Criminal Accountability. The 2022 post-election protests in Kenya.

OKETCH E.ODHIAMBO

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Abstract

This paper looks into the role played by those responsible for violence after the 2022 general
election. It examines the demand for criminal accountability for the atrocities committed after
Kenya's contested General elections of 2022. It explains how the Kenyan Judicial System has
failed to prosecute those that fuel post-election atrocities. Great focus has been on accountability
for the loss of lives and property witnessed during the violent protests. There has been extensive
allegations of fraud, including irregularities in the final tallying of the vote leaving the country
wracked by fratricidal violence. In all these incidents, the supporters of rival candidates clash
with each other, divided mostly along ethno-regional lines. The call for protests by the
opposition leaders against the rising cost of living had evolved into violent riots, loss of property
and shootings by the police on civilians. The Kenyan authorities have shown apathy and
reluctance to initiate genuine, credible, independent, and effective measures to investigate,
prosecute, and punish perpetrators of the post election violence and provide meaningful
reparations to the victims.

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INTRODUCTION

Hundreds of political protest perpetrators do not face retributive justice system in Kenya. Despite
the public declaration to support the prosecution process, the government has not been able to
substantially hold the perpetrators accountable since the 2007 post election violence.1 Given the
context of well-established impunity for political crimes, it is no surprise that politicians in
Kenya believe that they could get away with virtually anything in order to achieve their political
ends, both before and after the general elections.2

In the wake of the 2022 general elections, public tension had begun to rise.3 However, the focus
during this campaign was whether the Kenyan electoral landscape had really shifted to
emphasize class, demographic, and elite divisions. Political disorder in Kenya often increases
during election periods.4 The run up to the 2022 general elections were not an exception as
Kenya recorded peaks in political violence. Just before the elections, the police officers had
arrested and charged nine students for allegedly circulating leaflets warning certain communities
against voting in a certain manner. In 2022, more than 1,060 political disorder events had been
reported as of 5th August — already the largest number of incidents recorded for any previous
election in Kenya.5

The tensions begin from the party primaries into the elections day and morph into violent
political protests immediately after the announcement of the winners and losers. This was
epitomized by the violent altercations at the Bomas of Kenya just before the announcement of
the winner by the then Chairman of IEBC, Mr. Wafula Chebukati and the subsequent
denouncement of the Presidential election results by four senior commissioners of IEBC.

Amid elevated levels of protest and riot activity, armed clashes between Kenya’s security forces
and the violent rioters against the increased cost of living took place across many major towns.

1
Akiwumi Report, Government of Kenya (2002) Report of the Judicial Commission Appointed to Inquire into Tribal Clashes in
Kenya. Nairobi: Government of Kenya.
2
Peter Mwangi Kagwanja, Killing the Vote: State-sponsored violence and flawed elections in Kenya (Kenya Human Rights
Commission, Nairobi, 1998)
3
People Daily, 23 February 2022
4
Stephen Brown, ‘Quiet diplomacy and recurring “ethnic clashes” in Kenya’
5
Human Rights Watch, Ballots to Bullets: Organized political violence and Kenya's crisis of governance (Human Rights Watch,
New York, NY, 2008)

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Violence against civilians had been highest in the Kerio Valley region, where women and
children had been particularly affected. The pastoral militia attacks had also affected Baringo,
Elgeyo and West Pokot. The re-emergence of outlawed groups such as the Mombasa Republican
Council and the emergence of gangs such as ‘Confirm’ in Nakuru and its subsidiary ‘Nyuki.’
‘Miticharaka’ in Tana River and ‘Bogi Mawe’ in Kitale among others, had also contributed to
increased violence, including murder and muggings. These events of political intolerance must
be curtailed through proper measures.6

National Cohesion and Integration

Under the National Cohesion and Integration act No.12 of 2008, the National Cohesion and
Integration Commission is established. The establishment of NCIC recognized the need for a
national institution to promote national identity and values, mitigate ethno-political competition
and ethnically motivated violence, eliminate discrimination on ethnic, racial and religious basis
and promote national reconciliation and healing. The practicability of the mission of this
commission , however, is questionable. Kenyans are generally sceptical. Does the commission
have the grit to go high enough up the chain of command and prosecute the perpetrators
of such violence?

In the aftermath of the 2007 post election violence and subsequent quest for political
accountability, the Waki Commission recommended that, domestic prosecutions of all the
persons who took part in the organization, planning and direct perpetration of the violence must
be done immediately after publishing its findings.7 The commission then, proposed for the
establishment of a special tribunal that would look into the perpetrators of crimes against
humanity, a move that was thwarted by the National Assembly twice.

Domestic accountability for the post election violence

6
David Anderson and Emma Lochery, ‘Violence and exodus in Kenya's Rift Valley, 2008: predictable and
preventable?’, Journal of Eastern African Studies2, 2 (2008), pp. 328–43
7
Waki Commission, Report of the Commission of Inquiry into Post-Election Violence (Nairobi, Kenya, 2008).

