Election Violence Victims

Table 2.0 1997-1998 Violence Cycle Victims

Nakuru, Molo, 1996-1997

18,000 Farms Attacked

Sources; Various Nation Newspapers, M. S. Kimenyi, N. S. Ndungus Sporadic Ethnic

2.2.0 Responses to the 1992 & 1997 Election Violence Victims

Kenya 1992 (The Kiliku Committee)

The Parliamentary Select Committee to Investigate Ethnic Clashes in

4. Make recommendations that would help to avert such clashes in

officially recognize the role of KANU in inciting the main incidents of

2.2.5. The United Nations Development Program (UNDP)

Displaced Peoples Programme

Between 1993 and 1995, the United Nations Development Program

to belittle the incident, terming it, a hiccup in an overall positive

3.0.0 The 2007-2008 Elections

negotiations between the two antagonists Raila Odinga and Mwai

3.2.0 Table of 2008-200 Post-election Violence Victims

3000 1,000 Houses

Trans Nzoia: Trans

105 389 + 119

21,749 52,611 Houses Burnt, 58

66,000 1,564 Houses

Nakuru District 31/12/2007

South Rift and Kisii

Mumias, Busia, Ka-