Political violence in Kenya

A study of causes, responses, and a framework for discussing preventive action

Thomas Obel Hansen

ISS Paper 205, November 2009

Introduction

This paper focuses on political violence in Kenya. The rationale
of the paper is to understand how such violence can best be
prevented. To do this, we must first understand the history of
political violence in Kenya and what factors in society contribute to
a tendency of utilising violence as a means of obtaining political
influence.

The present study is informed by a number of interviews with
representatives of Kenyan civil society organisations which are
involved in human security.1 Moreover, it relies on an appraisal of
studies and reports available on political violence in Kenya. In its
discussions, the paper draws on transitional justice discourses.

The paper is structured as follows: Firstly, a definition of
political violence is provided for. Secondly, the paper analyses how
political violence has historically played out in Kenya. Thirdly, the
paper identifies a variety of causes of political violence in Kenya.
Fourthly, the paper turns to an appraisal of which responses can be
deployed to prevent the recurrence (or persistence) of political
violence. It does so by discussing initiatives that have already been
implemented or which may be due to implementation. The paper thus
presents an account of political violence in Kenya and the responses
undertaken, while at the same time engaging more theoretically with
the question of how to prevent political violence.

Conceptualising Political Violence

Political violence is a so-called ‘essentially contested
concept’, and the premise that a universal understanding ought

to be utilised is not endorsed by all.2 This section attempts to clarify how the notion can be utilised to the Kenyan context.

Where all forms of violence are said to relate to power, political
violence has been defined as ‘the commission of violent acts
motivated by a desire, conscious or unconscious, to obtain or
maintain political power’.3 It is therefore the pursuit
of political objectives (and not the end result of gaining or not
gaining political power) that is at the core of the notion.4 Defining
political violence is typically contingent on a typology that
separates the politically motivated from economically and socially
motivated forms of violence. In this sense, political violence takes
place in the collective sphere where acts of violence are typically
committed by a multitude of individuals from one group against
individuals from another group, primarily because the targeted
individual happens to belong to this group. Political violence
typically takes the form of murder, assaults, sexual abuse such as
rape, forced pregnancy or sterilisation. Economic violence, on the
other hand, is characterised by an individual (or a multitude of
individuals) illegally pursuing financial enrichment by means of
violence (or threats of violence), and typically manifests as street
crimes such as robbery, drug related crimes or kidnapping. Social
violence is said to pursue the empowerment of one individual over
another, for example through domestic violence.5

Many observers, however, recognise that political violence should
not analytically be disintegrated from economic and social violence
because all forms of violence interrelate.6 In Kenya, many of those
consulted by the author understood political violence as violence
that takes place in relation to ‘political competition’,
but as a notion with strong economic and social underpinnings that
may be the determinant for the prevalence of political violence.

It is worth keeping in mind that the term political violence is
used for a broad variety of situations, ranging from terrorist
attacks, armed revolution, violent demonstrations or attacks by
citizens aimed at less than the overthrow of their government to
humanitarian intervention and intra-state wars.7 Political violence,
therefore, is not confined to non-state actors’ use of violent
means to further a political agenda but can also relate to the
state’s exercise of force, both against its own citizens and
against other states and their citizens. It is important to keep in
mind that mass-scale violence is sometimes portrayed as essentially
apolitical while in reality being predominantly political. For
example, some observers have characterised the Rwandan Genocide as a
‘crime of hate’, implying that it was brought about by
irrational ethnic hatred,8 when in fact the Genocide served (or was
thought to serve) primarily a political agenda.9 At the same time the
Rwandan Genocide highlights how the incentive to carry out violence
that is essentially political can be enhanced by ambitions to settle
private scores or obtain material benefit, thereby exemplifying the
difficulties in operating with a clear distinction between political,
economic and social violence.10

The understanding that political violence relates to acts of
violence that are carried out primarily as a means of achieving
political influence or power and usually entails a ‘group-component’
is foundational for the present paper. It is, however, also accepted
that political violence is a relative concept that depends on the
context to which it is applied.

Political Violence in Kenya: A Brief Outline

Political violence has played out in different manners throughout
Kenya’s history. When in 1888 the British East Africa Company
(BEAC) obtained concessionary rights to the Kenyan coast from the
Sultan of Zanzibar, Waiyaki Wa Henya, a Kikuyu chief was abducted and
killed by the British after having burned down the fort of a BEAC
official. Likewise, Kenyans’ opposition to the building of the
Uganda Railway, prompted the British to use violent means such as
assassinations.

As a reaction to settlers’ dominance over economic resources
and political exclusion, in 1921, Kenya’s first African
political protest movement, the Young Kikuyu Association (later the
Kenya African Union) was born. Both the colonialists and indigenous
Kenyans used violence in their pursuit of political objectives, most
clearly evident from the 1952-1960 Mau Mau rebellion and its
repression.11 As many of the Kenyans consulted by the author pointed
out, it is important to keep in mind that British colonialism in
Kenya was founded upon a strategy where effective rule of the colony
relied on building alliances with certain ethnic groups and
escalating tensions between these and other ethnic groups. Therefore,
besides its immediate connection with political violence, colonialism
through ‘divide and rule’ policies has brought about or
escalated inter-community conflict, the effects of which may still
have importance for the prevalence of political violence. Likewise,
the construction of a colonial state is said to have sustained
effects on inequality, land ownership, and regional differences. As
discussed later on, these factors are relevant to take into account
when examining political violence in present day Kenya.12

Also after the coming of independence in 1963, Kenya’s
political history was marked by violent uprising and repression.
Following the Kenya African National Union (KANU) victory in the 1963
elections, Kenya became a de facto one-party state, with its
leader and President of Kenya, Jomo Kenyatta, for example banning
attempts of creating an opposition party associated with the Luo
ethnic group. For some, this lead to the perception that Kenyatta, an
ethnic Kikuyu himself, was promoting Kikuyu interests over national
interests.13

According to many observers, when Daniel Moi took office in 1978
following the death of Kenyatta, he pursued policies that benefitted
(parts of) his own ethnic group, the Kalenjin, while excluding
individuals from other ethnic groups from gaining public office or
access to state resources. To facilitate this, repression of the
political opposition was common practice. Repression included
excessive use of force, torture, indefinite detention, and other
measures. 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 forcefully. Only after intense donor-pressure did Moi allow
multi-party elections to be held in 1992.14 The election campaign,
the election itself and its immediate aftermath were characterised by
threats, harassments and the occurrence of violent clashes between
supporters for different parties, claiming the lives of around 1,500
Kenyans and displacing more than 300 000.15 Where Moi had warned that
the return to multi-party politics would result in tribal clashes,
some observers note that ‘far from being the spontaneous result
of a return to political pluralism, there is clear evidence that the
government was involved in provoking this ethnic violence for
political purposes and has taken no adequate steps to prevent it from
spiralling out of control’.16 Moi maintained power with the
1992 elections, and despite increased openness in the political
system, commentators note that the Moi regime continued to repress
the political opposition.17

Like the 1992 elections, the 1997 elections were associated with
violence. Six months prior to the elections, KANU party activists
allegedly backed armed gangs who attacked ‘non-native ethnic
groups’ in the Coast Province, causing the death of more than
100 and leading to the displacement of more than 100 000.18 Also
after the elections, politically motivated violence between ethnic
groups took place. According to Amnesty International, more than 120
Kenyans lost their lives in the Rift Valley when KANU supporters
clashed with armed youths belonging to the Kikuyu ethnic group.19
Amnesty International notes how political violence predominantly
occurred in those areas where the Kikuyu-dominated opposition party,
the Democratic Party, had won over the Kalenjin-dominated KANU.20
Human rights organisations indicate that the violence in the Rift
Valley, like the pre-election violence in the Coast Province, was
endorsed and supported by political leaders, and responses from
security forces to halter the violence were non-existent or too
reluctant or delayed to have any meaningful effect.21 In 2002, after
Moi had held two terms and therefore was not allowed to run for
president again, Uhuru Kenyatta (Jomo Kenyatta’s son) was
appointed as KANU’s candidate. Dissatisfied with Moi’s
choice, a number of KANU members formed a faction, the Rainbow
Coalition with Raila Odinga as its leader, which later formed a
coalition with the Liberal Democratic Party (LDP). The 13-party
coalition, the National Alliance Party of Kenya, joined fronts with
the LDP under the name of the National Rainbow Coalition (NARC),
headed by Mwai Kibaki as its presidential candidate and with Raila
Odinga as its prime minister candidate. Although the election
campaign (and its aftermath) was characterised by a significant
decrease in political violence compared to its two predecessors,
political rallies did on some occasions lead to violence.22

As the Guardian’s Madeleine Bunting notes, observers of the
violence following the 2007 elections have often referred to the
violence as in contrast to an otherwise politically stable and
peaceful country. It is, however, worth keeping in mind that most
significant political activities and changes in leadership throughout
Kenya’s history as an independent state have been followed, and
to some extent formed, by violence, usually framed along ethnic
lines.23

Yet, the most recent post-election violence, because of its
relationship to the contested election results and because of its
speed and scale, seemingly came as a surprise and shock for many
Kenyans and the outside world. The violence had erupted even before
Kibaki was declared winner of the elections, but increased in scale
after the announcement.24 Estimates of casualties vary, but most
observers cite the Waki Report’s number of 1,133.25 Moreover,
around half a million Kenyans were forced into exile by the
violence,26 of which a significant number remains in internal
displacement camps.27

It was in the Rift Valley – in particular around Eldoret –
that violence first erupted, seemingly taking the form of
ethnic-based clashes between Odinga’s supporters, especially
from the Kalenjin ethnic group, and supporters of Kibaki, mostly from
the Kikuyu ethnic group. According to some observers, certain local
politicians incited the violence.28 Its carrying out was often brutal
and simply directed against individuals according to their ethnic
affiliation.29 Partly in response to the violence in and around
Eldoret, Kikuyus formed so-called ‘self-defence forces’.
These militias along with a criminal organisation formed in the
1980s, the Mungiki, carried out organised and large-scale violence in
other parts of the country, including Naivasha, Nakuru, and Nairobi
slums.30 The violence was in most cases followed by looting and
sometimes perpetrators were supposedly rewarded with money for taking
part in the violence.31 The level of the state agencies’
responsibility for the occurrence of the election violence remains a
disputed subject. The Waki Report notes that whereas the police in
some areas of the country remained passive, either because they were
unable or unwilling to stop the violence, in other areas, police
shootings seemingly resulted in many of the casualties.32 In some
cases, such as in the slums of Kisumu, Human Rights Watch interviews
with police officers suggest that an unofficial ‘shoot-to-kill’
policy was applied, apparently resulting in unarmed civilians being
shot dead if assumed to be rioters.33

Political violence in Kenya, although often at its extremes during
election periods, also exists as an ‘everyday phenomenon’.
Assassinations of political leaders, prominent businessmen, civil
society leaders, and other figures that possess significant influence
on the allocation of resources or political developments in the
country are far from exceptional. In early May 2009, Kenya’s
Daily Nation reported how assassins with political motives had killed
26 high-profile Kenyans over the course of only two months.34 Most of
those Kenyans consulted by the author view such form of political
violence as related to the violence surrounding election processes
because it is many of the same factors that allow for their
occurrence.

