How Impunity Reigns in Kenya

Originally published

April 6, 2011 | by Mugambi Kiai

The following article originally appeared in The Star.

By this time next week, Francis Muthaura, Uhuru Kenyatta, Hussein Ali, William Ruto, Henry Kosgey, and Joshua arap Sang—the six individuals considered by the prosecutor of the International Criminal Court to be the most responsible for Kenya's 2007 post-election violence—will have had their first, formal, face-to-face date with the ICC. They are still innocent in the eyes of the law, obviously, and will remain so unless proven guilty by that court. As their day of reckoning has rapidly approached, accusations and counter-accusations about how we got here have reached a shrill, deafening crescendo.

Yet, there is a simple narrative that explains how we got here. It goes something like this:

This is a story about four people named: Everybody, Somebody, Anybody, and Nobody. There was an important job to be done and Everybody was sure that Somebody would do it. Anybody could have done it, but Nobody did. Somebody got angry about that, because it was Everybody's job. Everybody thought Anybody could do it, but Nobody realized that Everybody wouldn't do it. It ended up that Everybody blamed Somebody when Nobody did what Anybody could have done.

This is the tragic metaphor of how impunity works in Kenya. It is simply about the deliberate blurring of roles when, at first, it seemed absolutely clear where responsibility rested. When things do not get done or accountability is about to dawn these lines are totally obscured; making it virtually impossible to discern who should be held accountable or how this should happen. Yet the key is, and always was, "it was Everybody's job."

Let us be very clear about something here: "Everybody" is actually not the ordinary mwananchi, but the leadership; for it is not the job of the ordinary citizen to deliver with accountability. That is the purpose and role of the leadership: it is why the leadership regularly seeks the electoral mandate to govern. It is the leadership that is mandated and obligated to tackle corruption, tribalism, arbitrary violence, extra-judicial executions, bad roads, the lack of clean water, the lack of affordable housing, the IDP question, the re-afforestation of the Mau, the implementation of the new constitution, and the implementation of Vision 2030; you name it.

Of course, in a working democracy, the citizen has a role to play to ensure the successful achievement of all these obligations; but it behooves the leadership to get the job done. Yet how many times has "Everybody" indicated that "Anybody" could do it, "Somebody" would do it but "Nobody" did in fact do it?

Take the now highly contentious issue of accountability for post-election violence: the following was the commitment made by "Everybody":

At the fourth session held on 1 February 2008 under the Chairmanship of Mr. Kofi Annan, of the Panel of Eminent African Personalities, the Parties to the Kenyan National Dialogue and Reconciliation on the resolution of the political crisis and its root causes, namely the Government of Kenya/Party of National Unity and the Orange Democratic Movement, agreed on… Ensuring the impartial, effective and expeditious investigation of gross and systematic violations of human rights and that those found guilty are brought to justice.

"Somebody" was charged with this task: the Commission of Inquiry on Post-Election Violence, now popularly called the Waki Commission. It was a non-judicial body mandated (i) to investigate the facts and surrounding circumstances related to acts of violence that followed the 2007 Presidential Election, (ii) investigate the actions or omissions of state security agencies during the course of the violence, and make recommendations as necessary, and (iii) 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.

The Waki Commission recommended the formation of a special tribunal within a specific time-frame and prescribed its mandate, powers, and architecture. It also prescribed the involvement of the Court in the event that this recommendation was not implemented. "Everybody" was required to sign off on these recommendations to ensure legitimacy; the two principals did so on December 16, 2008; the day before the prescribed deadline. No one held a gun to their heads to sign off on it.

But Parliament firmly declined more than once to form the Special Tribunal. Thereafter, instead of acknowledging that "Somebody" would in these circumstances only be the Court as agreed to in writing, cabinet mischievously tried to push the task to the Truth, Justice ,and Reconciliation Commission. We are now being told that this task can be performed under the new constitution by still unreformed or yet-to-be re-created state institutions. In short, "Anybody" can now do this task. Meanwhile, those suggesting that "Anybody" can fulfill the task are also now intimating that the legitimate rejection of flawed electoral results or calls to non-violent mass action constitute a gross and systematic violation of human rights.

The intention obviously is that nothing gets done. And then, "Everybody" will blame "Somebody" when "Nobody" does what "Anybody" could have done. Get it? Impunity!