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A Study on the Post Election Violence: Case Study Kenya an International Law
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A Study on the Post Election Violence: Case Study Kenya
An International Law Perspective

A STUDY ON THE POST ELECTION VIOLENCE: CASE STUDY KENYA

AN INTERNATIONAL LAW PERSPECTIVE

PATRICK MUTUA KIOKO

B. Philosophy (Urbanian University, Rome), MA in Rural Development


(UCD, Dublin-Ireland), MA in INGO (Webster University, The Netherlands)
and PHD (on-going) in Disaster Management and Sustainable Development at
Masinde Muliro University, Kenya

E-MAIL: pmkioko2002@yahoo.com

10th OCTOBER 2010

1
A Study on the Post Election Violence: Case Study Kenya
An International Law Perspective

Table of content

Item Page
Title page 1
Table of contents 2

Introduction 3
Abstract 3
Key words 3
Description of the research 4
Study hypothesis 5
Study questions 5
Structure of the study paper 5

Study Sections 6
Section1: Background Information 6
A brief Kenyan historical and political background 6
The violence background information 8

Section 2: The Mediation Process 9


Agreed Short term measures 10
Agreed long term measures 11

Section 3: The Kenyan Violence Versus International Law 11


Kenya domestic law cum binding international treaties 11
International Criminal Court 13
Genocide 14
Crimes against humanity 15
War crimes and crimes of aggression 17
Issues on impunity 18

Section 4: Conclusion 19

Bibliography 20

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A Study on the Post Election Violence: Case Study Kenya
An International Law Perspective

1.0 A Study on the Post Election Violence: Case Study Kenya

2.0 Introduction
2.1 Abstract

This paper examines the violence that broke out in Kenya after the 27 December 2007
presidential election whereby, upon the announcement of the re-election of President Mwai
Kibaki, it sparked contestation of the results, and an accusation of rigging by the opposition
Orange Democratic Movement (ODM) whose leader was Hon Raila Odinga. This led to political
crisis and eruption of violence in many parts of the country. The paper therefore, examined such
violence in relation to international law – whether the crimes committed violated any kind of
international law.

There were unprecedented levels of violence and destabilization in Kenya which led to
regional and international leaders to move quickly in attempts to negotiate for a resolution to the
crisis. Shortly after the violence came to a halt, there was a commission of inquiry formed (Waki
Commission) which was mandated to investigate on the circumstances that led to such outbreak
of war. For instance, reports from Waki Commission and UN Human Rights Team clearly show
that there were serious violations of international human rights, and crimes against humanity
were committed which constitute part of international law. There were some recommendations
made by the Waki Commission, and it was noted that the government of Kenya was slow in
implementing them. One of key suggestion made by the commission was for the Kenyan
government to establish an independent Special Tribunal made up of domestic and international
jurists to prosecute those responsible for the crimes committed in the event of the war, and this
took ages to happen and as well seemed to brew mixed interpretations, making it necessary for
the ICC to come into aid. It is anticipated that the manner in which the ICC will handle the
situation will have great influence in the way future crimes will be tried, thus ensuring that the
question of impunity does not overshadow accountability.

2.2 Key words

Post Election: Happenings that come after election event

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A Study on the Post Election Violence: Case Study Kenya
An International Law Perspective

Violence; It is unjust or unwarranted exertion of force or power, as against rights or laws (online

Dictionary)

Kenya: Also referred to as ‘republic of Kenya’ and is a country found in Eastern part of Africa.

Crimes against humanity: is one of the international crimes which entail acts committed as

part of a widespread or systematic attack directed against any civilian population, with
knowledge of the attack and the acts are listed in the Rome Statute of the ICC article 7.

Law: It is a device for conflict resolution. It is also defined as a set of rules and regulations

which aims to prevent conflict from emerging; to prevent conflict from escalating; and to
find solutions to conflict ( Krieken, P.V, 2010, p. 5).

2.3 Description of the Study:

Upon the announcement of the re-election of President Mwai Kibaki during the
presidential elections on 27 December 2007, there were unprecedented levels of violence and
destabilization in many parts of Kenya, which led to regional and international leaders to move
quickly in attempts to negotiate for a resolution to the crisis. This paper investigated on what led
to such violence and how the mediation process was undertaken. The paper also investigated
whether the crimes committed violated the international law.

The study specific objectives are as follows;

1. To provide Kenyan historical and political background


2. To examine the factors that led to the violence
3. To explore the violence mediation process
4. To examine the violence incidence vis-à-vis international law

This study investigated with the existing literature, and in relation to international law, the 27
December 2007 post election violence issue in Kenya. There were limited books about the issue
this being a recent event, but most information was gotten from the online news and reports. The
study being a qualitative research type paper, the main sources of the data and information used

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A Study on the Post Election Violence: Case Study Kenya
An International Law Perspective

were from secondary information - from existing written literature, books, internet and journal
articles.