Whether violent crimes committed by criminal groups, such as the
Mungiki sect, should be categorised as organised economical or
political when they do not occur in connection with election
processes depend on the perspective taken. When the Mungiki sect was
established in the 1980s, it had religious undertones and pursued a
political agenda of ‘defending the culture and traditions of
the Kikuyu tribe’.35 At that point, the sect is said to have
aimed at protecting Kikuyu interests in the context of then president
Moi’s affiliation with the Kalenjin ethnic group. The Mungiki
sect continues to be associated with the Kikuyu ethnic group.
However, the agenda of the sect and its reasons for utilising
violence are now primarily economical. The Mungiki applies
‘mafia-like’ methods to control the Kenyan public
transport sector and bribes local business owners.36

Yet, Mungiki’s actions remain associated with Kenyan
politics in several ways. Firstly, Mungiki criminal activities
associate with politics not only in the sense that violence is often
directed towards ‘political opponents’ of the sect,37 but
also in the sense that both local vigilante groups and state security
agencies have engaged in a low-scale armed struggle with the sect,
leading to accusations of government-ordered extra-judicial
killings.38 Secondly, it was common perception among those Kenyans
consulted by the author that Mungiki continues to enjoy (moral and
financial) support from a number of parliamentarians. Thirdly –
and closely related to the above – according to observers of
political violence in Kenya, intimidation and violence by the Mungiki
sect and a number of other violent gangs have been employed as
political tools, both during election campaigns and beyond.39 Perhaps
ironically, as one scholar observes, it may well be that ‘the
informal repression or quasi-legitimisation of sectarian violence for
political ends by the state, has transformed a “moral ethnic”
movement into a “political tribal” one’.40 Finally,
the Mungiki sect exercises control as a ‘state within the
state’ in certain parts of Kenya and uses violence to maintain
such control.41

In many ways, violent crime employed by the Mungiki sect thus
identifies as political. While violent crimes employed by organised
gangs such as the Mungiki sect and vigilante group retaliation
receive intensive cover in Kenyan newspapers,42 to the extent that
violence committed by such groups does not relate directly to the
election process, systematic documentation of its scope and nature
remains sparse.

As should be clear from the above, both ‘ethnic violence’
and organised economic crime can be intimately associated with
political violence. Political violence that unfolds along ethnic
lines can serve as a ‘tool in the toolbox’ for political
leaders who want to achieve influence.43 Like other instances of mass
violence in the region, ethnic violence in Kenya connects to
political manipulation of identity. Likewise, organised economic
crime is closely associated with political violence, in particular
because agents of political violence are often involved in economic
crime.

In order to establish a framework for understanding how political
violence in Kenya may be countered it is useful first to dwell by the
causes of political violence. The following section aims at
identifying a variety of underlying factors that may be determinant
for a political culture that, at times, sanctions the use of violence
to reach political objectives.

Political Violence in Kenya: Identifying the Causes

Identifying causes of political violence is a problematic task.
Firstly, any attempt to ‘explain’ a phenomenon such as
political violence can be subjected to the objection that attempting
to establish causal connections to certain economic, social, or
political realities is simply the wrong way of approaching political
violence. Viewing political violence as an outcome of particular
societal features easily gives way to the perception that the
emergence of political violence is unavoidable.44 Nonetheless, the
reversed position is also problematic. Mass violence is not simply
irrational and unexplainable, and it remains a fact that political
violence seems to occur persistently in some countries and not –
or to a much smaller extent – in others.45 In any case, some
scepticism is justified whenever studies pursue the ‘explanation’
or ‘identification of causes’ of a phenomenon such as
political violence.

In the following, an overview is presented of conditions that may
be consenting to political violence in Kenya.

Strong executive powers, gaining political office as a
‘struggle for survival’, and manipulation of ethnicity

As implied in the above outline of political violence in Kenya,
support and resistance to political leaders of the country have often
followed ethnic lines. When forming government, some political
leaders have rewarded and ensured advantages to individuals from
supportive ethnic groups, while marginalising or excluding
individuals belonging to ethnic groups associated with political
opponents. The Waki Report, for example, notes how ‘Moi
rewarded his supporters, particularly the Kalenjin, through
appointments to political offices and with jobs in the public service
and the military’.46 The Waki Report also notes how during the
1980s and 1990s ‘land grabbing and the allocation of public
land as political patronage were part of the gross corruption of this
period’.47 In this way land allocation was often turned into a
reward to ‘politically correct individuals’.48
Consequently, political power has been perceived as vital for
obtaining access to public goods, and the distinction between
individuals benefitting or marginalised from such access is viewed in
ethnic terms.49 Added to this, political leaders may have had a
personal interest in obtaining power because large-scale corruption
has become institutionalised.50 In a sense, gaining political office
has been seen as ‘a struggle for survival’: if power is
obtained, the perception is that access to sparse resources is
ensured, and if not; marginalisation and exclusion is reckoned to
follow.

This crisis of governance, where many leaders work not for the
country as such but for themselves and their political supporters, is
sometimes said to follow from a system where power has been
centralised in the hands of few since independence.51 Noting that
Kenya’s constitution, despite continuous talks of a fundamental
amendment, is still based on its colonial-era form where the
president is awarded with extensive powers, Human Rights Watch
suggests that the risks of a ‘winner-takes-all calculus’
increases.52 The Waki Report, in a similar vein, notes: ‘power
has been personalised around the presidency and this has been
increased by changes in the Constitution under each President since
independence. Laws are routinely passed to increase executive
authority, and those laws seen as being in the way are often changed
or even ignored’.53 This is said to result in the perception
that ‘given the power of the president and the political class
everything flows not from laws but from the president’s power
and personal decisions. This also has led the public to believe a
person from their own tribe must be in power, both to secure for them
benefits and as a defensive strategy to keep other ethnic groups,
should these take over power, from taking jobs, land and
entitlements. All of this has led to acquisition of presidential
power being seen both by politicians and the public as a zero sum
game, in which losing is seen as hugely costly and is
not accepted’.54

Yet, as many of the Kenyans consulted by the author pointed out,
the perception that ethnic groups, as such, benefit from ‘one
of their own’ gaining presidency is highly miscalculated
because only a very limited number of individuals actually benefit
from these arrangements.

Rule of law problems and the institutionalisation of
political violence

Strong executive powers are also said to circumvent transparency
and checks and balances, thereby decreasing the likelihood that the
executive, or political supporters of the incumbent regime, are held
accountable for political violence. The Waki Report notes that
‘checks and balances normally associated with democracies are
very weak in Kenya and are deliberately so. Individuals in various
parts of government whether in the civil service, the judiciary, and
even in Parliament, understand that, irrespective of the laws, the
executive arm of government determines what happens’.55 The
argument often goes that beyond dubious or extra-legal acquisition of
public goods, the executive may have interest in maintaining
structures that diminish the rule of law, thus facilitating
government action (or inaction) that may include political
violence.56

Impunity in Kenya can be observed as playing out in three
different, but yet related, ways.

Firstly, responsible agents of large-scale violence that correlate
with a political agenda are seldom thoroughly investigated, arrested,
or prosecuted. Commenting on political violence surrounding the 1992
election, Africa Watch notes how ‘Kalenjin warriors’, who
backed then president Moi, were allowed to attack villagers from
other ethnic groups with no or only little attempts of the police to
intervene. Not only did the police according to Africa Watch refuse
to take statements from victims of the violence, in some cases they
also stood by passively while attacks were ongoing.57 ‘Kalenjin
warriors’ who were actually prosecuted often received lenient
sentences or were acquitted because the executive interfered in the
work of the judiciary.58 Inaction from authorities again prevailed
when political violence erupted after the 1997 elections. Some have
suggests that the police had received orders from the political
leadership not to intervene.59 Despite judicial inquiries into these
outbreaks of political violence that named several persons as
involved and recommended prosecutions, it has been suggested that
neither the Moi-administration nor its successor, the
Kibaki-administration, had interest in prosecutions commencing.60 In
a similar vein, violence committed prior to the 2007 elections did
seldom result in perpetrators being held accountable. The EU
monitoring commission notes: ‘in most cases, abuses did not
receive an appropriate response from the police and the judiciary and
there was therefore impunity towards perpetrators’.61 When the
most recent election violence erupted in December 2007, perpetrators
had good reason to assume that also this time politically motivated
violence would go unpunished.62 So far, they have not been mistaken:
the Waki Report concludes that out of more than 1,000 homicides
related to the election violence, only 19 were prosecuted.63

Secondly, impunity has played out as a matter of state agencies’
excessive and sometimes extra-legal use of violence, with other
authorities ignoring or for other reasons failing to address
responsible agents. For example, when the police responded to the
violence following the 2007 elections, they did so in a partial
manner where extensive use of force was deployed in areas dominated
by Odinga-supporters.64 The Waki Report assumes that more than one
third of the total casualties during the election violence results
from police shootings.65 The report also concludes that in many
instances the use of lethal force by the police targeted individuals
who were seemingly posing no immediate threat. In Kisumu, for
example, the Waki Report found that 30 out of 50 casualties of police
shootings had been shot from behind.66 The Waki Report also concludes
that some police officers were involved in criminal acts such as
sexual violence and looting.67 Despite allegations that Kenyan police
officers have violated the criminal code, according to the Waki
Report, the Kenyan police force has not initiated any comprehensive
internal investigations into the behaviour of police officers during
the election violence,68 and, apparently no police officers have yet
been prosecuted for extra-legal use of force related to the election
violence.69

Thirdly, impunity has prevailed historically in Kenya in the sense
that political figures that have called for or sponsored violence
have seldom faced criminal accountability. The Waki Report notes how
recommendations of the commission established to investigate the
ethnic/ political violence in the 1990s (the Akiwumi Commission) to
further investigate certain political leaders was halted by lack of
commitment in government circles and by a legal sector structured in
such a way that prosecutions of high-profile political figures were
unlikely to commence.70

The rule of law has thus tended to be put aside in contexts of
political competition.71 This is likely to have led to the
presumption for next generation perpetrators that committing acts of
violence in a context that relates to political competition will
remain not accounted for.72 Representatives of Kenyan civil society
consulted by the author all pointed to impunity and lack of
commitment to the rule of law as imperative to take into account if
attempting to understand the prevalence of political violence in
Kenya.

