Leashing Kenya’s Dogs of War: A Theoretical Assessment

From the standpoint of constitutional law, the ICC’s handling of cases arising from Kenya’s post-electoral violence represents the ceding of judicial autonomy of the state to an ‘exceptional court’. The establishment of a special local tribunal which supplants the supervisory jurisdiction of the High Court and strips the president and attorney general of constitutional powers and immunities has a similar effect. Either way, by failing to proceed with the proposed local tribunal, the Kenyan state has clearly endorsed the ICC option. So what would motivate a state that is for all intents an authoritarian regime,[i] to nudge the ICC into action? This essay reviews some of the key literature on why states judicialize politics or delegate judicial processes to auxiliary courts, interrogates some of the constraints, and provides possible pointers to successful trial in the Kenyan context.

On the one end of the spectrum, Tamir Moustafa’s research on judiciaries in transitional contexts suggest that even though courts are often transformed into spaces for reinforcing the role of legal norms in mediating politics, authoritarian regimes generally use courts for at least five reasons: social control, legitimation, controlling administrative agents, creating credible commitments in the economic sphere and delegation of controversial reforms.[ii] While some of these reasons may not hold in the Kenyan context, some could. For instance, it should not be difficult to imagine how control of administrative agents will be achieved through ‘disciplining’ political elites otherwise untouchable by the political system, hence securing elite cohesion which has been otherwise quite elusive. Similarly punishing the perpetrators of the violence would reinforce commitment to the rule of law; an important ingredient in the stability of property rights and an incentive to economic investments. Mustafa seems to find support from transitional justice scholars such as Bronwyn Anne Leebaw, who argues that law and by extension, courts, can be “utilized to obfuscate and legitimate abuses of power.”[iii] The offshoot of this position is that it is possible to have trials of suspects of the post electoral violence without any corresponding attainment of their transformative intent. Consequently, Kenyan civil society should be alive to this possibility and hence pursue a framework that will achieve substantive justice particularly for victims.

It can be opined in opposition to Mustafa’s contention that Kenya is genuinely keen on meeting its international obligations under both the Rome Statute and the Genocide Convention among others as evidenced by its willingness, albeit unsuccessful, to establish a national mechanism for the trial of post-electoral violence perpetrators. In this sense, Kenya can be said to be committed to ensuring adherence to international criminal law-both customary and positive. Kenya’s attempted judicialization of political differences through an international criminal process facilitates enforcement hence compliance with such norms.[iv]  This argument is however unsupportable in view of the glib manner with which proposals in parliament have been made to the effect that Kenya should withdraw from the Rome Statutes in order to deny the ICC jurisdiction over the Kenyan trials.[v] A country buoyed by aspirations to comply with international standards would be unlikely to propose such actions. Instead, what emerges from this position is that the Kenyan state will not pursue normative compliance if the political and social cost associated with it is, in the short term, onerous. The determination of such cost-benefit balancing is certainly a highly subjective exercise, which in the Kenyan case, is laced with the politics of the post-Kibaki presidential positioning.

The most common justification currently advanced in support of international trials for Kenya’s war crimes suspects are based on the desire to end impunity.[vi] What this means, among other things, is that by punishing perpetrators, retributive justice is effected for the victims, and an increase in likelihood of punishment of political elites will ensure that such crimes do not recur in future. Deterrence theory in criminology, on which this proposition is based, does not anticipate that officials who have already committed human rights violations will be stopped from committing further violations.  Rather, the concern is with how sanctions affect future behaviour of other actors.  Of particular relevance is the finding that beliefs about the likelihood or probability of arrest and punishment in human rights cases have more deterrent effects than increases in the severity of punishment.[vii] Deterrence research also suggests that deterrence is more effective for individuals who have a higher stakes in society,[viii] which would seem to include the kinds of state officials complicit in Kenya’s killings. Katherine Sikkink’s latest research on effects of human rights trials at the domestic level provides quantitative support in favour of the deterrence effect of such trials.[ix] One of her hypothesis was that countries that have held human rights trials will see greater improvements in human rights practices than those countries that have not held human rights trials. Her research, based on a survey of 192 countries, including a good number of African states, suggests that those states with more accumulated years of trials after transition are less repressive than countries with fewer accumulated years of trials, and that truth commissions are associated with improvements in human rights practices, but that trials have a stronger effect than truth commission.[x]  Similarly, Arriaza argues that human rights trials, either domestic or international are both legally and ethically desirable and practically useful in deterring future human rights violations.[xi] Although deterrence and compliance theories may converge at the level of impact, the later looks more at state conduct in the international sphere while the latter considers social transformations engendered at domestic level by targeted criminal proceedings. Both deterrence and compliance theories are further consistent with rational choice thinking on this issue which suggests that state officials and politicians choose impunity and repression because the benefits of such action exceed the cost.[xii]