2.4 Study Hypothesis:

The Kenyan post election violence after 27th December 2007 instigated by some political
leaders led to bloodshed, displacement of people, damage of property amongst others, and was a
crime against humanity according to international law.

2.5 Study Questions

1. Why did the violence happen?


2. How was the mediation process reached? Why did it involve Kofi Annan, the former UN
Secretary General?
3. What crimes were committed?
4. How is the International Criminal Court (ICC) involved in the Kenyan case? What part of
the international law led to such decision?

2.6 Structure of the Study Paper

The study paper examined the post election violence in Kenya in relation to international
law. The study is structured in such a way that it starts by providing introductions. The
introduction part is comprised of the study abstract which in a nutshell captures an overview of
main issues examined in the paper. It also contains a few key words which are repeatedly used
all along the study paper even though there are others not listed. The introduction part also
provides the description of the research, research question and the study hypothesis.

The study issues that follow are divided into four sections and section one explores
historical and political information of Kenya. It further provides the background information on
how the violence took place and then proceeds to provide the violence aftermath information.
Section two examines the mediation process and its outcome which is divided into short and long
term issues. Section three looks at the Kenyan post election violence vis-à-vis international law.
It examines Kenyan domestic law, other binding international treaties that Kenya is party to, and
then looks at crimes that ICC deals with in relation to Kenyan violence, and then attempts to

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A Study on the Post Election Violence: Case Study Kenya
An International Law Perspective

point what international crimes were committed in such scenario. In the same section, there is a
brief mention about the issue of impunity in relation to the post election violence. Section four is
the conclusion part which highlights some of the important points that have been gathered along
the study paper.

3.0 Study Sections

3.1 Section 1: Background Information

This section provides a brief Kenyan historical and political background and some
information in relation to the violence background.

3.1.1 A Brief Kenyan Historical and Political Background

Kenya’s’ historical and political background according to this paper can be subdivided into
three historical periods, namely;

1. 1963 – 1978: This is immediately after Kenya attained independence and it’s the era of
Jomo Kenyatta (the first president of Kenya).
2. 1978 – 2002: During President Moi Era as the President of Kenya.
3. 2002 – Present (2010): During the era of President Mwai Kibaki

The Kenyan Constitution provides for presidential election every five year term with
eligibility for reelection. Immediately after independence Kenya was a multiparty system but
between 1969 and 1992, KANU was the only political party allowed in Kenya which was due to
the changes brought about by then president, Jomo Kenyatta.1 During the early 1990s there was a
partial reemergence of democracy in Kenya and during the 1992 elections, multiparty was
allowed. Before the 1997 elections, the government reformed the electoral process again and
eliminated some of the most oppressive laws concerning public assembly and speech. 2
Immediately after the 1997 elections, among other things pressure mounted for a participatory

1
Ong’ayo, A. O., (2008). The Post-election violence in Kenya: An overview of the underlying factors. 2008-02-14,
issue 45 (http://www.nationsencyclopedia.com/World-Leaders-2003/Kenya-POLITICAL-
BACKGROUND.html#ixzz11NeeksAS
2
Eyes on Kenya. (http://eyesonkenya.org/blog/?p=27)

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A Study on the Post Election Violence: Case Study Kenya
An International Law Perspective

review of the 1963 Constitution, (with an aim to curtail the powers of the president) and
introduce a bill of rights.3

However, Kenya has been regarded as the Africa’s most stable nation and the post
election violence shocked observers in the world of international politics. 4 It can be argued that
the factors that led to the violence are deeply rooted in the country’s history and all had been
building over time following the end of colonial period. Kenya gained independence in 12th
December 1963 and the British were alert to prevent any Mau Mau movement of 1952 – 1960
that would affect the politics of the new independent state and cause further violence. The fact
that Jomo Kenyatta was elected prevented this from happening because he was the leader of the
same Mau Mau.

President Jomo Kenyatta was a Kikuyu and so Kikuyu being one of the political active
tribes in Kenya, were compensated in some way, they spread beyond their traditional home land,
took over land that they claimed was stolen from them by departing colonialist, and this was
indeed the start of ethnic hatred. It can be argued that Kenyan independence from Britain was
inherited by non-democratic institutions and cultures, which later fell into the hands of corrupted
politicians and governments.5 This saw the transfer of 1.6 million hectares of land to the ruling
elite and others, mainly Kikuyu.6 This was done by Kenyatta by allocating huge parcels of land
left by white settlers to himself and cronies, including large tracts in the present Rift Valley
province. Upon Kenyatta’s death in 1978, Daniel Arap Moi, a member of the Kalenjin tribe,
assumed power in 1978. He reigned Kenya for 24 years, where ‘he exploited the Kenyan
diversity and politicized ethnicity to levels where he could instigate clashes in districts and
provinces with mixed groups, a practice he perfected in the 90’s in order to discredit the onset of