Continuous political violence in Kenya may also have had a
reinforcing effect in other ways. Political violence in the 1990s
resulted in many of the persecuted Kikuyu’s leaving their homes
in the Rift Valley and settling in Nairobi. Some joined the Mungiki
sect which – as pointed to above – has been an important
agent of political violence.73 Such institutionalisation of political
violence may have had the side-effect that violent behaviour has
become normalised. According to some, non-political violent crimes,
especially in larger urban areas, in part results from violent gangs
being called upon by political leaders in the struggle for political
influence.74 In this way, political violence is closely related to
other forms of violence.

Socioeconomic causes: poverty, unequal distribution of
resources and land issues

The sidelining of the rule of law in contexts of competing for
political power, the impunity for both instigators and on-the-ground
perpetrators and a political tradition that has, in many cases,
implied that forming a government is deemed essential for obtaining
access to resources cannot stand alone as explanations of political
violence. Socioeconomic factors such as widespread poverty, unequal
distribution of resources, high unemployment rates and land disputes
have often been pointed to as ‘root causes’ of political
violence in Kenya.75

There seems to be a sense among some observers that agents of
political violence in Kenya are fundamentally dissatisfied with
social and economic conditions of life. Kenya has an estimated two
million unemployed youth. Joining a gang may for some be seen as a
‘way of life’ that can increase possibilities.76 When
these gangs engage in political violence, members are sometimes
promised payment for their activities, and also less organised
perpetrators can benefit from looting. Some commentators on the
recent election violence argue that poverty and opportunism had a
significant impact on villagers’ and shantytown dwellers’
willingness to engage in political violence.77 For many of the
perpetrators, political agendas may thus be less relevant than
prospects of enrichment.

Participation in political violence is said to be furthered by a
widespread sense of dissatisfaction in the distribution of wealth.
Distribution of wealth is extremely unequal in Kenya. According to a
2004 report, Kenya is the 10th most unequal country in the world, and
the richest 10 percent of the population controls 42 percent of the
country’s wealth, while the poorest 10 percent own less than 1
percent. Access to resources varies highly from region to region.78
With these lenses, political violence is a way of demonstrating
dissatisfaction with the cruel conditions of life that stand in
contrast to the elite’s comfortable way of life which is
perceived by the poor to result from political connections and
corruption.79

In particular, questions related to land distribution and
ownership are central in explaining political violence in Kenya.
Despite several attempts of reforms, land grievances dating back to
the colonial era continue to constitute a major obstacle to peaceful
cohabitation in Kenya. The problem can be summarised as follows: when
Kenya became independent in 1963, the most fertile areas that had
been occupied by white settlers were handed over to the new
government instead of the people who had lived there before. Besides
selling pieces of this land on market terms, Kenyan governments have
continuously allocated these areas to shifting supporters for
patronage purposes. Moreover, because colonial laws were never
fundamentally changed, there are no provisions for collective land
rights, thus complicating ownership for communities that have
traditionally been pastoralists.80

At least two dimensions are relevant when considering land
distribution and ownership as a cause of political violence. First,
many families can barely make a living from the small piece of land
they own. As pointed out by one of the Kenyans consulted by the
author, ‘land is a national cake, and everybody should have at
least a small piece. But where some have plenty, most have little’.81
Shortage and unequal distribution of land can lead to dissatisfaction
with governance and violence may be a means of expressing
frustrations.82 Second, long-lasting problems of land ownership and
distribution have created tensions between communities. In the Rift
Valley, some Kikuyus have allegedly acquired land through connections
to the political elite.83 According to the Waki Report, Kenyans who
belong to the Kalenjin ethnic group tend to view the most recent
election violence as a result of land injustices.84

Political violence in Kenya has tended to concentrate in the Rift
Valley, often with the Kikuyu ethnic group on the one side and the
Kalenjin ethnic group on the other.85 Disputes over land ownership
are historically related to colonial and post-independent regimes’
unfair taking and allocation of land (and the colonialists’
forceful resettlement of individuals from certain ethnic groups).
Such disputes remain an unsolved problem that political leaders can
escalate by making reference to ethnicity. By doing so, the problem
acquires potential for inter-community conflict, as has indeed been a
characteristic of political violence throughout Kenya’s
history.86

In drawing on transitional justice discourses, the paper now turns
to an appraisal of how political violence in Kenya can be countered.
The analysis should be seen as a contribution to ongoing discussions
on what actions are required to prevent the recurrence of political
violence in Kenya. The analysis takes into account key developments
in Kenya following the outburst of violence following the 2007
elections.

Responding to Political Violence: Action Taken and a Framework
for Engagement

Transitional justice as a framework for analysing
preventive measures to political violence in Kenya

The idea that to avoid the recurrence of political violence and
other forms of mass atrocity, societies must confront these legacies
through legal and quasi-legal measures has only in recent decades
obtained a central place in discourses on conflict prevention, human
rights, and democratisation. Prior to the Latin American transitions
in the 1980s, human rights activists tended to rely on a methodology
that emphasised the exposure of political violence. In the early
1990s, activists and scholars alike increasingly began to advocate
for the need to retrospectively confront perpetrators of
state-sponsored violence.87 It is along this activism that the
so-called ‘transitional justice’ scholarship has been
formed. The scholarship, at this point dominated by international
lawyers, engaged with the question: ‘how should nascent
democracies address the human rights violations that plagued their
societies’ recent past?’88 A dichotomy between punishment
and amnesty provided the initial foundation for answering the
question. Parts of the scholarship, however, soon started to advocate
that ‘dealing with the past’ could entail other responses
than putting to trial perpetrators of state-sponsored violence, or
doing nothing.

With the proliferation of truth commissions in the 1990s, many
academics started to suggest that trial and punishment are
insufficient in addressing the root causes of conflict. For these
observers, truth commissions are seen as a response enabling enhanced
roles of victims and possibly paving the way to healing,
reconciliation and peace, in a way that criminal justice cannot
facilitate.89 Others, however, suggest that compared to criminal
trials, truth commissions constitute a ‘second-best option’.90

Besides criminal trials and truth commissions, reparations to
victims of past violations; vetting processes intended to rid state
institutions from known human rights perpetrators; and – but
more marginally – legal and institutional reform, are often
considered within an analytical framework of transitional justice.91

The term ‘transitional justice’ was initially reserved
for justice that deals with gross human rights violations in times of
fundamental (liberal) regime change. Contemporary transitional
justice discourses have expanded to cover questions of how societies
should deal with past civil war and other forms of large-scale
intra-state violence, also in cases where a fundamental political
transition is absent. The assumption is that many of the challenges
of doing justice which face these societies are not that different
from cases of fundamental and liberalising political transition.92
From that also follows that the field now embraces dealing with
large-scale violence committed by state actors as well as non-state
actors. The use of transitional justice discourses in connection with
attempts to deal with atrocities in northern Uganda is illustrative
of this trend.93 The importance of dealing with past violations is
said to flow from a variety of normative claims, such as
reconciliation, victims’ healing, and the consolidation of the
rule of law. Most of these objectives are related (or ought to be
related) to preventing the recurrence of large-scale
rights-violations.94

Although it is problematic to argue that a profound political
transformation has taken place in Kenya, transitional justice
discourses offer useful tools for appreciating how Kenya can tackle
political violence.

The paper now turns to an outline of what actions have been
undertaken; is underway; or may prospectively be embarked upon in
Kenya to deal with legacies of political violence and prevent its
recurrence.

Trial and punishment

Most of the debates on how to address political violence in Kenya
have focused on prosecuting and punishing responsible agents for the
violence surrounding the 2007 elections. Executive Director of Human
Rights Watch, Kenneth Roth notes that for Kenya to overcome the
legacies of political violence, it has ‘only two choices:
justice or impunity’.95 Roth argues that pursuing criminal
justice for the most recent election violence is crucial for ending a
culture of impunity.96

Likewise, the parties to the Kenyan National Dialogue and
Reconciliation (the parties) and a variety of Kenyan observers have
noted the importance of using criminal justice to prevent political
violence from recurring. The parties recognised that their final goal
is the achievement of ‘sustainable peace, stability and justice
in Kenya through the rule of law and respect for human rights’.97
They agreed that reaching this goal required the parties to conduct
further discussions on how to ensure ‘the impartial, effective
and expeditious investigation of gross and systematic violations of
human rights and that those found guilty are brought to justice’.98
The need to prosecute perpetrators of the 2007 election violence was
further recognised in a public statement of the parties on February
14 2008: to solve the political crisis surrounding the election
violence, the parties agreed that reconciliation and healing was
imperative, and reaching this end was said to require the
‘identification and prosecution of perpetrators of violence’.99
Likewise, the Waki Commission set up by the parties highlighted the
role of impunity as a cause of the election violence and recommended
the establishment of ‘special tribunals’ with specific
jurisdiction over the election violence and a judicial staff made up
of both Kenyans and foreigners. The Waki Report requested the parties
to reach an agreement on the establishment of such tribunals and put
forward a bill in Parliament. The request was made under threat that
failure to comply within a timeframe of 60 days after the Waki Report
was made public, would result in a list of names with high-profile
Kenyans, which the Waki Commission suspected to be responsible for
the violence, would be handed over to the prosecutor of the
International Criminal Court (ICC).100 Yet, a bill on the
establishment of special tribunals put forward in Parliament on
February 12 2009 was voted down. The bill was criticised by some
observers for failing to ensure the proposed tribunals’
independence from the executive and for being drafted with
insufficient input from Kenyan civil society.101

At the time of writing, debates continued on how, where and
whether efforts to prosecute those responsible for the most recent
election violence should commence, but the Kenyan government appeared
to be under pressure from various sides to domestically deal with the
question. Kofi Annan, the chief mediator of the Kenyan National
Dialogue and Reconciliation has handed over the list of alleged
high-profile perpetrators to ICC prosecutor, Luis Moreno-Ocampo.
Ocampo is attempting to push the Kenyans to take actions, but there
is profound disagreement among Kenyan decision-makers and it is far
from certain that steps to prosecute domestically will be taken.102

It is useful at this point to dwell by the implications of
prosecuting perpetrators of the post-election violence
internationally or nationally.

