Victims’ perspectives on the legacy of the International Criminal Court in Kenya
If international justice interventions and institutions do not understand the local context and take account of the needs of victims, it will remain justice denied. This is the opinion of Njoki Wamai of the International Relations Department at the United States International University-Africa.
Iso Lomso fellow Wamai, who is in her last residency at STIAS, was presenting an update on her project which looks at the legacy of the International Criminal Court (ICC) in Kenya. This is a collaborative project involving other scholars which Wamai hopes will culminate in a book and conference next year. (See: https://stias.ac.za/2021/10/unpacking-the-international-criminal-court-intervention-in-kenya-fellows-seminar-by-njoki-wamai/)
To open her presentation, she focused in on the current 2024 Generation-Z anti-corruption and pro-democracy protests in Kenya involving Kenyan youth holding the political class to account using hashtags #RejectFinanceBill and #RutoMustGo. “I’ve been looking at what has happened in Kenya in the last three months. Protests from Gen Z have brought back the conversations about the ICC at a critical juncture in Kenyan politics. The protests have brought back the stalled debates on justice in Kenya after the 2007 post-election violence and accountability for alleged crimes against humanity committed by elites against the wananchi (citizens) post 2007,” she explained. “The Gen Z, now transformed to Generation Zote (everyone), have invited the ICC to reopen the suspended case against the current president William Ruto. Disgruntled Kenyan youth have been using protest and social media campaigns to hold the political elites accountable for budgeted corruption, increased government spending without service delivery, corruption, nepotism, police brutality and increasing authoritarianism by the president William Ruto.”
Showing a video of the Gen-Z activists, Wamai noted that the protests have brought back energy for accountability while demanding the return of the ICC. Wamai argued that the Gen Z are also claiming justice from the ICC as victims of Ruto’s regime. This is due to their collective suffering after the killing of youth protestors by police in addition to their everyday suffering from unemployment and high cost of living. Kenyan youth have inspired protests across Africa demonstrating the power of social media and the disgruntled youth demographic in Africa. In response over 100 have been killed and many have been abducted and disappeared.
“International justice and its attendant ICC was waning, but it seems to be back in vogue because of the atrocities being committed in Gaza, Ukraine and Bangladesh,” she added.
Wamai explained that Kenya has had a long relationship with the ICC which was established in 2002 after the Rome Statute was adopted in 1998. In 2005 Kenya ratified the Rome Statute incorporating the ICC statues into its national legislation through the 2008 International Crimes Act. After the 2007 elections in Kenya, rigging allegations triggered violence which resulted in 1133 deaths and displacement of more than 600 000 people leading to the intervention of the ICC. In 2010 the ICC Office of the Prosecutor started investigations for alleged crimes against humanity committed during the post-election violence. Current President William Ruto and his co-accused former president Uhuru Kenyatta and journalist Joshua Sang were charged for crimes against humanity in 2013, however, the charges were dropped, and the case suspended in 2016 following lack of cooperation from the state and witness interference and claims of bribery.
From the beginning the ICC faced issues of legitimacy. A shortcoming is that a number of powerful countries have not joined or not ratified the Rome Statute – including the USA, India, China and Russia.
Wamai also noted that the ICC’s current chief prosecutor – British lawyer Karim Ahmad Kahn who was appointed to the ICC in 2021, was originally Ruto’s defence lawyer.
Victim’s justice needs vs. ICC ideas of justice
But Wamai emphasised that her research shows one major shortcoming of the ICC is the lack of a focus on victims in the ICC’s mechanics.
“The ICC’s western liberal ideals of justice consider the Kenyan case successful in creating a culture of individual accountability since the powerful political elites involved were charged individually despite the outcome of the cases. While the cases have provided a performative understanding of the ICC justice theatre, collective and individual accountability for victims of the violence as promised by the ICC has not been achieved,” she explained.
“Victims are still not the centrepiece in the ICC despite the rhetoric. It’s retributive justice which is meant to punish the accused. And the victims are the missing link.”
Wamai explored the tensions between international justice and contextual perspectives of justice among victims of violence in Kenya discussing what accountability means from local perspectives of (in)justice from the victims who navigate their everyday lives in a context of impunity and poverty from cyclic violence and displacement.
“The ICC forecloses local ideas of justice and victims in favour of Western liberal ideas informed by the enlightenment period and the post-war Nuremberg Trials.”
She explained that most victims of the 2007 electoral violence cases are often low-income earners who reside in rural areas. “Based on the legacies of Nuremberg trials, only the elite perpetrators are charged, and the victims are often unable to go back to the land where some of the local perpetrators may still live. They also easily sign up to testify at the ICC because they believe they will be compensated immediately based on a restorative justice ethic- but the Court focus is on punishment of the accused if found guilty. Compensation from the ICC can only occur after cases have been won by the Court against the accused. What happens to victims when cases are suspended or dismissed like in Kenya?”
“Ultimately, the Kenyan cases highlight the continuing challenges related to international criminal law and the politics of international criminal justice in Africa which leaves complex and incomplete relationships between the victims and perpetrators and the victims and the ICC,” she continued.
“What kind of legacy does this kind of justice leave us?” she asked. “There is universalism of the Western world’s ideas on justice and there is need to understand local contextual justice. Everybody can’t deal with justice like in the Western world and their need for openness.” Increased authoritarianism and violence between states shows the ICC is still relevant despite its misgivings.
The politics of transitional justice in Kenya
She also emphasised the need for more understanding of the politics of transitional justice and how nation building and reconciliation are often prioritised after violence without justice and compensation in post-colonial contexts, noting that many African post-independence leaders focused on peace and reconciliation “creating the narrative that justice from their colonial masters would undermine peace and development”.
“Despite many mass atrocities committed by the British in Kenya – Jomo Kenyatta (Kenya’s first president) told people to move on – to forget the past and deal with the future in the interests of nation building”.
“Similarly, South Africa’s transitional justice process which was led by the Late Desmond Tutu hasn’t dealt with justice and reparations adequately. They chose to focus only on truth and reconciliation. What does justice mean in these postcolonial and post-authoritarian contexts? We need to see justice as part of nation building.”
And while she sees the energy for change from Gen-Z protestors as hugely significant, she emphasised that more is needed to move from victims of an authoritarian regime to agents of their destiny. “If they can’t get organised to participate in party politics it will just be another Arab Spring. These conversations are happening in Kenya.”
Coming back to the question of delivery or denial of justice, Wamai emphasised the need for a victim centred justice and closed with a quote from American philosopher, presidential candidate and theologian Cornel West – “Never forget that justice is what love looks like in public.”
Michelle Galloway: Part-time media officer at STIAS
Photograph: SCPS Photography