3
ibid
4
Nmaju, M. C., (2009). Violence in Kenya: Any role for the ICC in the quest for accountability? African Journal of
legal studies, p. 78
5
Ong’ayo, A. O., (2008). The Post-election violence in Kenya: An overview of the underlying factors. 2008-02-14,
issue 45 (http://www.nationsencyclopedia.com/World-Leaders-2003/Kenya-POLITICAL-
BACKGROUND.html#ixzz11NeeksAS)
6
Eyes on Kenya. (http://eyesonkenya.org/blog/?p=27)

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A Study on the Post Election Violence: Case Study Kenya
An International Law Perspective

multiparty democracy in Kenya’. 7 The report continues to argue that, politically during his reign,
Moi motivated ethnic clashes that were used to disturb and displace populations and groups that
supported the opposition (mainly the Kikuyu in Rift Valley, Luo in the slums of Nairobi and
Mombasa). This scenario depicts a very sensitive subject that has always caused tensions and
ethnic divide in Kenya. The political class and elite have always capitalized on the acts of tribal
manipulation and this has polarized Kenya in a great way because of ethnic favoritism. 8 The
consequences of this have been most Kenyan citizen pitching their loyalties towards their tribes
rather than the country.9 It is no wonder given such scenario that the post election violence of
2007 in the protest of the alleged rigged elections soared into ethnic violence.

3.1.2 The Violence Background

The December 27th 2007 elections were for both parliamentary and presidential
positions. But the polls were a disorganized business for a number of reasons; firstly, there was
poor update of the voter’s registers and at times not updated at all, because some dead persons
were still on the register. Secondly, the rules governing the help which could be given to illiterate
voters was poorly enforced. And thirdly, foreign and national observers had difficulties in terms
of free access to the polling stations, and later to the ballots.10

The party election results overview were as follows: Raila Odinga's ODM, which won ninety-two
seats; Mwai Kibaki's PNU, which won thirty-four seats; Kalonzo Musyoka's splinter ODM-K,
which won sixteen seats; and Uhuru Kenyatta's Kanu, which won eleven seats.11

The margin between the opposition (ODM) party seats and the incumbent (PNU) party seats
made the presidential elections results suspicious. In addition to this, the immediate inauguration
of the incumbent as the winner sparked chaos, because the polls had predicted Orange

7
Ong’ayo, A. O., (2008). The Post-election violence in Kenya: An overview of the underlying factors. 2008-02-14,
issue 45 (http://www.nationsencyclopedia.com/World-Leaders-2003/Kenya-POLITICAL-
BACKGROUND.html#ixzz11NeeksAS)
8
Ibid
9
Nmaju, M. C., (2009). Violence in Kenya: Any role for the ICC in the quest for accountability? African Journal of
legal studies, p. 80
10 th
Prunier, G., (2008). Kenya: The Roots of Crisis. 7 January 2008
(http://www.opendemocracy.net/article/kenya_roots_of_crisis)
11
(ibid)

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A Study on the Post Election Violence: Case Study Kenya
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Democratic Movement (ODM), a party which was led by Raila Odinga and supported by three
largest tribes, that it would win the elections. 12

The bloody aftermath: The victory for former president Mwai Kibaki (PNU) in the Kenyan
presidential election was followed by inflammable and violent acts, because it was reported that
as soon as the electoral commission of Kenya (ECK) hastily proclaimed Kibaki as the winner,
both the Nairobi slums and the western province exploded. 13 The report continued to state that
the violence of the slum-dwellers reflected their social frustration, and that of the western part of
Kenya, characterized with arson-cum-machete attacks, stemmed from their hatred of the Kikuyu
"colonists", a situation which recalled (especially for the Luo tribe) the 1960s and 1970s
frustrations.

The following information and data depicts the aftermath of the Kenyan violence;

 More than 1,500 Kenyans were reported killed, 1,133casulties, over 350,000 internally
displaced persons, approximately 2, 000 refugees, destruction of 117, 216 private
property and 491 government owned property, around 42,000 houses and many
businesses were looted and destroyed, gang rapes, male/female genital mutilation and
destruction of the railway line.14
 Factories went idle, many roads were closed, and food and humanitarian crises became
visible. In Uganda, Rwanda and the eastern DR Congo, there was interruption of fuel
supplies coming from Mombasa port due to threatening transport. Even in Tanzania it
was beginning to feel the economic aftershocks of the disturbances. By a conservative
estimate, the Kenyan economy was losing $30 million a day.15

12
Gettleman, J., (2007). Disputed Vote Plunges Kenya into Bloodshed. December, 31 2007
(http://www.nytimes.com/2007/12/31/world/africa/31kenya.html)
13
Global voices, ‘Kenya Election Aftermath 2008’. (http://globalvoicesonline.org/specialcoverage/2008-special-
coverage/kenya-elections-aftermath-2008/)
14
Juliana, (2008). ‘Report on Post-Election Violence in Kenya’. Un Human rights team, March 20, 2008.
(http://blog.ushahidi.com/index.php/2008/03/20/report-on-post-election-violence-in-kenya-un-human-rights-
team/)
15
Prunier, G., (2008). Kenya: The Roots of Crisis. 7th January 2008
(http://www.opendemocracy.net/article/kenya_roots_of_crisis)