The establishment of the ICC has often been praised by legal
scholars. Cees Flinterman, for example, noted on the existence of the
ICC: ‘it is hoped [this] will end forever the culture of
impunity, thereby deterring the commission of gross human rights
violations in the future’.103 Should criminal prosecutions
related to the Kenyan elections violence commence before the Hague
tribunal, the advantage, compared to domestic prosecutions, is
usually perceived as deriving from the independence of the ICC from
national authorities, thereby increasing the likelihood that
high-profile Kenyans will be convicted if evidence confirms their
guilt.104

On the other hand, pursuing accountability before international
tribunals is often said to have significant flaws. First, it is clear
that prosecuting before the ICC is likely to include only a very
limited number of perpetrators and possible convictions are likely to
occur only after several years. It is worth keeping in mind that
since its establishment in 2002, despite investigations into
atrocities in the DRC, Northern Uganda, Darfur, and the Central
African Republic, at the time of writing, only one case has reached
its trial hearings (prosecutor vs. Thomas Lubanga Dyilo). In other
cases, however, arrest warrants have been issued and some cases are
in their pre-trial stage. Investigations against Lord’s
Resistance Army in Uganda have resulted in the ICC issuing altogether
five arrest warrants (but proceedings against one have been
terminated due to his decease). Besides the case against Dyilo, two
cases related to crimes committed in the DRC have reached their
pre-trial stage with the accused in custody. One case against a
citizen of the Central African Republic is at its pre-trial
stage.Finally, the UN Security Council referral of crimes in Darfur
to the ICC has led the court to issue arrest warrants against four
Sudanese citizens, including President Bashir. One of the Sudanese
accused has appeared voluntarily before the pre-trial chamber and the
rest remain at large.105 As follows from this outline, it is
extremely improbable that ICC investigations into the recent election
violence in Kenya would lead to arrest warrants being issued against
more than a couple of instigators. Should these Kenyans happen to be
incumbent ministers, members of parliament, or high-profile civil
servants, their actual handing over to The Hague to stand trial are
far from guaranteed. Moreover, any possible conviction of Kenyans
responsible for the election violence in The Hague is likely to occur
only after several years. Besides these pragmatic concerns,
international tribunals are often criticised for externalising
justice because those affected by mass violence, including victims,
have little influence on (and perhaps understanding of) the
proceedings; because trials take place far away from the communities
affected, thus making them inaccessible to the general public; and
because those notions of justice that international tribunals enforce
are not necessarily corresponding with notions of justice in the
communities affected by violence.106

Finally, and perhaps most important for the question of local vs.
international prosecutions for the Kenyan election violence, one must
realise that the key argument for pursuing criminal accountability
for the violence surrounding the 2007 elections usually rests on the
assumption that it requires punishment of perpetrators to ‘eradicate
impunity’.107 In the current debate on political violence in
Kenya, eradicating impunity is generally supposed to be a necessary
step to prevent the future occurrence of political violence, because
only so will prospective perpetrators be deterred from engaging in
political violence and only so can the rule of law be reinforced. The
Waki Report notes: ‘the eradication of impunity will […]
not only blow off the cover for persons who break the law of the land
but also deter others who may contemplate similar deeds in
future’.108 Logically, any deterrent effect must depend on how
prospective perpetrators perceive the chances of being held
accountable.109 If prosecutions in The Hague lead to the conviction
of one, two, or maybe three perpetrators of political violence, the
chances of being ‘caught and convicted’ for future
political violence – perhaps except for those holding the
highest offices – will be perceived small since the signal sent
is that the Kenyan state is unable or unwilling to deal with the
question domestically and will not prosecute political violence; at
worst a few leaders are prosecuted internationally. Moreover, putting
to trial perpetrators of political violence is sometimes said to
reinforce the rule of law symbolically by bringing about ‘collective
appreciation of the rule of law’.110 The symbolic effect on the
rule of law would be much greater if ‘Kenyans prosecute
Kenyans’, and in numbers far exceeding what the ICC would
enable. Nevertheless, reinforcing the rule of law by domestically
prosecuting perpetrators of the recent election violence is dependent
on the process’ legitimacy in the eyes of the general public,
and to the extent the set-up of special tribunals fails to secure
independence from the executive (or others’ interference) and
fails to bring to account also members of the political elite, the
process is likely to be judged as flawed and holds little potential
for strengthening the rule of law.111

Despite commentators’ enthusiasm for commencing processes of
criminal justice, there are, however, good reasons to question the
assumption that trying perpetrators of the most recent election
violence will automatically lead to the prevention of future
political violence in Kenya. The key argument for trial and
punishment in the Kenyan context stipulates that only by punishing
perpetrators of past violations can we avoid future violations. This
utilitarian justification for punishment finds support beyond the
Kenyan context.112 However, some commentators have pointed out that
there is not necessarily a correlation between failing to punish
perpetrators of past violations (for example by granting them
amnesties) and the recurrence of large-scale violations, as such.
Post-Franco Spain and post-civil war Mozambique are often quoted as
examples.113

On the other hand, it seems clear that in a country such as Kenya
where political violence has been sparked off not by one major single
event where the rule of law was extra-ordinarily put aside, but
instead reveals as a phenomenon that has played out with impunity
continuously since independence, putting to trial (a significant
proportion of) those allegedly responsible for more recent acts of
political violence may have a symbolic effect on the rule of law. In
this way, criminal accountability for recent acts of political
violence may help bring about profound change in political culture.

The question of whether and how criminal accountability as a
preventive measure ought to be utilised as a response to the latest
outbreak of large-scale election violence in Kenya should be debated,
but not from an ideological viewpoint where criminal justice is seen
as the solution to all problems. Instead, the question should be
assessed from a viewpoint where possible benefits of prosecuting
alleged perpetrators are discussed in conjunction with potential
flaws of the process’ set-up and with an assessment of other
actions that can be taken to ‘combat impunity’.

Should Kenya fail to prosecute domestically perpetrators of the
post-election violence in the near future, it is important to keep in
mind that ICC action does not preclude a domestic process at a later
stage.

Legal and institutional reform

Predominantly focusing on trial and punishment as the response
that can end impunity and establish or reinforce the rule of law, may
lead to neglect for other structural changes that are profound for
altering those conditions that allow disrespect for the rule of law.
It is obviously not a question of either/or: holding accountable
perpetrators of the recent election violence can and should go hand
in hand with a reform process that aims at transforming institutions
into more accountable, transparent, efficient and rights-oriented
entities. But, framing the transitional justice debate primarily as
an issue of ‘backward-looking’ punishment can lead to
disregard for the importance of changing those structures that are
generally believed to enable political violence.

A possible failure to see criminal justice unfold in Kenya risks
bringing about the impression that transitional justice, as such, has
failed. Whether or not prosecutions commence domestically, the debate
ought not to be disrupted from engaging further with questions of how
political violence can be prevented, for example through ‘deep’
legal and institutional change.

Most of the Kenyans consulted by the author suggested that legal
and institutional reforms are most central means in changing those
conditions that make possible political violence. The challenge is
that certain structures in Kenyan governance render difficult
accountability for political violence. The parties to the Kenyan
National Dialogue and Reconciliation recognised that addressing
underlying causes of political violence (the so-called ‘long-term
issues and solutions’ as entailed in ‘agenda item 4’)
is essential and depends on the undertaking of constitutional, legal
and institutional reform.114 Since then, the parties have confirmed
the importance and their commitment to profound legal and
institutional changes. The parties’ statement of 14 February
2008 concludes that a broad reform agenda is necessary to address the
root causes of the political crisis that had enabled political
violence to erupt following the 2007 elections. According to the
parties, this reform agenda includes for example ‘comprehensive
constitutional reforms’; ‘comprehensive electoral
reform’; ‘parliamentary reform’; ‘police
reform’ and ‘legal and judicial reforms’.115

Reflecting this acknowledgement, on 4 March 2008, the parties
issued a statement that acknowledges the importance of a
constitutional review process based on inclusiveness, and recalled
the need for its urgent undertaking by stating it should be completed
within 12 months.116 The July 2008 Implementation Matrix laid down
the overall framework according to which state institutions should be
reformed and put forward deadlines for their undertaking. Besides
reconfirming the commitment to concluding the constitutional reform
process within 12 months, it was noted that reforms of the judiciary
should strengthen its independence and commitment to human rights.
Moreover, a review process related to police reform was to be
finalised within six months; the constitutional review to establish
an independent police commission within 12 months; and recruitment
and training of police officers to bring the police-to-population
ratio to UN standards by 2012. Finally, a number of legislative
reforms targeting the civil service were envisioned to take place
following the coming into force of a new constitution, and the Kenyan
Parliament was to be subjected to reforms that aim at increasing its
oversight with the executive. This review process was stipulated to
take place within six months.117

Because most profound reforms are preconditioned on a new
constitution, many of these commitments to institutional change are,
however, yet to be implemented. To facilitate the constitutional
reform, parliament passed the Constitution of Kenya Review
(amendment) Act 2008 which established a committee of experts on
constitution review to prepare a draft constitution and present it
to parliament.118

Controversy has surrounded the committee’s commencement. On
23 May 2009, for example, Kenya’s Daily Nation reported that
the committee was complaining that it had not yet seen disbursement
of funds to make the committee fully operational.119 Moreover, some
commentators have questioned whether parliament, based on its current
composition, can agree on putting to referendum a constitution that
complies with the ‘deep’ reforms first envisioned by the
parties.120

Constitutional reform is deemed important by a large majority of
Kenyans. According to a January 2009 survey, 90 per cent strongly
agree or agree that ‘the coalition government must give Kenya a
new constitution’.121

Reforming the Kenyan police is by many observers deemed among the
most crucial aspects of the reform process. Such reforms are said to
hold potential for significantly strengthening respect for the rule
of law.122 In May 2009, a task force was established to facilitate
this reform but there seemed to be lack of clarity on exactly what
the task force should address and how ‘deep’ its
proposals for police reform should be.123

A key challenge facing the prospects for legal and institutional
change is that, unlike measures that pursue accountability for
perpetrators of past political violence, such reforms relate less
directly to ‘confronting the past’ and their
implementation is typically a long-term and technical process. This
may make a reform process seem less urgent than criminal trials. At
the same time, while putting to trial perpetrators of gross human
rights violations is supported by requirements in international law,
requirements to undertake legal and institutional reform have a much
looser legal foundation, if any.124 What is more, some stakeholders
have little interest in ‘deep’ structural change taking
place. Strong executive powers, for example, can be seen as enabling
a system where those who gain power can benefit excessively from
holding office, therefore potentially leaving incumbent cabinet
members and top-level civil servants with little interest in
strengthening the independence of the judiciary and in other ways
reforming the set-up of state institutions.

