Dear readers – the following article is written by Thomas Obel Hansen, who holds a PhD in transitional justice and is an Assistant Professor with the United States International University in Nairobi, Kenya.  The views and opinions expressed here do not necessarily reflect the views and opinions of the Open Society Justice Initiative.

Ruti Teitel, a leading transitional justice scholar, once noted, “In the public imagination, transitional justice is commonly linked with punishment and the trials of ancient regimes.” While it is true that transitional justice in Kenya has predominantly been debated as a question of criminal justice, however, the accountability process does not target members of an ancient regime but rather members of a political class still in power. These factors are important to keep in mind when analyzing how the International Criminal Court (ICC) process influences other mechanisms of transitional justice in the country.

Following the ICC prosecutor’s naming of the six Kenyan suspects in December 2010, the government launched a number of initiatives with the common purpose of bringing to an end the ICC process. One such move concerned diplomatic efforts aimed at making the United Nations Security Council use its mandate under Article 16 of the Rome Statute to order a (temporary) stop to the ICC proceedings.

In support of the deferral request, government officials stated that because “some of the individuals mentioned by the ICC prosecutor are among the front runner presidential candidates and the civil servants mentioned are in office and charged with responsibilities for peace and security,” the ICC process poses “a real and present danger to the exercise of government and the management of peace and security in the country.”

Paradoxically, the government at the same time declared that a domestic accountability process was under way under the auspices of a reformed judiciary, thus implying that criminal justice for the post-election violence would indeed be laudable.

The existence of a domestic accountability process is in principle irrelevant for a UN Security Council deferral, but it would pose a relevant argument in connection to another attempt made by the government to end the ICC process, namely the admissibility challenge filed earlier this year.

Though this admissibility challenge has now been rejected by the Appeals Chamber, the government’s action has ramifications for the reform agenda, which should be seen as a crucial pillar of transitional justice in Kenya.

As a consequence of the perceived linkage to ending the ICC process, political leaders opposed to ICC intervention – many of them known supporters of William Ruto and Uhuru Kenyatta, who are both ICC suspects – have advocated strongly for the implementation of judicial reforms. Ephraim Maina, the Central Kenya MPs Association chairman, stated the intentions clearly: “We must now concentrate on enacting laws that will lead to creation of a tenable judicial mechanism and ensure it is in place by September when the Six return to The Hague. With this, the country will be able to argue for a deferral and transfer of the case home.”

While of course not the sole consequence of their connection to the ICC process, judicial reforms in Kenya have in fact seen some important progress recently, including the adoption of some crucial bills and the appointment of a new chief justice, Willy Mutunga, who is generally seen as a “pro-reformer.”

Somewhat ironically, the opposition to accountability principles has thus turned out to be a driver of the selfsame principles.

Yet, ICC intervention – or perhaps more precisely, the controversy that has surrounded the process – seems in other ways to constitute an obstacle to the reform process initiated with the adoption of a new constitution in August last year. As noted by the Panel of Eminent African Personalities, which was instrumental in finding a solution to the political crisis surrounding the post-election violence and continues to monitor the reform process in Kenya, “the personalisation and politicisation of the ICC process had obscured dialogue on reforms that would prevent future violence and the need to find justice for the victims, including IDPs”.

To put it in simpler terms, the drama surrounding the ICC process has had the unfortunate consequence that an increasingly divided political leadership has all too often neglected other important aspects of transitional justice in Kenya, including devolution, security sector reforms, land reforms, and other structural change envisaged in the 2010 constitution.

Similarly, the ICC’s intervention seems to have had mixed consequences for the level of attention paid to the victims of the post-election violence.

Despite the fact that international law requires states to provide victims of gross human rights violations with various forms of reparation, including compensation, the Kenyan government has failed to offer compensation to the victims of the violence. Additionally, many victims struggle to get the medical care they need and a significant proportion of those displaced as a result of the violence continue to live in dire conditions in camps for internally displaced.

In some ways, the ICC has proven an obstacle for remedying this situation. By targeting prominent politicians and other powerful individuals, the ICC has contributed to escalating the divide between political factions, seemingly making it increasingly difficult to find solutions to problems such as displacement. Furthermore, commenting on the ICC process, the media and others have tended to focus on the perpetrator side as opposed to the victim side.

Notwithstanding that this problem is also reflected in the discourses surrounding the ongoing confirmation hearings, as discussed in an earlier article , the hearings may eventually turn out to promote a broader debate about victims and their rights. The hearings may ultimately increase awareness in the general public concerning the needs and rights of victims because the Rome Statute allows victims, through their legal representative to participate in the hearings, to make statements and question witnesses. This in turn may add pressure on the government to fulfill its international obligations.

Another mechanism of transitional justice that may benefit victims and society in general concerns the Truth, Justice and Reconciliation Commission (TJRC). The commission was established in the wake of the 2008 violence, but it is mandated to investigate and address human rights abuses and other forms of injustices taking place ever since independence.

However, the TJRC has experienced significant challenges fulfilling its mandate, a problem that again seems related to the overwhelming focus on the ICC process and the political context in which transitional justice in Kenya unfolds.

Evident, for example, from problems of obtaining the necessary funding and the appointment of a chairperson with a dubious record, there has been limited support at the level of the political leadership for creating a strong and independent commission. Although some of these challenges have now been remedied and the commission has finally commenced its hearings, there are widespread concerns that the TJRC may fail to deliver.

That the TJRC is facing such problems might seem incongruous given that key elements of the government have on various occasions argued that Kenya should follow the example of South Africa by prioritizing reconciliation over retribution; that the TJRC should be a substitute, not a supplement, to a criminal justice process. Whereas debates about the most appropriate form of justice can of course be legitimate, it seems as if some decision-makers’ support for the TJRC was inspired by other narrow interests, such as shielding from justice members of the selfsame political elites.

With this in mind, it seems doubtful whether the ICC process will generate increased acceptance of the TJRC, at least at the level of the political leadership.

Some of the same considerations are relevant when attempting to understand why a local accountability process is yet to be established.

As the Kenyan parliament rejected a number of proposed bills to establish a local tribunal, many MPs instead called for “The Hague Route,” explaining that their opposition to a national accountability process was grounded in due process concerns. Surely, such concerns could have sounded legitimate if not for the fact that the parliament – with only one MP opposing – subsequently passed a motion calling for the government to withdraw from the Rome Statute.

This illustrates how the debate about accountability, to some extent captured by political elites, has been framed around a perceived (but misconceived) dichotomy between local and international justice; as a matter of international or national trials, rather than both.

With the failure of the admissibility challenge and the commencement of the confirmation hearings, it seems increasingly clear that it will be difficult, if not impossible, to secure political commitment for putting in place a framework for national trials. In other words, the progress of international justice seems to have consequences for the prospects of national justice, but not necessarily positive ones as many had hoped.

This takes us back to where we started. Transitional justice in Kenya does not target an “ancient regime” but rather takes place in a context where there has arguably been no fundamental political transition. This presents a serious, sometimes insurmountable, challenge to establishing credible mechanisms at the national level. Turned around, some of the tools that have nonetheless been utilized may prove decisive for promoting that such a transition eventually takes place in the country. The ICC process is important in this regard because it is harder for Kenya’s political elites to manipulate its operations due to its external nature, but also because it may serve important objectives on its own. However, is also vital – and vital to understand – that the court shapes other transitional justice mechanisms, albeit admittedly not always in a positive manner.