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The Kenyan local justice system is not structured in a way that it is able to stand the test of grit to
prosecute those that influence post election violence. Theoretically, prosecutions in the Kenyan
context would serve two purposes. The first purpose is deterrence in order to prevent similar
violence in future.8 The second purpose is retribution meant to break the tradition of impunity,
especially for crimes associated with the political elite or the rich, who have previously been
considered “too powerful” for the domestic courts to dare hold accountable for wrong doing.9
The international Court of Justice on the other hand, as established under the Rome statute, is a
court of last resort, and only steps in when domestic justice mechanisms fail.

In the Constitutional Petition No. 122 of 2013, the Court found that the Government of Kenya
was responsible for a failure to conduct independent and effective investigations and
prosecutions of SGBV [sexual and gender-based violence]-related crimes during the post-
election violence. The High Court of Nairobi thus ruled in favor of four survivors of post-
election sexual violence in Kenya, awarding each a sum of 4 Million Shillings. The judgement
marks the first time ever in Kenya that post-election sexual violence has been legitimately
recognized by the government and survivors have been offered compensation for harm suffered.
However, it is more clear that even then, the courts did not prosecute those that were involved in
such atrocities.

RECOMMENDATIONS

The 2010 Constitution as the new hope

8
tephen Brown, ‘Theorising Kenya's protracted transition to democracy’, Journal of Contemporary African Studies22, 3 (2004),
pp. 327–42.
9
Daniel Branch and Nic Cheeseman, ‘Democratization, sequencing, and state failure in Africa: lessons from Kenya’, African
Affairs108, 430 (2009), pp. 1–26

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Kenya's 2010 constitution holds promise. Among many other things, it contains provisions for
judicial reform and the vetting of judges, after which more effective domestic prosecutions could
potentially take place.10 The constitution has openly indicated that the independence of the
judiciary is paramount.11 This has brought about the belief that the Kenyan Judicial System is no
longer weak, frail and unable to bring justice. The International Criminal Court is not anymore,
the only realistic hope that remains for judicial accountability.12

Proper training of the police service.

The Kenya National Police Service must undertake proper review of the training methods. This
will aid in planning and preparing law enforcement operations. The National Police Act of 2011
mandates that the commission approves the training curricula and oversee the implementation.
Peaceful picketing, protests and association are provided for in the 2010 constitution. In such
cases, the training of the police must include protection of civilians from sexual and gender
based violence. The failure to issue lawful orders on the use of force and to adequately supervise
the police is in violation of the Constitution and international law. Even so, the police can not be
left to hold themselves accountable.13 The Independent Policing Oversight Authority must
undertake their oversight role impartially for justice to prevail on the victims of post election
violence. This commission must be more proactive than being reactive in the quest for justice.

Political Accountability

10
“CJ – justice system needs overhaul’, Daily Nation, 30 June 2011.
11
The 2010 Constitution of Kenya, Article 160(1)
12
‘AU endorses bid for ICC deferral’, Daily Nation, 1 February 2011.
13
Human Rights Watch, ‘“Turning pebbles”: evading accountability for post-election violence in Kenya’ (Human Rights Watch,
New York, 2011), pp. 39–44

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Every leader must be accountable in their political pronouncements. It is imperative to insight
violence and walk free.14 The judicial system must now take a strong stand, now more than ever,
adjudicate on political violence matters, without bias.15 The perpetrators must be held
accountable and justice served without delay. Political leaders have a sole jurisdiction to ensure
peaceful co-existence even in their quest for political power. The illegal assembly that results
into violent gangs should be condemned fully. Similarly, the government through the Attorney
General and the President must ensure that victims of unfair treatment during political violence
are compensated as ordered by the courts in civil suits. Section 21 of the Government
Proceedings Act suggests courts can take no further action to enforce judgments against the
government. It is the sole responsibility of the government to ensure compliance on
compensation of victims. The failure to pay reflects a blatant refusal to provide justice to post-
election violence victims and demonstrates the extent of impunity in Kenya.16

CONCLUSION

Political parties and the Kenyan citizens must exercise restraint and halt all forms of violence,
hate campaigns and condemn any killings of innocent people in Kenya. In any election, there

14
Susanne D. Mueller, ‘The political economy of Kenya's crisis’, Journal of Eastern African Studies2, 2 (2008), pp. 185–210.
15
Patrick Kiage, ‘Prosecutions: a panacea for Kenya's past atrocities?’ East African Journal of Human Rights and Democracy2, 2
(2004), pp. 104–18.
16
Godfrey M. Musila, ‘Options for transitional justice in Kenya: autonomy and the challenge of external
prescriptions’, International Journal of Transitional Justice3, 3 (2009), p. 452.

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must be winners and losers. Painful as it may, the opposition should call on its supporters to
desist from any form of violence and killings that targets ordinary innocent Kenyans especially
women and children. Furthermore, the rule of law requires, among others, that all aggrieved
parties should address all their grievances through appropriate legal channels in a peaceful
manner. The government of Kenya needs to assure all Kenyans of state protection and those
internally displaced deserve urgent assistance to avoid a humanitarian catastrophe. Similarly,
political leaders must recognize and fully utilize the available conflict resolution mechanisms
and peaceful settlement of disputes.