Realizing deterrence in the Kenyan context will however be problematic if the current collectivization of culpability or victimhood is not brought to a halt through both coercive and persuasive means. By ascribing to ethnic groupings blanket guilt or innocence, it is likely that collective mobilization of communities will mute the deterrent effect of such trials. Instead, the outcomes of such trials will be rationalized away from justice and towards vindictiveness.  Deterrence effect can be nurtured however, if prosecutions are seen to apply across ethnic cleavages so that the sting of victors’ justice is stayed. Nonetheless, this approach may not be practical, especially if aggression preponderates in a particular community more than in others, a most likely scenario in the Kenyan case.

In contrast to deterrence and compliance supporters, realist scholars problematize trials as a vehicle for attaining social cohesion. For instance, some scholars of this persuasion argue that trials or threat thereof could destabilize new democracies and lead to coups. They hold that ‘fragile states’ that undertake such trials could “commit suicide” by dramatizing high profile persons’ arrests and incarcerations. They further argue that the threat of prosecution could cause powerful dictators or insurgents to entrench themselves in power rather than negotiate a transition from authoritarian regimes and/or civil war.[xiii] Snyder and Vinjamuri posit that “Policies and institutions of humanitarian justice are destined to fail” and that “recent international criminal tribunals have utterly failed to deter subsequent abuses in the former Yugoslavia and in Central Africa.”[xiv] In the same line of thinking, Mahmood Mamdani has disputed the efficacy of indicting Sudan’s President Omar Al Bashir on the grounds that such attempts will neither secure stability in Sudan nor halt the blood letting in Darfur. In this regard, he called for the subordination of criminal accountability to the larger pursuit of political reforms.[xv]  While no coup is likely to happen in Kenya, the salience of this theory is obvious, and could explain the cabinet’s decision to shelf the pursuit of a local tribunal. Indeed, many calling for justice to be tempered with reconciliation have argued that the pursuit of justice should not come at the expense of the survival of the state. Proponents of this view have however failed to show how such trials will imperil the Kenyan state. Kenya, unlike Iraq, Sudan, Democratic Republic of Congo or even former Yugoslavia whose examples are utilized by Vinjamuri and Mamdani, has stronger institutions, notably an independent military,  that can cushion the state-assuming that pressure emerging from high profile international criminal trials warrant some form of state intervention. Be this as it may, what is certain is that without the political commitment to the impartial use of such institutions, it is possible for state action to be misjudged as serving partisan interests.

In conclusion, this paper has presented a diverse body of knowledge that could be deployed in the assessment of Kenya’s decision whether or not to try the lead perpetrators of the post electoral violence. Such an assessment, the essay cautions, must be alive to emerging empirical evidence in favour of the deterrence effect of trials over mere truth telling. This essay’s advice is that the success of the Kenyan trials will depend largely on the extent to which ethnic mobilization is checked ex ante. A comprehensive and sophisticated outreach strategy is an important coefficient to this, as is a framework for prosecutions or other forms of transitional justice that is consultative, accountable and above reproach. Kenya’s fractured politics would undoubtedly have been tested most severely by a local tribunal whose proceedings Kenyan and international media would cover extensively. Consequently, a responsive media able to provide balanced and sensitive reporting that would give dignity to the victims of violence and hate will be important. In the end, Mamdani’s assertion that deterrence may result from prosecution only when the same rules apply for all war criminals, regardless of national origin or political orientation,[xvi] is appropriate for the Kenyan cases as in Sudan’s Darfur.