Kenyans consulted by the author generally held that many
politicians are part of an elite group that benefit from state
structures as they are, and will therefore pursue a status quo
– or at best a limited and superficial reform agenda. Compared
to criminal justice it is not only more difficult for civil society
to push for legal and institutional reform because the legal language
of state obligations is difficult to evoke, but stakeholders in the
reform process may also perceive profound reform as offering few
short-term benefits and prefer to deal with the past in a lighter and
less structural way.

Yet, because of the centrality of the institutional set-up of
state institutions in allowing political violence, engagement with
preventing political violence in Kenya ought to place legal and
institutional reform at the very core. Doing so requires that we
scrutinise how the reform process unfolds. It also requires that
political leaders remain under pressure to put into effect their
commitments to profound reform. Because ‘deep’ reform is
not an overnight undertaking but a long and complicated process, it
also requires some amount of patience. Sticking to deadlines can be
less important than pursuing a compromise that is broadly accepted
and at the same time engages substantially with the issues at stake.
In any case, the active involvement of Kenyan civil society is
imperative for the reform process to gain legitimacy and for
effectively scrutinising that political leaders use its context not
as a means of gaining personal or group advantages or as a
smoke-screen for maintaining compromised structures and institutions
under the cover of ‘reform’. The reform process must
ensure that state institutions are profoundly transformed; an
undertaking that will eventually benefit Kenyans, as such. It is, as
always, important that democracy realises through engagement and
works in a transparent way – and not as an exclusive top-down
and oblique process. It is also important, however, that the
compromises of democracy do not end up functioning as an excuse for
diminishing the agenda of ‘deep’ reform.

For these reforms to effectively change structures that enable
political violence, transitional justice discourses can provide
valuable input. It is increasingly acknowledged that a legalistic
top-down approach to transitional justice is insufficient and entails
a number of risks.125 While constitution-making is obviously about
law and inevitably will involve some degree of ‘top-down’
decision-making, scholars such as Kirsten McConnachie and John
Morrison have argued that ‘if constitution-making is to
maximise its transformative potential in the reconstitution of
societies, it must seek a more dynamic task than merely a
re-shuffling of elites as the traditional institutions of formal
government are re-populated’. It is argued that ‘transformation
must occur at an ethical level where the level of conduct is being
considered’, and constitution-making should be seen only as a
first stage in creating some of the conditions in which […]
negotiation and re-negotiation of how we wish to govern ourselves is
carried out’.126 Besides the importance of a participatory
process that aims at substantial societal change, perhaps the most
important lesson for the Kenyan reform process lies in asking the
question whether a technical approach to legal and institutional
change will actually transform the way institutions function and
relate to one and another, and to Kenyan citizens. Constitutional and
legal change sometimes looks good on paper, but yet creates little
on-ground change. According to some of the Kenyans consulted by the
author this is already a problem. One civil society representative
noted that ‘Kenya already has good laws; what we need is their
implementation and the government’s respect for the rule of
law’.127 From one perspective this is exactly the problem that
a constitutional review can solve, for example by strengthening the
independence of the judiciary and facilitating that state
institutions work in a transparent way.

However, this is not enough. As also recognised by the parties to
the Kenyan National Dialogue and Reconciliation, it is vital for
strengthening the rule of law that state officials are sufficiently
trained and that recruitment is based on qualifications.128 For
example, it makes little sense to reform the police by establishing
legal provisions for increased accountability and internal oversight
mechanisms if police officers are not trained to implement these
changes.

Some transitional justice scholars have suggested that to reform
state institutions and prevent the recurrence of human rights
violations, it is necessary to rid these institutions of known human
rights perpetrators. The argument goes that only if high-level
officials who have accepted and perhaps endorsed an institutional
culture where it is common practice that its agents violate the law
and well-known on-the-ground perpetrators are vetted can these
institutions undergo the needed change and again be perceived as
legitimate in the eyes of citizens.129 Heated debates about vetting
leaders of certain state institutions in Kenya have already unfolded.
The UN Special Rapporteur on extrajudicial, summary and arbitrary
executions, Philip Alston, recommends that both the Police
Commissioner and the Attorney General resign. The Kenyan government
responded that the Rapporteur is exceeding his mandate by making such
recommendations,130 but has later transferred the Police Commissioner
to another post.131 For state institutions that have a reputation for
failing to respond effectively and in a rights-oriented manner to
political violence, or are themselves a part of the problem, the
starting point must be that agents who are proved responsible for
violating the criminal code are punished according to the law, and
that those who are not will maintain their post unless they for other
reasons disqualify. Vetting should not be applied as a measure of
punishment but as a tool that may strengthen state institutions’
respect for the rule of law, integrity, and legitimacy in the eyes of
the general public. Because vetting state officials for the
individual in question in many ways resemble a court conviction, any
process that aims at removing rough elements known or assumed to have
been involved in serious human rights violations must provide
individuals with guarantees against arbitrary or collective
dismissal. A possible vetting process in Kenya should therefore not
be based on removing entities simply because they are alleged to have
been involved in political violence or because they are seen as
constituting an obstacle to reform,132 but ought to be based on due
process guarantees, in particular the presumption of innocence.133 In
any case, it should be up to Kenyan stakeholders to initiate a
possible vetting process, and foreign involvement must be careful not
to advocate for importing off-the-shelf models. Nonetheless, vetting
state institutions can be imperative for bringing about legitimacy
for compromised and disregarded institutions.

Victim redress and confronting socioeconomic causes of
political violence

Transitional justice discourses often emphasise the need to
redress victims in the aftermath of gross human rights violations.
Questions related to reparation for victims have historically been
central to the scholarship.134 International standards recognise
victims’ rights to reparation and stipulate how reparation can
take a variety of forms including, but not limited to, financial
compensation for harm suffered, restitution and different forms of
rehabilitation.135 Recent accounts tend to extend victims’
rights and often formulate transitional justice processes such as
criminal trials as a right of victims to see perpetrators brought to
account.136 For some commentators, remedying victims of mass violence
is not only a question of doing justice for the victims, but is also
seen as serving purposes of reconciliation and peace.137 Reparations,
even if mainly justified as a means of restoring victims’
dignity, can therefore potentially also play a role in preventing the
recurrence of political violence.

Questions related to victims’ redress have received little
attention in debates about addressing political violence in Kenya.
The Commission of Inquiry on Post-Election Violence was established
to ‘prevent any repetition of similar deeds and, in general, to
eradicate impunity and promote national reconciliation in Kenya’
and was mandated to ‘recommend measures of a legal, political
or administrative nature, as appropriate, including measures with
regard to bringing to justice those persons responsible for criminal
acts’.138 Yet, its recommendations focus primarily on how to
bring these perpetrators to justice and on how a variety of legal and
institutional reforms should be undertaken. However, the detailed
Human Rights Watch report on the 2007 election violence entails
recommendations for the international community to provide support
for initiatives aimed at ‘compensation for historical and
current human rights violations’, and for the Kenyan government
to ensure the establishment of ‘a process of compensation for
those who have lost their homes and property’ in connection
with the election violence.139

The parties to the Kenyan National Dialogue and Reconciliation in
their February 2008 agreement stated that ‘discussions will be
conducted to identify and agree on the modalities of implementation’
of measures aiming at ‘ensuring that the assistance to the
affected communities and individuals is delivered more
effectively’.140 Efforts to redress victims of political
violence in Kenya have mainly concentrated on facilitating the return
of IDPs following the most recent election violence. A Humanitarian
Fund for Mitigation of Effects and Resettlement of Victims of Post
2007 Election Violence has been set up. The fund aims at
reconstructing houses and replacing household effects for those
people who suffered material damages during the violence.141
Compensating individual victims of political violence, including
victims of sexual violence have not been prioritised to the same
extent.142

Difficult questions of reparation often arise in the aftermath of
large-scale political violence: should the focus be on compensating
individual persons who have been victims of rights-violations or
should a collective approach be taken where victims are defined in
group terms and obtain increased access to certain resources, such as
health care and education; what rights-violations should result in
compensation (only violations of civil and political rights or also
violations of economic, social and cultural rights); how far back
should we go in defining who is a victim; who should pay for
compensation schemes; and many more difficult questions arise.143

From a preventive perspective, it is important that Kenya
addresses questions of how victims of political violence can be
redressed. The question must be approached not only in terms of the
most recent election violence but also as a wider problem where
groups that have historically been exposed to political violence or
marginalised receive reparations. The development of such policies
requires much more than the adoption of a backward-looking approach
where victims of the recent election violence are compensated. It
requires also a future-oriented approach where the key objective is
to ensure that individuals and groups who have historically been
subjected to injustices become less marginalised, for example by
increasing access to education, health care, and land. Reconciliation
between communities can be important for preventing future political
violence because it potentially leaves both individuals and groups
with a sense that they can overcome tensions of the past and move
forward.144

The parties’ agreement to set up a ‘Truth, Justice and
Reconciliation Commission’ may prove important for these
objectives.145 The commission is mandated to inquire into historical
injustices, including political violence, community displacement and
grand corruption, and it is envisioned that it can ‘promote
peace, justice, national unity, healing, and reconciliation among the
people of Kenya.146 The commission is intended to provide a platform
for victims to be heard and restore their dignity; make
recommendations on how to redress victims of these injustices; and
more generally make recommendations for the prevention of political
violence and other violations.147 The commission is also mandated to
grant amnesties to perpetrators who make full disclosure of human
rights violations and economic crimes committed.148

The process that has led to the establishment of the commission
has been criticised for failing to consult sufficiently with civil
society, and the law itself has been described as flawed, for example
because it allows for amnesties, because it fails to secure
independence from other state institutions, because it lacks
provisions for implementation the commission’s
recommendations.149

It has often been a problem that recommendations of truth
commissions are not sufficiently implemented. In South Africa, for
example, commentators regret that many of the Truth and
Reconciliation Commission’s recommendations have not been
attended to.150

The Kenyan commission has potential to contribute to the reform
agenda discussed above as well as to other forms of preventive
actions. For this to happen, it is important that the commission’s
work is followed closely and debated in public. It is also important
that its recommendations are discussed openly and leaders take their
implementation seriously.