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A Study on the Post Election Violence: Case Study Kenya
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It was on 2nd January 2008, when President Kibaki announced that he was prepared to have a
dialogue with the concerned parties, which was a good start of the reconciliation process and to
end violence that was escalating all over the country. 16

3.2 Section 2: The Mediation Process

The speed in which the violence was spreading in most parts of Nairobi and western parts
of Kenya was alarming and begged for immediate attention. Domestic based mediation struggles
did not bear fruits, as witnessed on 3rd January 2008 when attorney-general Amos Wako
announced the creation of three committees designed to find a solution to the crisis (on peace and
reconciliation, on the media aspects of the situation and on legal affairs) which was received with
more anger and resistance. 17 This called for international community intervention.

As a result of other attempts at mediation (like regional arrangements/agencies – African


Union, for example) process not succeeding as anticipated18, in his capacity as President of the
African Union, President John Kufuor of Ghana mandated a Panel of Eminent African
Personalities, chaired by Mr. Kofi Annan, to intervene in the process of ending the violence.
Included in this panel were Ms Graca Machal and Former President Benjamin Mkapa. The Panel
which was comprised of the negotiation teams from the Government/Party of National Unity
(PNU) and the ODM, came together under the Kenya National Dialogue and Reconciliation
process.19 This panel came up with short term and long term issues that were meant to steer the
process. The Kenya National Dialogue and Reconciliation process came up with four key agenda
items in an effort to resolve the crisis, which included: (1) immediate action to stop violence and
restore fundamental rights and liberties; (2) immediate measures to address the humanitarian
crisis; (3) promote reconciliation, healing and restoration; and (4) how to overcome the current
political crisis, and long-term issues and solutions. 20

This is the summary of the mediation process outcomes;

16
Al Jazeera Agencies (2008). ‘Mob torches Kenyan Church’. 02 Jan 2008 03:33
(http://english.aljazeera.net/news/africa/2008/01/2008525132425962407.html)
17
Global voices, ‘Kenya Election Aftermath 2008’. (http://globalvoicesonline.org/specialcoverage/2008-special-
coverage/kenya-elections-aftermath-2008/)
18
This part embraces UN Charter Articles 33: peaceful ways of settling disputes
19
Centre for Humanitarian Dialogue 2010 (http://www.hdcentre.org/projects/kenya?overview)
20
(ibid)

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A Study on the Post Election Violence: Case Study Kenya
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Short- term measures: Included;

 Humanitarian response for displaced and homeless with the provision of the basic needs,
like food, water, clothes and the like, which was undertaken by the government and other
NGOs.
 Setting up the power sharing government with a creation of the Prime Minister position
which was agreed and implemented.
 Setting up of psycho-social programmes which included shelter, Education, health
services and protection and this was undertaken by NGOs like Red Cross, UNICEF and
setting up of settlement camps for internally displaced persons (IDPs). 21

Long-term measures: Included;

 Kenyan Constitutional review; which was undertaken and now Kenya has a new
constitution since its independence (1963) which was promulgated on 27 th August
2010.22
 Settlement of the IDPs: The progress so far, as the author writes this paper is that, a
large number of IDPs have been settled while others are still in the camps waiting for
settlement measures.23
 International Criminal Court to investigate the Kenya post election violence; the
investigation process by the ICC commenced in September 2010. This issue invokes
international law and is the area to be tackled in the section below.

3.3 Section 3: The Kenyan Violence Issue versus International Law

21
International Organization for Migration, ‘Internally Displaced Persons;
(http://nairobi.iom.int/forced_migration_IDPs.htm)
22
New Kenyan constitution ushered during Friday (27, Aug 2010).
(http://www.voanews.com/english/news/africa/east/New-Kenyan-Constitution-Ushered-in-During-Friday-
Ceremony-101580003.html)
23
International Organization for Migration, ‘Internally Displaced Persons;
(http://nairobi.iom.int/forced_migration_IDPs.htm)

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A Study on the Post Election Violence: Case Study Kenya
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Having explored the Kenyan violence scenario, this section analyses the situation in
accordance to international law and its applicability. The analysis is subdivided into Kenyan law
cum binding international treaties (like International Humanitarian law) and then ICC part.

