Kenya is facing a legacy of human rights violations perpetrated in the aftermath of the 2007 elections. ICTJ has worked there since 2008 on criminal prosecutions, institutional reform, truth-seeking, and reparations.

Nakuru: residents pack all the possessions they can, gather at a church seeking safety & transport out of town. (Daniel McCabe)

Background: A History of Unresolved Violence

Kenya’s December 2007 presidential and parliamentary elections were followed by a period of intense violence and political unrest. Allegations of electoral manipulation intersected with ethnic tension, boiling over into fighting, riots, acts of rape and assault, and bloodshed. The postelection violence resulted in an estimated 1,100 deaths and widespread destruction and displacement.

In January 2008, the two main political parties—incumbent President Mwai Kibaki’s Party of National Unity and Raila Odinga’s Orange Democratic Movement (ODM)—agreed to negotiate. They established an uneasy peace and called for the creation of a Commission of Inquiry on Post-election Violence (CIPEV, or Waki Commission) and an Independent Review of the Elections Commission (IREC) to investigate the crisis.

The Waki Commission and IREC completed their work in September and October 2008. Their recommendations included:

  • Creation of a special tribunal to prosecute perpetrators of post-election violence
  • A constitutional review
  • Establishing a Truth, Justice and Reconciliation Commission (TJRC) to investigate past violations
  • Major police force reform and the merging of Kenya's two police forces—the Administration Police and the Kenya Police Service

The implementation of these recommendations has begun. A new constitution was adopted in August 2010, and some reforms were instituted, most notably in the judiciary.

But the pace of reforms has been slow. The proposed Special Tribunal was never created—the bill defeated in Parliament in February 2009.

In response, in March 2010, the International Criminal Court (ICC) announced an investigation into Kenya’s postelection violence. On March 8, 2011, the ICC issued summons for six people—Mohammed Hussein Ali, Uhuru Kenyatta, Henry Kosgey, Francis Muthaura, William Ruto, and Joshua Sang—for crimes against humanity. The cases against four suspects were confirmed in January 2012, but one case has since been withdrawn and three cases remain active. Two of the three remaining suspects, Kenyatta and Ruto, contested the March 2013 Presidential elections and succeeded in getting elected to the two highest offices in Kenya. Kenyatta becomes the second sitting head of state, after Sudan’s Omar al Bashir, to face indictment by the ICC.

ICTJ's Role:

  • Prosecutions: ICTJ has continuously urged Kenyan authorities to establish a credible, transparent, and accountable domestic prosecution mechanism. It supports the proposal to create a credible International Crimes Division and is providing assistance to develop the idea.

  • Institutional reform: ICTJ provided, with others, elements of technical assistance and observation in the vetting of the judiciary. It supports local organizations' advocacy efforts on judicial and police reform. We provide technical assistances to both relevant institutions and civil society organizations to enhance capacity and the delivery of credible reform. We develop briefing papers for key government departments, civil society, and others with an interest in judicial and security sector reform.

  • Truth-seeking: ICTJ helped Kenyans successfully lobby for amendments to the amnesty provisions in the bill establishing the TJRC. We took a lead role in successfully pressuring the TJRC’s Chairman, Ambassador Bethuel Kiplagat, to resign after serious allegations were made of his past involvement in human rights violations, and when he stepped down, albeit temporarily, we offered technical support to the commission. However, the TJRC has failed to finish its work and issue a report within the statutory time limit. With several extensions, its report is scheduled for release in May 2013. We support truth seeking from below by building the capacity of local organizations to undertake documentation of human rights violations.

  • Reparations: ICTJ comprehensively studied the reparative needs of victims of human rights violations from the 1950s to 2008. For the first time, victims voiced their opinions on the direction of Kenya’s unfolding transitional justice process. An ICTJ report, titled “To Live as Other Kenyans Do: A Study of the Reparative Demands of Kenyan Victims of Human Rights Violations,” was published in July 2011. It has been influential in informing Kenyan civil society efforts to draft a reparations framework and a draft reparations policy to be used as a tool for advocacy with the TJRC and the Kenyan government.