Beyond the Truth, Justice and Reconciliation Commission, a number
of important initiatives have been discussed which may further an
agenda of attending to socioeconomic causes of conflict. Agenda Item
4, as decided upon by the parties to the Kenyan National Dialogue and
Reconciliation, recognises the need for ‘tackling poverty and
inequity, as well as combating regional development imbalances’;
the need for addressing ‘unemployment, particularly among the
youth’; and the need for undertaking land reforms’.151
According to the parties’ Implementation Matrix, fundamental
land reforms are to be facilitated by the Constitutional review
process and a number of other mechanisms to be implemented to deal
legally and administratively with problems related to land allocation
and ownership.152 The same document envisions that action be taken to
address poverty, inequality, regional imbalances and unemployment.
Among many other activities, the Implementation Matrix stipulates
that action must be taken to ‘ensure equity and balance are
attained in development across all regions in job creation, poverty
reduction, improved income distribution and gender equity’;
‘increase availability of affordable and accessible credit,
savings programmes and appropriate technologies to create an enabling
environment for poor communities to take part in wealth creation’;
and ‘generate an average of 740 000 new jobs each year from
2008-2012’.153

While transitional justice as an analytical framework has
historically tended to neglect dealing with the past by addressing
socioeconomic causes of conflict, the importance of such means is
increasingly being realised in the scholarship.154 The fact that the
Kenyan framework for preventing the recurrence of political violence
outlines a detailed agenda and set of action needed to reverse
socioeconomic factors that are recognised as contributing to conflict
in many ways stand out in comparison to attempts in other countries
of dealing with past injustices.

Accepting that prevention depends on more than eradicating a
culture of impunity and reforming state institutions by paving the
way for confronting problems of poverty, unemployment and land
distribution is an important first step in addressing holistically
the root causes of political violence in Kenya. However, influential
stakeholders in Kenya may have personal interest in some of the
reforms not taking place. For example it has been noted that draft
land reform legislation is being lobbied against by large landowners
and certain members of cabinet.155 For the reforms to foster
substantial change it is obviously not enough that they are included
in a broader process that aims to prevent political violence and
conflict on paper. Both politicians and civil society must
continuously push for their actual implementation and ensure that
other pending questions of transitional justice do not lead to the
neglect of these important structural changes. The commitment
announced by the parties to the Kenyan National Dialogue and
Reconciliation to a reform agenda that includes altering
socioeconomic causes of conflict is vital but should be translated
into concrete and far-reaching initiatives and action. Again,
structural changes in society are not an overnight-undertaking.
Patience and long-term commitment is required from all involved
stakeholders.

Conclusion

With the adoption of a broad reform agenda by the parties to the
Kenyan National Dialogue and Reconciliation following the most recent
election violence, a window of opportunity has been created where
legacies of political violence in Kenya can be countered. This
commitment to confront past injustices and bring about substantial
change is imperative. After all, without leaders’
acknowledgement that certain features in society such as impunity,
the set-up of state institutions, and socioeconomic factors have
allowed for political violence, profound change is unlikely to occur.
Yet, the process of dealing with political violence in Kenya seems
threatened by a lack of sincere commitment among vital stakeholders.

Despite the existence of a civil society in Kenya that reminds the
political leadership of its pledges for reform and scrutinises action
taken – and the international community following closely the
developments – there are risks that important parts of the
reform process will end up neglected. To avoid these risks
materialising, political leaders must take responsibility, even if in
the short-term it might seem easier to move on without addressing
what is needed: ‘deep’, structural changes that can
strengthen the rule of law, and at the same time address
socioeconomic issues such as poverty, inequality, and land
distribution. Civil society must be allowed, and willing, to
participate and engage substantially in the further shaping and
implementation of the process. If not, risks are not only that the
undertakings will lack legitimacy but also that it becomes oblique,
superficial, and unsuccessful in reaching the objective of preventing
political violence. Although the present debate about preventing
political violence in Kenya tends to take its starting point in
addressing the recent election violence, it is clear that by
undertaking the reforms envisaged, many of the causes of political
violence could be confronted effectively.