3.3.1 Kenyan Domestic Constitution cum Binding International Treaties:

Kenya being a dualist state, its constitution is thus superior to international law within the
sovereign territory as stipulated in the Kenyan constitution article two (2). This article states that
the constitution is the supreme law of the land and any law that is inconsistent with this
Constitution is void to the extent of the inconsistency, and any act or omission in contravention
of this Constitution is invalid. 24 If a country like Kenya has to incorporate a treaty into its
domestic law, it therefore becomes enforceable in the country. 25 Domestic enforcement of
international obligations only occurs when parliament enacts a relevant statute and in such a
case, the Kenyan courts, as the enforcement organ of the state, would be bound by the treaty
obligation. The current practice in Kenya is that the office of the Attorney general checks all the
international treaties which have been ratified by Kenya prior their inclusion in by legislation. 26
This is to confirm whether the treaty is inconsistent with Kenyan constitution and if the treaty
conflicts the constitution, then Kenya would either make reservation to the treaty or amend the
domestic law to make it consistent with the constitution.
Kenya therefore, ratified and also included human rights and international humanitarian
law (IHL) treaties. It ratified the 1949 Geneva Conventions, on the 20 September 1966 and their
1977 additional Protocols on 23 February 1999. The Geneva Conventions Act, 1968 (Cap. 198)
incorporates into Kenyan law the criminalization and punishment of grave breaches especially on
serious violation of the principles of IHL which is core to the Geneva conventions. Since Kenya
has not yet incorporated the additional through the legislation, it therefore follows necessarily

24
The Proposed Kenyan Constitution (6th May 2010). Published by the Attorney-General in accordance with
section 34 of the Constitution of Kenya Review Act, 2008 (No. 9 of 2008). The same constitution was promulgated
on 27/8/2010as a landmark in Kenyan history since independence.
25
General comment on Kenya: ICRC (http://www.icrc.org/ihl-
nat.nsf/162d151af444ded44125673e00508141/94add0c0c00464254125678c00584f84!OpenDocument)
26
(ibid)

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A Study on the Post Election Violence: Case Study Kenya
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that the protocols cannot be internally enforced in Kenya. 27 In addition to this, the Republic of
Kenya ratified the Rome Statute on 15 March, 2005 becoming a State Party on 1 st June 2005.
According to the Rome Statute, the Court may exercise its jurisdiction in situations where the
alleged perpetrator is a national of a State Party or where the crime was committed in the
territory of a State Party.28 Issues dealt with include the violations of IHL, genocide and crimes
against humanity.29 The International Crimes Act, 2008 allows the Kenyan domestic courts to
take legal action for criminals for international crimes, and on the same wavelength, (because
Kenya is a party to the Rome statute), the ICC can have jurisdiction over such matters too.
Following the above information the Kenyan authorities discussed on the options to establish
a national court to prosecute these cases because, and in accordance with the Rome Statute, the
primary responsibility for investigating and prosecuting these crimes rests with Kenya. 30 It is
upon the failure of the Kenyan Parliament to reach an agreement to establish a specific judicial
mechanism to deal with the problem, when the Kenyan government committed itself to referring
the case to the ICC.31 There were serious violation of human rights issue, lots of killing and was
necessary for the ICC to investigate on the matter under article 4 of the Rome statute of the
ICC.32

3.3.2 International Criminal Court (ICC):


The crimes committed in Kenya in the event of post election violence could be prosecuted by
Kenya or alternatively by ICC, incase Kenya is unable or not willing to take the matter.
However, following the refusal for the Kenyan parliamentarians to set up their own special
tribunal to investigate on the organized violence, it prompted the ICC’s (under Prosecutor

27
(ibid)
28
ICC Weekly update (22 February 2010 # 22 (http://www.icc-cpi.int/NR/rdonlyres/273CB4EF-5359-49D8-8317-
CE79DA990C68/281567/Ed22_eng.pdf)
29
International Crimes Act (2008) <
http://www.kenyalaw.org/Downloads/Acts/The_International_Crimes_Act_2008.pdf>
30
The Rome Statute of the ICC, Article 14 (referral of a situation by a state party)
31
ICC prosecutor receives materials on post-election violence in Kenya (July 2007) < http://www.icc-
cpi.int/menus/icc/press%20and%20media/press%20releases/press%20releases%20%282009%29/pr438>
32
The Rome statute of the International Criminal Court, Article 4 (legal status and powers of ICC)

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An International Law Perspective

Moreno Ocampo) to pick up the investigation from The Hague.33 Moreno Ocambo, the ICC
Prosecutor, submitted a request to the Pre-Trial Chamber for permission to investigate the
bloodshed and ethnic tensions that rocked Kenya and the ICC ruling gave him the green light to
continue his investigations, and this signified that Ocampo had substantial evidence to bring
charges against Kenyan politicians. 34