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[i] Kenya was ranked number 103 out of 167 countries in the Democracy Index 2008. This ranking placed it in the hybrid category together with Iraq and Sierra Leone, just a few countries from fully authoritarian regimes. See, Freedom House, Democracy Index 2008 available at http://www.economist.com/media/pf/Democracy_Indec_2008_v3.pdf>.

[ii] Tamir Moustafa and Tom Ginsburg, ‘Introduction: The Functions of Courts in Authoritarian Politics’, in Moustafa & Ginsburg eds., Rule By Law: The Politics of Courts in Authoritarian Regimes (London, Cambridge University Press, 2008) p 1.

[iii] Bronwyn Anne Leebaw, ‘The Irreconcilable Goals of Transitional Justice Human Rights Quarterly Vol. 30, no. 1, 2008, p. 97.

[iv] See e.g., Downs G. W. D. M. Rocke, et al. ‘Is the Good News About Compliance Good News About Cooperation?’ International Organization Vol. 50, no.3,1996, pp. 379-406.

[v] See, Nairobi Chronicle ‘ Kibaki, Raila find Truth Commission an Easy Way Out (July 26, 2009) available at http://nairobichronicle.wordpress.com/2009/07/26/kibaki-raila..> (accessed July 27, 2009).

[vi] See, e.g. Reuters, ‘Most Kenyans Want Violence Suspects Tried by ICC’ available at http://www.alertnet.org/thenewsdesk/LI445650.htm> (accessed July 18, 2009).

[vii] Bueno de Mesquita,, ‘Self-Interest, Equity and Crime Control: A Game Theoretic Analysis of Criminal Decisions’, Criminology  Vol 33.,1995, pp. 483-517.

[viii] See generally, Nagin, D. S., Ed, Criminal Deterrence Research at the Outset of the Twenty-First Century. Crime and Justice: A Review of Research (Chicago, University of Chicago Press, 1998).

[ix] Katheryn Sikkink and Carrie Booth Walling, ‘Errors about Trials: The Emergence and Impact of the Justice Cascade’, Paper to be presented at the Princeton International Relations Faculty Colloquium, March 27, 2006 available online at http://www.princeton.edu.Piirs/callenders/Sikkink%20paper.pdf> accessed July 20,2009).

[x] The author attended a seminar held March 13,2009 at the University of Minnesota Law School, where Professor Sikkink and her colleague, Hunjoon Kim, presented initial findings in a paper titled ‘Do Human Rights Trials Make a Difference?’

[xi] Roht-Arriaza, N., The Pinochet Effect: Transnational Justice in the Age of Human Rights. Philadelphia, PA, University of Pennsylvania Press. Roht-Arriaza, (2005).

[xii] Poe, S. C., N. Tate, et al. (1999). ‘Repression of the Human Right to Personal Integrity Revisited: A Global Cross-National Study Covering the Years 1976-1993.’ International Studies Quarterly Vol. 43 no.2 pp 291-313.

[xiii] Goldsmith, J. L. and S. D. Krasner (2003). ‘The Pitfalls of Idealism’, Daedalus Vol. 132, no.1, pp 47-63.

[xiv] Jack Snyder and Leslie Vinjamuri, ‘Trials and Errors: Principle and Pragmatism in Strategies of International Justice’, International Security Vol. 28 no. 3,Winter 2003/04 pp. 5-44

[xv] Mahmood Mamdani, Beware of Human Rights Fundamentalism (March 26,2009) available at  http://www.pambazuka.org/en/categ ory/features/55143>.

[xvi] Mamdani, ‘Human Rights Fundamentalism’