Notes

1. The interviews were carried out confidentially and the
   identity of those organisations consulted will remain on file with
   the author only.
2. F N Aolín, Political violence and gender during times
   of transition, Columbia Journal of Gender and Law 15(3),
   2006, 829–849.
3. C Moser and F Clark, Victims, perpetrators, or actors?
   Gendered armed conflict and political violence. New York: St
   Martin Press, 2001, 36.
4. D A Hibbs Jr, Mass political violence: a cross-national
   causal analysis, New York: John Wiley and Sons, 1973.
5. Moser and Clark, Victims, perpetrators, or actors?
   36. On its ‘group’ or ‘mass’ character, see
   generally Hibbs Jr, Mass political violence.
6. C D L Rios, Understanding political violence,
   http://www.umbc.edu/llc/llcreview/2004/Understanding_Political_Violence.pdf
   accessed 12 May 2009, 30–32.
7. C A J Coady, Morality and political violence,
   Cambridge: Cambridge University Press, 2007, 3.
8. J E Alvarez, Crimes of state/crimes of hate: lessons from
   Rwanda, The Yale Journal of International Law 24,1999, 365–483.
9. M Mamdani, When victims become killers, Kampala:
   Fountain Publishers.
10. L Waldorf, Mass justice for mass atrocity: rethinking local
    justice as transitional justice, Temple Law Review
    79(1), 2006, 1–88, 30–32.
11. B Berman and J Lonsdale, Unhappy valley: conflict in
    Kenya and Africa, London: James Curry Publishers, 1992.
12. J Overton, The colonial state and spatial differentiation:
    Kenya, 1895–1920, Journal of Historical Geography
    13(3),1987, 267–282.
13. Africa Watch, Divide and rule: state-sponsored ethnic
    violence in Kenya, New York: Human Rights Watch, 1993,
    http://www.hrw.org/legacy/reports/1993/kenya1193.pdf,
    accessed 15 May, 2009, 6–8. See also Commission of Inquiry
    into Post-Election Violence, Report of the Commission of Inquiry
    into Post-Election Violence ‘Waki Report’, Nairobi,
    2008, 24.
14. Africa Watch, Divide and rule, 8-10. See also Waki Report,
    24–26.
15. Human Rights Watch, Playing with fire: weapons proliferation,
    political violence, and human rights in Kenya, New York: Human
    Rights Watch, 2002, www.hrw.org/legacy/reports/2002/kenya/,
    accessed 15 May 2009, 20–21.
16. Africa Watch, Divide and rule, 1. See also Kenyan National
    Assembly, Parliamentary Select Committee to Investigate Ethnic
    Clashes in Western and Other Parts of Kenya, Report of the
    Parliamentary Select Committee to Investigate Ethnic Clashes in
    Western and Other Parts of Kenya, Nairobi, 1992.
17. Africa Watch, Divide and rule, 12–16.
18. Human Rights Watch, Playing with fire, 24–59.
19. Amnesty International, Kenya: political violence spirals,
    London: Amnesty International, 1998,
    www.amnesty.org/en/library/info/AFR32/019/1998,
    accessed 1 May 2009, 1.
20. Amnesty International, Kenya: political violence spirals, 4.
21. Amnesty International, Kenya: political violence spirals,
    7–13.
22. Human Rights Watch, Ballots to bullets, 6.
23. M Bunting, The violence in Kenya may be awful, but it is not
    senseless ’savagery’, The Guardian, 14 January
    2008,
    http://www.guardian.co.uk/commentisfree/2008/jan/14/kenya.world,
    accessed 3 May 2009.
24. Human Rights Watch, Ballots to bullets, 23, 35.
25. Waki report, 383.
26. Human Rights Watch, Ballots to bullets, 2.
27. As of April 2009, the number of displaced households in the
    Rift Valley was estimated at more than 14,000. See Kenyan Ministry
    of Special Programmes, Status of satellite camps in Rift Valley as
    at 1st April, 2009,
    http://www.sprogrammes.go.ke/index.php?option=com_content&task=view&id=150&Itemid=1,
    accessed 10 June 2009.
28. Human Rights Watch, Ballots to bullets, 35–39.
29. Kenya Human Rights Commission, Violating the vote: a report
    of the 2007 general elections, Nairobi, 15 September 2008,
    www.khrc.or.ke/documents/violating_the_vote.pdf,
    accessed 10 June 2009, for example at 8.
30. Human Rights Watch, Ballots to bullets, 43–48.
31. Human Rights Watch, Ballots to bullets, 48.
32. See generally Waki Report, 417–420.
33. Human Rights Watch, Ballots to bullets, 24–31. See also
    Waki Report, 383.
34. D Wabala and F Mukinda, Trail of death as gunmen run wild,
    Daily Nation, 8 May 2009, 1 and 4.
35. E Totolo, Kenya: the Mungiki mess, ISN Security Watch,
    17 November 2008,
    http://www.isn.ethz.ch/isn/Current-Affairs/Security-Watch/Detail/?ots591=4888CAA0-B3DB-1461-98B9-E20E7B9C13D4&lng=en&id=93861,
    accessed 20 May 2009. On Mungiki’s association with
    ‘indigenous beliefs’ and the sects political agenda in
    earlier years, see G N Wamue, Revisiting our indigenous shrines
    through Mungiki, African Affairs, 100, 2001, 453–467.
36. E Totolo, Kenya: the Mungiki mess; Waki report, for example
    at 27.
37. See generally D M Anderson, Vigilantes, violence and the
    politics of public order in Kenya, African Affairs, 101,
    2001. 531–555.
38. UN Human Rights Council, Report of the Special Rapporteur
    on extrajudicial, summary or arbitrary executions, Mr. Philip Alston
    advance unedited version, UN Doc. A/HRC/11/2/Add.6, May 26,
    2009, for example para. 8 and 10. See the Kenyan Government’s
    response to the accusations (denying the existence of ‘death
    squats’ and political support for extra-judicial killings) in
    Government of Kenya, Response to the report of the Special
    Rapporteur on extrajudicial, arbitrary or summary executions,
    professor Philip Alston, on his mission to Kenya from 16-25
    February, 2009, 22 May 2009,
    http://www.protectionline.org/spip.php?article8295,
    accessed 10 June 2009.
39. D Anderson, How violence infected Kenya’s democracy,
    The Independent, 30 January 2008,
    http://www.independent.co.uk/opinion/commentators/david-anderson-how-violence-infected-kenyas-democracy-775619.html,
    accessed 21 May 2009. See also Waki report, for example at 27–28.
40. P M Kagwanja, Facing Mount Kenya or facing Mekka? The
    Mungiki, ethnic violence and the politics of the Moi succession in
    Kenya, 1987–2002, African Affairs 102, 2003, 25–49,
    quote from abstract at 25.
41. For example by collecting taxes and providing security for
    those who pay. See for example Mungiki: the growing crisis, Daily
    Nation, 15 June 2009, 1 and 6.
42. See for example the Standard’s cover of Mungiki attacks
    on villagers in late April in: Slaughter of the innocent, The
    Standard, 22 April 2009, 1, 4–5; and Daily Nation’s
    cover of the same event in Killings: Mungiki massacre, Daily
    Nation, 22 April 2009, 1–2.
43. Human Rights Watch, Playing with fire, 20.
44. Bunting comes close to perceiving the post-election violence
    as ‘economically rational’, and thus as a ‘natural
    result’ of certain socio-economic features of the Kenyan
    society and a political culture that endorses violence. See M
    Bunting, The violence in Kenya may be awful.
45. For a discussion of these issues, see for example M Mamdani,
    When victims become killers, preface.
46. Waki Report, 25.
47. Waki Report, 31.
48. Ibid citing Republic of Kenya, Report of the Commission of
    Inquiry into the Illegal/ Irregular Allocation of Pubic Land: The
    Ndungu Report, Nairobi: Government Printer, June 2004, 14.
49. Human Rights Watch, Ballots to bullets, 12–15.
50. Human Rights Watch, Ballots to bullets, 11–12.
51. Ibid.
52. Human Rights Watch, Ballots to bullets, 15–17.
53. Waki Report, 28.
54. Waki Report, 28.
55. Ibid.
56. Waki Report, for example at 26.
57. Africa Watch, Divide and rule, 61–67.
58. Africa Watch, Divide and rule, 67–71.
59. Amnesty International, Kenya: political violence spirals,
    10–13.
60. The Akiwumi Report was completed in 1999, but only made
    public in 2002 before Kibaki’s taking office. Human Rights
    Watch notes how ‘the report’s findings were completely
    ignored by the incoming administration’. See Human Rights
    Watch, Ballots to bullets, 18–19.
61. EU Election Observer Mission: Kenya, General Elections,
    Preliminary statement, 27 December 2007,
    http://issuu.com/tfk2/docs/kenya_2007_final_preliminary_statement/11,
    accessed 22 May 2009.
62. Human Rights Watch, Ballots to bullets, 17-20. See also Waki
    Report, 26–27.
63. Waki Report, 420.
64. Human Rights Watch, Ballots to bullets, 17-20; Waki
    Report, 59–60.
65. The Waki Report estimates that 405 of the 1133 victims were
    killed by gunshots and while the commission ‘acknowledges the
    possibility that some of those killed and wounded by gunshots may
    have been the victims of people other than the Police’ it
    concluded that ‘no evidence to this effect was received’.
    See Waki Report, 385
66. Waki Report, 387.
67. Waki report, 396-398, 421.
68. Waki report, 404.
69. Report of the Special Rapporteur on extrajudicial,
    summary or arbitrary executions, Mr. Philip Alston (advance unedited
    version), para. 68–73. According to the Kenyan
    Government, however, since 2000, 81 police officers have been
    prosecuted for murder or manslaughter. It is unclear how many –
    if any – of these are held to relate to the election violence.
    See Government of Kenya, Response to the report of the Special
    Rapporteur on extrajudicial, arbitrary or summary executions,
    professor Philip Alston, on his mission to Kenya from 16–25
    February, 2009, 1.
70. Waki report, 446–460, concluding at 456 that in ‘our
    view is that the lackadaisical manner in which the government dealt
    with the Akiwumi Report only goes to illustrate that the state was
    not particularly interested in resolving once and for all the issue
    of ethnic violence’.
71. As Kenya Human Rights Commission states: impunity has been ‘a
    recurrent problem during election periods, when Kenya seems to
    suspend laws or provide “collective impunity” for
    breaches of the same’. See Kenya Human Rights Commission,
    Violating the vote: a report of the 2007 general elections, Nairobi,
    15 September 2008, www.khrc.or.ke/documents/violating_the_vote.pdf,
    accessed 10 June 2009, 11.
72. Such correlation between impunity and political violence is a
    general assumption in scholarly writings on transitional justice.
    See for example J E Mendez, In defense of transitional justice, in J
    A McAdams (ed), Transitional justice and the rule of law in new
    democracies, Notre Dame: University of Notre Dame Press, 1997,
    1–26.
73. Author’s interview with representatives of civil
    society organisation, Nairobi, 28 May 2009. Notes on file with
    author. See also Waki Report, 27–28.
74. Author’s interview with representatives of civil
    society organisation, Nairobi, 21 May 2009. Notes on file with
    author.
75. See for example A Suich, Beyond tribalism: Kenya’s
    violence is not just about ethnicity. Age and poverty are factors
    too, Newsweek, 3 January 2008,
    http://www.newsweek.com/id/84257,
    accessed 20 May 2009.
76. Waki Report, 33–35.
77. Author’s interview with representatives of civil
    society organisation, Nairobi, 21 May 2009. Notes on file with
    author.
78. See generally Society for International Development, Pulling
    apart: facts and figures on inequality in Kenya, Nairobi: Society
    for International Development, 2004,
    http://www.scribd.com/doc/2223295/Pulling-Apart-Facts-and-Figures-on-Inequality-in-Kenya,
    accessed 14 May 2009.
79. Author’s interview with representatives of civil
    society organisation, Nairobi, 19 May 2009, notes on file with
    author.
80. Human Rights Watch, Ballots to bullets, 17–20; Waki
    Report, 12-15. See also Republic of Kenya, Report of the
    Commission of Inquiry into the Illegal/ Irregular Allocation of
    Pubic Land; The Ndungu Report, Nairobi: Government Printer,
    June 2004; Kenya Land Alliance, The national land policy in Kenya:
    addressing historical injustices, Issues paper No.2/2004,
    http://www.caledonia.org.uk/land/documents/kla_issues_paper.pdf,accessed
    May 12, 2009.
81. Author’s interview with representatives of civil
    society organisation, Nairobi, 21 May 2009, notes on file with
    author.
82. Author’s interview with representatives of civil
    society organisation, Nairobi, 21 May 2009, notes on file with
    author.
83. See for example Human Rights Watch, Ballots to bullets,
    12–15.
84. Waki Report, 32.
85. See for example Africa Watch, Divide and rule, 22–24.
86. See for example A Suich, Beyond tribalism: Kenya’s
    violence is not just about ethnicity.
87. See for example A Neier, Rethinking truth, justice, and guilt
    after Bosnia and Rwanda, in C Hesse and R Post (eds), Human
    rights in political transitions: Gettysburg to Bosnia, New
    York: Zone Books, 1999, 39–52.
88. Feher, Michael, Terms of reconciliation”, in Hesse,
    Carla and Post, Robert, Human Rights in Political Transitions:
    Gettysburg to Bosnia, New York: Zone Books, 1999, 325-338.
89. For a comprehensive overview of truth commissions and for a
    discussion of their merits and challenges, see generally P B Hayner,
    Unspeakable truths: facing the challenge of truth commissions,
    New York: Routledge, 2002.
90. C S Nino, Radical Evil on Trial, New Haven and
    London: Yale University Press, 1996, 146.
91. For a discussion of these ‘transitional justice
    mechanisms’, see for example M Minow, Between vengeance
    and forgiveness: facing history after genocide and mass violence,
    Boston: Beacon Press, 1998; or R G Teitel, Transitional justice,
    Oxford: Oxford University Press, 2000.
92. For the argument that transitional justice discourses can
    inform both responses to past repression in periods of transition
    from authoritarianism to democracy and responses to past widespread
    violence in so-called ‘conflicted democracies’, see
    generally F N Aolaín and C Campell, The paradox of transition
    in conflicted democracies, Human Rights Quarterly 27
    (2005), 172–213.
93. See for example J O Latigo, Northern Uganda: tradition-based
    practices in the Acholi region”, in L Huyse and M Salter
    (eds), Traditional justice and reconciliation after violent
    conflict: learning from African experiences, Stockholm:
    International Institute for Democracy and Electoral Assistance,