The question remains whether the crimes committed in Kenya reflect international crimes and do
meet the ICC court’s threshold in substance and gravity as stipulated in the Rome statute of the
ICC article 53 on the initiation of an investigation. It was reported that more than 1,500 Kenyans
were reported killed, 1,133casulties, over 350,000 internally displaced persons, approximately 2,
000 refugees, destruction of 117, 216 private property and 491 government owned property,
around 42,000 houses and many businesses were looted and destroyed, gang rapes, male/female
genital mutilation and destruction of the railway line. 35 This depicts that there were serious
crimes committed in Kenya especially violation of human rights according to IHL article 2 and 7
of the UDHR.36 It is worth noting that under the international law, states have the primary
responsibility for protecting the rights of all individuals within their territory, and according to
the Office of High Commission for Human Rights (OHCHR) report, it indicated that in most
districts, the police were not able to maintain and enforce law and order. Most of the victims and
witnesses who were interviewed reported that, most times the police were often present, but were
passive during the attacks.37 From such reports, one would question whether such crimes are of
serious concern to the international community, and as categorized in the ICC constitution article
5 – that ICC jurisdiction is limited to genocide, crimes against humanity, war crimes and crimes

33
Scott Baldauf (31, March, 2010): the Christian Science Monitor. <
http://www.csmonitor.com/World/Africa/2010/0331/ICC-to-investigate-Kenya-election-violence.-Will-leaders-
cooperate>
34
The Rome Statute of the ICC, Article 53 (initiation of an investigation)
35
Juliana, (2008). ‘Report on Post-Election Violence in Kenya’. Un Human rights team, March 20, 2008.
(http://blog.ushahidi.com/index.php/2008/03/20/report-on-post-election-violence-in-kenya-un-human-rights-
team/)
36
The Universal Declaration of Human Rights (articles 2 &7)
37
Juliana, (2008). ‘Report on Post-Election Violence in Kenya’. Un Human rights team, March 20, 2008.
(http://blog.ushahidi.com/index.php/2008/03/20/report-on-post-election-violence-in-kenya-un-human-rights-
team/)

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A Study on the Post Election Violence: Case Study Kenya
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of aggression.38 The examination of each crime under ICC mandate is undertaken below vis-à-
vis Kenyan scenario.

Genocide: Article 6 of the Rome Statute of the ICC defines genocide as any of the
following acts committed with intent to destroy, in whole or in part, a national, ethical, racial or
religious group as such; killing members of the group; causing serious bodily or mental harm to
members of the group, deliberate infliction, imposing measures intended to prevent births within
a group and forcibly transferring children of the group to another group.39 The violence in Kenya
was brutal but its gravity to constitute genocide is another question all together. Kikuyu people
resided in areas dominated by other tribes like kalenjins and so it could be argued that such
violence was an opportunity to repossess their ancestral land that was occupied by British and
inherited by kikuyu upon the British departure in 1964.40 The United Nations Special Advisor on
the Prevention of Genocide was quick to claim genocide, and wanted the application of the
responsibility to protect (R2P) tool. 41 However, the UN intention was to prevent an outbreak of
genocide. According to the definition, there is little evidence to make us classify this violence as
genocide, because the intention to destroy either partially or totally a certain group was not there,
but the violence targeted the members of an opposing ethnic group.

Crimes Against Humanity: This is the other category of international crime which is
possible to have been committed during the Kenyan post election violence. Crimes against
humanity entails acts committed as part of a widespread or systematic attack directed against any
civilian population, with knowledge of the attack, listed as follows; murder, extermination,
enslavement, deportation or forcible transfer of population, imprisonment or other severe
deprivation of physical liberty in violation of fundamental rules of international law, torture, rape
(and other forms of sexual violence of comparable gravity), persecution against any identifiable

38
The Rome statute of the International Criminal Court, Article 5
39
The Rome statute of the International Criminal Court, Article 6
40 th
Prunier, G., (2008). Kenya: The Roots of Crisis. 7 January 2008
(http://www.opendemocracy.net/article/kenya_roots_of_crisis)
41
UN news service (28, January 2008) – this was a call to use R2P:
(http://www.responsibilitytoprotect.org/index.php/component/content/article/1478)

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A Study on the Post Election Violence: Case Study Kenya
An International Law Perspective

group, enforced disappearance of persons, the crimes of apartheid, other inhumane acts of similar
character intentionally causing great suffering. 42 Some of the acts mentioned in the definition
resemble violation of human basic rights, which in essence were violated during the post election
violence. The element of ‘widespread or systematic attack’ according the author was evident in
the Kenyan post election violence. The Waki Commission report noted that the crimes were
spontaneous at first, but eventually became organized and pointed out that politicians and local
business men participated in the organization of some of the attacks. 43 To this effect, on 31
March 2010, Pre-Trial Chamber II of the International Criminal Court (ICC), by majority
decision agreed that the Office of the Prosecutor (OTP) may commence an investigation proprio
motu for crimes against humanity allegedly committed in the Republic of Kenya in relation to
the post-election violence of 2007 – 2008 (the Decision, which can be accessed at
http://www.icc-cpi.int/iccdocs/doc/doc854562.pdf).44 The report continues to mention that such
a move had great political and legal implications, as it represented the ICC’s first major ruling
and a sign of its understanding of the legal elements of crimes against humanity as stipulated in
Article 7 of the ICC Statute.

