Insight into the ICC’s Investigation of Election Violence in Kenya

Earlier this month, the International Criminal Court ( ICC) arrived in Kenya to begin investigating the election violence following the December 2008 election. The bloodshed left at least 1,100 dead and over 300,000 persons displaced. Despite the atrociousness of election violence, international judicial bodies rarely get involved in prosecuting it. Instead, they allow local judicial bodies to investigate and prosecute the responsible parties.

On May 15, Lisa Kammerud, research officer at IFES’ F. Clifton White Applied Research Center, sat down with Laura Osio, IFES press officer, to provide an update of the case and talk about what makes the Kenya case different and what are the ramifications of having the ICC investigate election violence.  

LO: Lisa, what is the status of the case right now?

LK: Right now, the International Criminal Court or ICC has agreed to allow their special prosecutor, Luis Moreno-Ocampo, to initiate an investigation. He’s made a visit to Kenya and has begun choosing witnesses and conducting witness interviews which he will use in his case. He announced that he thinks it will take about six to seven months to investigate and he said that he will likely come out with indictments against six or seven people.

LO: Why did the ICC choose to become involved in this case?

LK: Most election violence is between political party actors; it is generally driven by motives related to electoral competition, such as desire to gain access to state resources or perceived inequities in the electoral system.  It is more likely to occur in areas with weak rule of law and is often connected to, underlying social inequities. As such, most election violence does not necessarily rise to the level of crimes against humanity or genocide, which are two of the three types of crimes that fall under the jurisdiction of the ICC.

In Kenya, it is the ethnic nature of the violence, the widespread nature of the violence, and the allegations that the violence was orchestrated (possibly in advance of the disputed election results), that make these crimes different. These characteristics could fall under the definition of crimes against humanity, and therefore create a legitimate situation for the ICC to become involved. And, one of the original inquiry bodies formed to look into the post-election violence in Kenya mentioned specifically that if Kenya did not set up its own special tribunal to prosecute the offenders, the case should be referred to the ICC. It’s now been almost two years since that report was released and no special tribunal has been set up, and that’s why last year the ICC process was activated.

LO: What are the implications of having the ICC investigate this case on election violence in general?

LK: The number one thing this does for election violence in general is to bring it out in the open and out of the shadows. Election violence in general doesn’t always get a lot of international news coverage. It’s an in-country problem, perpetrators act with a lot of impunity, and they know they can generally get away with using violence as a tactic. Changing that perception could make a big difference. The increased visibility of ICC prosecutions could lend weight to advocates against election violence around the world.

The ICC decision to open the investigation clearly puts similar types of election violence in the category of crimes against humanity or genocide, opening the door for future prosecutions of state-supported or ethnically-driven election-related atrocities. This kind of weight and attention to the problem could mark a significant blow to impunity for perpetrators of widespread election violence around the world.  

For example, in many countries, perpetrators of election violence are rarely prosecuted. If you are a political leader, you know this. You know violence is a viable option. But if you suddenly have to worry about international prosecution, you now might have to face consequences.  This changes the game.

However, the vast majority of cases of election violence don’t rise to the level of crimes against humanity or genocide. They are actions between political party supporters, who may be driven by national party leaders with no systematic and organized attack on a certain group of civilians. The violence is on a smaller scale, and it’s much more ad hoc. So, while international media attention may definitely help with nonviolence activists, to really make a dent in future election violence around the world, including Kenya, local action is required. Domestic civil society organizations, election officials,  law enforcement officials – it is these groups who have to make a change and create pressure on political party leaders and other instigators in these countries. Political party leaders themselves can also be great activists for nonviolence. That is why IFES supports capacity building and programs with all of these groups in understanding and reducing election violence. Incentives for peaceful campaigning and sanctions for violence (from intimidation to physical harm) must be created at the local level to reduce violence. Without those local actions you’re not going to reduce election violence in a particular country. We need to look at the benefits of international action along with application of pressure and continued support of domestic efforts against election violence.

LO:  How does this case affect the individual who experienced this election violence?

LK: For individuals in Kenya or in other countries who have experienced election violence, the prosecution of ringleaders does not necessarily affect them directly. There are different kinds of healing and different needs for justice for those who have experienced atrocities.  Trying to redress grievances on a national level inevitably leaves out individual attention.  That is, think of a woman who is now raising her children in a refugee camp because a neighbor killed her husband and took her home. She may want to see the neighbor punished more than she wants to see the person who gave orders down a long chain of command that led to her neighbor’s actions, and she may not feel personal satisfaction or any personal benefit from the prosecution of high-level perpetrators

However, what the prosecution of the individual leaders does do is send a signal that this kind of violence is unacceptable and that there will be consequences for people who mobilize these kind of massive violent actions. The hope is that these prosecutions will help the individual victims by encouraging an increase in domestic measures to prosecute the lower level perpetrators. As I noted before, it’s those domestic measures that we need to support in order to best help the individual victims of election violence. And, in a broader sense, reconciliation between communities is a long hard battle – one needs to work from both sides – looking at higher level perpetrators and lower level perpetrators.

LO: Any other thoughts?

LK: I do think this ICC case is a landmark case and the level of attention that this brings to election violence is incredibly important and incredibly encouraging; however, this international action has to be applied at the local level. Regional bodies and international actors have to use this to create pressure on domestic authorities, domestic groups and domestic institutions to make changes that will reduce election violence locally.