    2008, 85–122.
94. On the normative claims of transitional justice see for
    example Clark’s discussion in P Clark, Establishing a
    conceptual framework: six key transitional justice themes, in P
    Clark and Z D Kaufman (eds), After genocide: transitional
    justice, post-conflict reconstruction and reconciliation in Rwanda
    and beyond, London: Hurst, 2008, 191-205. On the rule of law
    assumption and liberalisation, see more specifically Teitel,
    Transitional justice. On the preventive rationale, see for
    example UN Secretary-General, The rule of law and transitional
    justice in conflict and post-conflict societies: report of the
    Secretary-General, UN Doc. S/2004/616, 2004, for example para.
    4.
95. K Roth, Justice or impunity: what will Kenya
    choose, 3 April 2009,
    http://www.hrw.org/en/news/2009/04/03/justice-or-impunity-what-will-kenya-choose,
    accessed 12 June 2009.
96. Ibid.
97. Parties to the Kenyan National Dialogue and
    Reconciliation on the resolution of the political crisis and its
    root causes; the Government of Kenya/Party of National Unity and the
    Orange Democratic Movement, Public statement, Nairobi, 1 February
    2008,
    http://www.dialoguekenya.org/docs/Public%20Statement%20from%20Dialogue%20Feb%201%20FINAL.pdf,
    accessed 29 May 2009, preamble.
98. Parties to the Kenyan National Dialogue and
    Reconciliation on the resolution of the political crisis and its
    root causes; the Government of Kenya/Party of National Unity and the
    Orange Democratic Movement, Kenyan National Dialogue and
    Reconciliation: annotated agenda and timetable, Nairobi, 1 February
    2008,
    http://www.dialoguekenya.org/docs/Signed_Annotated_Agenda_Feb1st.pdf,
    accessed 1 February 2009, agenda 2.
99. Parties to the Kenyan National Dialogue and
    Reconciliation on the resolution of the political crisis and its
    root causes; the Government of Kenya/Party of National Unity and the
    Orange Democratic Movement, Agenda item 3: how to solve the
    political crisis, Nairobi, 14 February 2008,
    http://www.dialoguekenya.org/docs/14_Feb_08_TsavoAgreement.pdf,
    accessed 10 June, 2009,para. 3
100. Waki report,
     472-475.
101. Human Rights Watch, Kenya: swiftly enact special
     tribunal: International Criminal Courts should be a last resort for
     justice, 25 March 2009,
     http://www.hrw.org/en/news/2009/03/24/kenya-swiftly-enact-special-tribunal,
     accessed 12 May 2009.
102. E Thomasson, Ocampo: I will work with local
     courts, Sunday Nation,
     31 October 2009. See also P Opiyo and B Gikandi, Raila: we want
     local tribunal, The Standard,
     15 June, 1 and 5.
103. C Flinterman, The International Criminal Court:
     obstacle or contribution to an effective system of human rights
     protection, in R Thakur and P Malcontent (eds), From
     sovereign impunity to international accountability: the search for
     justice in a world of states, Tokyo: United
     Nations University Press, 2004, 266.
104. This for example was the general opinion among
     those Kenyans consulted by the author.
105. See the International Criminal Court, Situations
     and cases, http://www.icc-cpi.int/Menus/ICC/Situations+and+Cases/,
     accessed on 10 June 10 2009.
106. For a profound critique of international
     tribunals and international criminal justice, see generally Drumbl,
     Atrocity, punishment, and international law.
107. Waki report, 472.
108. Waki report, 444.
109. M J Aukerman, Extraordinary evil, ordinary
     crime: a framework for understanding transitional justice”,
     Harvard Human Rights Journal 15
     (2002), 39–97.
110. Nino, Radical Evil on
     Trial, 146–147.
111. At least this was common perception among those
     Kenyans consulted by the author.
112. See for example D F Orentlicher, Settling
     accounts: the duty to prosecute human rights violations of a prior
     regime, The Yale Law Journal
     100 (1991), 2537–2615.
113. H Cobban, Amnesty after
     atrocity: healing nations after genocide and war crimes,
     Boulder: Paradigm Publishers, 2007. For a comprehensive empirical
     study of amnesties in political transitions, see L Mallinder,
     Amnesty, human rights and political
     transitions: bridging the peace and justice divide,
     Oxford: Hart Publishing, 2008.
114. Parties to the Kenyan National Dialogue and
     Reconciliation on the resolution of the political crisis and its
     root causes; the Government of Kenya/Party of National Unity and the
     Orange Democratic Movement, Kenyan National Dialogue and
     Reconciliation: annotated agenda and timetable, agenda 4.
115. Parties to the Kenyan National Dialogue and
     Reconciliation on the resolution of the political crisis and its
     root causes; the Government of Kenya/Party of National Unity and the
     Orange Democratic Movement, Agenda item 3: how to solve the
     political crisis, para. 3.
116. Parties to the Kenyan National Dialogue and
     Reconciliation on the resolution of the political crisis and its
     root causes; the Government of Kenya/Party of National Unity and the
     Orange Democratic Movement, Longer-terms issues and their solutions:
     constitutional review , Nairobi, 4 March 2008,
     http://www.dialoguekenya.org/docs/Signed_Annotated_Agenda_Feb1st.pdf,
     accessed 1 February 2009, agenda 4.
117. On all of these components of institutional
     reform, see Parties to the Kenyan National Dialogue and
     Reconciliation on the resolution of the political crisis and its
     root causes; Statement of principles on long-term issues and
     solutions, Nairobi, 30 July 2008,
     http://www.dialoguekenya.org/docs/S_of_P_with_Matrix.pdf,
     accessed 5 June 2009.
118. Constitution of Kenya Review Act, 2008 Act
     (Act no. 9 of 2008), article 23.
119. O Mathengep, No funds yet for review team,
     Daily Nation, 23
     May 2009,
     http://www.nation.co.ke/News/politics/-/1064/602162/-/xy2bq6z/-/index.html,
     accessed 15 June 2009.
120. J Kwayera, Reforms far from being realised, The
     Standard, 1 June 2009,
     http://www.eastandard.net/archives/InsidePage.php?id=1144015629&cid=289&,
     accessed 15 June 2009.
121. The Kenya National Dialogue and Reconciliation
     Monitoring Project, National baseline survey, January 2009, 27.
122. See for example M Machuka, US urges Kenya to
     reform police; judiciary, The Standard,
     15 June 2009,
     http://www.eastandard.net/InsidePage.php?id=1144016732&cid=418&,
     accessed 15 June 2009. The same view was put forward by many of the
     Kenyans consulted by the author.
123. Editorial, Speak in one voice on Kenya police
     reforms, Daily Nation,
     13 May 2009,
     http://www.nation.co.ke/oped/Editorial/-/440804/597934/-/q0km7lz/-/index.html,
     accessed June 15 2009.
124. A duty to prosecute perpetrators of
     international crimes and other gross human rights violations is
     generally said to flow both from treaty law such as the
     International Covenant on Civil and Political Rights and, for some
     crimes, from customary international law. See Orentlicher, Settling
     accounts: the duty to prosecute human rights violations of a prior
     regime. Exactly how and when such duty requires states to punish
     perpetrators of political violence that amount to gross human rights
     violations is still a matter of dispute. For a recent account of the
     question see L Mallinder, Can amnesties and international justice be
     reconciled?, The International Journal of
     Transitional Justice 1 (2007), 208–230.
     Legal and institutional reform, on the other hand, is seldom debated
     as an obligation of international law.
125. See for example K McEvoy, Letting go of
     legalism: developing a ‘thicker’ version of transitional
     justice, in K McEvoy and L McGregor (eds), Transitional
     justice from below: grassroots activism and the struggle for change,
     Human rights law in perspective (vol. 14): transitional justice from
     below: grassroots activism and the struggle for change,
     Oxford and Portland: Hart Publishing, 2008, 15–45.
126. K McConnachie and J Morrison,
     Constitution-making, transition and the reconstitution of society,
     in K McEvoy and L McGregor (eds), Transitional
     justice from below: grassroots activism and the struggle for change,
     Human rights law in perspective (vol. 14): transitional justice from
     below: grassroots activism and the struggle for change,
     Oxford and Portland: Hart Publishing, 2008, 97.
127. Author’s interview with representatives
     of civil society organisation, Nairobi, 21 May 2009 (notes on file
     with author).
128. Parties to the Kenyan National Dialogue and
     Reconciliation on the resolution of the political crisis and its
     root causes; Statement of principles on long-term issues and
     solutions.
129. A Mayer-Rieckh, On preventing abuse: vetting
     and other transitional reforms, in A Mayer-Rieckh and P de Grieff
     (eds), Justice as prevention: vetting public
     employees in transitional societies, New
     York: Social Science Research Council, 2007, 482–520.
130. Report of the Special Rapporteur on
     extrajudicial, summary or arbitrary executions, Mr. Philip Alston
     (advance unedited version), para. 85 (a)
     and 93. On the government of Kenya’s response, see for example
     B Namunane and A Shiundup, Death squads: Kenya plots to oust Alston,
     Daily Nation, 7 June 2009,
     http://www.nation.co.ke/News/-/1056/607960/-/item/1/-/k1hajv/-/index.html,
     accessed 16 June 2009.
131. C Rwenji, Former police boss takes over at the
     GPO, Daily Nation,
     14 September 2009,
     http://www.nation.co.ke/News/-/1056/657852/-/umuqqh/-/index.html,
     accessed 15 September 2009.
132. Report of the Special Rapporteur on
     extrajudicial, summary or arbitrary executions, Mr. Philip Alston
     (advance unedited version), para. 19.
133. See also F Andreu-Guzmán, Due process
     and vetting, in A Mayer-Rieckh and P de Grieff (eds),
     Justice as prevention: vetting public employees in transitional
     societies, New York: Social Science
     Research Council, 2007, 448–481.
134. See for example Minow, Between
     vengeance and forgiveness, 91–117.
135. UN General Assembly,
     Basic principles and guidelines on the right to a remedy and
     reparation for victims of gross violations of international human
     rights and serious violations of international humanitarian law,
     UN Doc. A/RES/60/147, 2006, principle 15–23.
136. M C Bassiouni, International recognition of
     victims’ rights, Human Rights Law
     Review 6 (2006), 203–279; R
     Aldana-Pindell, An emerging universality of justiciable victims’
     rights in the criminal process to curtail impunity for
     state-sponsored crimes, Human Rights
     Quarterly 26 (2004), 605–686.
137. Teitel, Transitional
     justice, 127
138. Parties to the Kenyan National Dialogue and
     Reconciliation on the resolution of the political crisis and its
     root causes; the Government of Kenya/Party of National Unity and the
     Orange Democratic Movement, Agreement
     establishing a commission of inquiry on post-election violence,
     Nairobi, 4 March 2008, 1.
139. Human Rights Watch, Ballots to bullets, 10.
140. Parties to the Kenyan National Dialogue and
     Reconciliation on the resolution of the political crisis and its
     root causes; the Government of Kenya/Party of National Unity and the
     Orange Democratic Movement, Kenyan National Dialogue and
     Reconciliation: annotated agenda and timetable, agenda 2.
141. Kenyan Government, Kibaki: Launch of public
     fundraising towards the resettlement of internally displaced
     persons, 12 May 2008,
     http://www.polity.org.za/article/kenya-kibaki-launch-of-public-fundraising-towards-the-resettlement-of-internally-displaced-persons-12052008-2008-05-12,
     accessed 16 June 2009.
142. CARE, Kenya: Women and girls victims of
     post-election violence still seeking justice one year later,
     Nairobi, 23 February 2009,
     http://www.reliefweb.int/rw/rwb.nsf/db900sid/MUMA-7PP59J?OpenDocument,
     accessed 16 June 2009.
143. See generally J Elster, Closing
     the Books: Transitional Justice in Historical Perspective,
     Cambridge: Cambridge University Press, 2004.
144. V C Charles, Reconciliation, in V C Charles and
     E Doxtader (eds), Pieces of the puzzle:
     keywords on reconciliation and transitional justice,
     Cape Town: Institute for Justice and Reconciliation, 2004, 3-9; and
     M R Amstutz, Restorative justice, political forgiveness, and the
     possibility of political reconciliation”, in D Philpott (ed),
     The politics of past evil: religion,
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ABOUT THE PAPER

Following the 2007 elections, Kenya suffered
political violence. More than 1 000 Kenyans lost their lives and
many were displaced. While often portrayed as standing in contrast to
an otherwise politically stable country, the fact remains that
large-scale political violence has occurred on several other
occasions. This paper looks into the legacies of political violence
in Kenya, and points to some of its main causes. By drawing on
transitional justice discourses, the paper discusses the action taken
by the parties to the Kenya National Dialogue and Reconciliation and
other stakeholders. In analysing these measures, it is argued that
for Kenya to prevent the recurrence of political violence, priority
must be given to profoundly reforming institutions and ensuring that
accountability measures are set up.

ABOUT THE AUTHOR

Thomas Obel Hansen is a PhD researcher with Aarhus
University Law School. His research focuses on the field of
transitional justice, and is based on fieldwork in Rwanda. He has
conducted research stays with African civil society organisations,
including a stay with ISS’ Nairobi office in February-June
2009. He has published and lectured on human rights, transitional
justice, and international criminal law.

FUNDER

This publication was made possible through funding
provided by the Governments of Denmark, the Netherlands, Norway
and Sweden.