From the information gathered by UN Human Rights Team, Waki Commission report, news
reporters, and in accordance to the acts mentioned in the definition of the Rome Statute of the
ICC article 7, it can be deduced that, the crime against humanity were committed during the post
election violence in Kenya 2008. The Kenyan incident is said to have met the gravity or
threshold to be undertaken by OTP according to the report from ICC prosecutor.45 As the author
was writing this paper, through a letter signed by Kenyan Minister for Foreign Affairs, Kenya
had allowed the International Criminal Court to open an office in the country, and had granted

42
The Rome statute of the International Criminal Court, Article 7

43
A Tribunal for Kenya: The Waki Commission Report by Binoy Kampmark. Binoy Kampmark was a
Commonwealth Scholar at Selwyn College, Cambridge and lecturer in history at the University of Queensland.
17.10.2008. See (http://www.factsandarts.com/articles/a-tribunal-for-kenya-the-waki-commission-report/)

44 Bernhard Kuschnik, (April 12, 2010): ICC Pre-Trial Chamber II authorizes an investigation into the situation in

Kenya (http://www.americanstudents.us/2010/04/12/icc-pre-trial-ii-authorizes-an-investigation-into-the-
situation-in-kenya/)
45
Investigations being undertaken by the ICC as of now (http://www.icc-
cpi.int/Menus/ICC/Structure+of+the+Court/Office+of+the+Prosecutor/Investigations/)

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A Study on the Post Election Violence: Case Study Kenya
An International Law Perspective

the ICC immunity from legal challenges, tax exemptions and other privileges. 46 The
investigation by ICC about the violence commenced in September 2010, and from the ICC
Media Liaison Officer in the Prosecutor’s office Kenya (Ms Nicola Fletcher), it was reported that
the government of Kenya had committed to cooperating with The Hague and so far Kenya had
no power to block the probe.47 This is quite in order and in accordance with the ICC constitution
article 42, paragraphs 1, 2, 3 and 5.48

It is now the need for judicial accountability to clarify the crimes before the court on the
basis of evidence. According to the author (and commonly held view by most Kenyans), two (2)
issues which would be challenging could emerge, namely, accountability or impunity, and this
would come as a result of the decisions and actions of the Kenyan government and that of ICC
Prosecutor’s office. However, the Kenyan government has pledged to cooperate with the court. It
can be argued that, if then accountability will fail to happen due to Kenya’s lack of willingness to
prosecute the persons responsible of the crime, then the ICC prosecution may be a test of its
complimentarity. 49 On the other hand, the failure for Kenya to prosecute the crimes could imply
impunity, and the price of impunity would mean recurrence of violence after another election. So
the country should avoid initiating impartial prosecution for the perpetrators of the crimes and
should observe the international law, for example, as stipulated in the ICC constitution articles
25 and 33 – on the basis of individual criminal responsibility (art. 25) and superior orders and
prescription of the law (one is responsible of a crime even if he/she is acting on superior
orders).50

46
‘Kenya-allows-International-Criminal-Court-to-open-office’: Tom Maliti, Associated Press, Published, Sept. 3,
2010 (http://www.deseretnews.com/article/700062537/Kenya-allows-International-Criminal-Court-to-open-
office.html)

47
‘ICC: Kenya date with justice still on’, Oliver Mathenge, Nation Kenya, September
21 2010 (http://www.nation.co.ke/News/politics/%20Kenya%20date%20with%20justice%20still%20on,%20says%
20ICC/-/1064/1015256/-/g42kip/-/index.htmlens)

48
The Rome Statute of the ICC, article 42 (elaborates about the office of the prosecutor)
49
The Rome Statute of the ICC, article 1 (elaborates about the ICC as playing a complimentary role of the national
criminal jurisdiction)
50
The Rome Statute of the ICC, articles 25 & 33 (emphasizing on the individual responsibility on the crimes
committed)

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A Study on the Post Election Violence: Case Study Kenya
An International Law Perspective

War Crimes and Crimes of Aggression: According to the definition of war crimes as noted
in Rome Statute of the ICC article 8 51 , the violence committed during Kenyan post election
violence did not reach that magnitude, for example the use of biological weapons. Likewise, with
the Crimes of aggression, a reference has been made to crimes of aggression, but was agreed that
this would be dealt with at later stages and it is not in the list of the crimes the ICC is competent
to deal with at present.52 However at the review conference (Kampala, June 2010) some progress
was made and an agreement was reached in defining the crime of aggression. 53 This will enter
into force once a provision is adopted (after being ratified by 30 states as from 2017) in
accordance with articles 121 and 123 of the Rome Statute of the ICC.54

Issue on impunity: The government has been too slow to prosecute the architects of the post
election violence and also has been delaying to implement Waki Commission
recommendations. 55 As noted earlier, one of the recommendations in the Waki Commission
report was for Kenyan government to establish independent Special Tribunal which instead, the
parliament voted against in February 2009. 56 At last Kenya decided to reform domestic courts so
as to ensure prosecutions for the crimes amid the establishment a Truth and Reconciliation
Commission (TJRC), which would reform the judiciary to better handle subsequent
prosecutions.57

51
The Rome statute of the International Criminal Court, Article 8 (war crimes)
52
Krieken, P. V., (2010, p.111). Webster International Law handbook, fall 1. Rolling Foundation, the Netherlands.
53
Delivering on the promise of a fair, effective and independent Court: ‘The Crime of Aggression’
(http://www.iccnow.org/?mod=aggression)
54
The Rome statute of the International Criminal Court, Articles 121 and 123 (Amendments and Review of the
statute respectively)

55
The Waki report Waki report breaks new ground, but will it be implemented? By DONALD KIPKORIR
Posted Friday, October 17 2008 at 17:15 (http://www.nation.co.ke/oped/Opinion/-/440808/481268/-/3mepxg/-
/index.html) . The report did not reveal the names of the suspected persons, but a sealed envelope was handed to
Kofi Annan, who in turn handed it to the ICC Prosecutor Moreno Ocampo on July 9, 2009.

56
Kenya MPs vote against local tribunal; By ANTHONY KARIUKI, Thursday, February 12 2009
(http://www.nation.co.ke/News/-/1056/529618/-/u1yqau/-/index.html)

57
KENYA’S MPs APPROVE TRUTH & RECONCILIATION COMMISSION: Connect Africa, October 25, 2008
(http://connectafrica.wordpress.com/2008/10/25/kenyas-mps-approve-truth-reconciliation-commission/)

18
A Study on the Post Election Violence: Case Study Kenya
An International Law Perspective

According to the report from the UN Human Rights team, impunity is deeply entrenched
in Kenya and is not cramped to the police alone. The report expressed a concern that, the failure
to act on the findings and recommendations of various state-commissioned inquiries and studies,
will result to citizens distancing themselves from the state institutions. Most of those interviewed
expressed a concern about perpetrators (including planners and organizers) of past violence and
human rights violations, that they should be prosecuted and failure to prosecute them would be
an indication of total impunity, which is a major contributing factor to the violence. 58

3.4 Section 4: Conclusion

To drive the point home, the core business of international criminal court is to take legal
measures for perpetrators of crimes that threaten peace and security, which has always been the
main gist of the international community. Nevertheless, as the study hypothesis states, ‘‘the
Kenyan post election violence after 27th December 2007 instigated by some political leaders led
to bloodshed, displacement of people, damage of property amongst others, and was a crime
against humanity according to international law″, this paper highlights important issues as
follows:

 It has been noted that during the Kenyan post election violence more than 1,500 Kenyans
were reported killed, 1,133casulties, over 350,000 internally displaced persons,
approximately 2, 000 refugees, destruction of 117, 216 private property and 491
government owned property, around 42,000 houses and many businesses were looted and
destroyed, gang rapes, male/female genital mutilation and destruction of the railway line.
The violence in Kenya was brutal to the extent that, it violated human rights. More so, the
crimes were spontaneous at first, but eventually became more organized and politicians
and rich local business men participated in the organization and planning of some of the
attacks.
 The above trend conforms with the hypothesis that ‘‘the Kenyan post election violence
after 27th December 2007 instigated by some political leaders led to bloodshed,
58
Juliana, (2008). ‘Report on Post-Election Violence in Kenya’. Un Human rights team, March 20, 2008.
(http://blog.ushahidi.com/index.php/2008/03/20/report-on-post-election-violence-in-kenya-un-human-rights-
team/)

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A Study on the Post Election Violence: Case Study Kenya
An International Law Perspective

displacement of people, damage of property amongst others, and was a crime against
humanity according to international law″. Also the above trends to a great extend
matches with the definition of the crimes against humanity as stipulated in the Rome
Statute of the ICC article 7.
 The crimes committed in Kenya in the event of post election violence can be prosecuted
by Kenya or alternatively by ICC, incase Kenya is unable or not willing to take the
matter. The Kenyan government agreed to cooperate with the ICC in undertaking the
prosecution process for the architects of the crimes in accordance to international law and
the investigations by ICC have already started.
 It is anticipated that the prosecution of the perpetrators of the crimes will yield
accountability before the court on the basis of evidence collected so as to challenge the
issue of impunity, and in compliance with the international law prescriptions.

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20
A Study on the Post Election Violence: Case Study Kenya
An International Law Perspective

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A Study on the Post Election Violence: Case Study Kenya
An International Law Perspective

The Universal Declaration of Human Rights

United Nations Charter

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(http://www.responsibilitytoprotect.org/index.php/component/content/article/1478)

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