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Kenya’s Past as Prologue

 | 
Christian Thibon
, 
Marie-Aude Fouéré
, 
Mildred Ndeda
, 
et al.

Kenyan Elections: The ICC, God and the 2013 Kenyan General Elections

Hervé Maupeu

Note de l’auteur

This article was originally published in French under the title “La CPI, Dieu et les élections kényanes de 2013: De la pentecôtisation de la politique à une démocratie autoritaire” DOI: 10.3917/afco.247.0033 (Afrique contemporaine, n° 247, Élections Kenya, © De Boeck Supérieurs.a., 2013 1re édition, Fond Jean-Pâques 4, B-1348 Louvain-la-Neuve).

Texte intégral

  • 1 I would like to thank Stephen Brown, Yvan Droz and Marie-Aude Fouéré for proofreading my article.

1The 2013 Kenya elections were post-crisis elections. They were held in an institutional framework closely linked to compromises reached to end the 2008 post-election violence that caused more than a thousand deaths and displaced several hundreds of thousands.1

2In 2008, international actors negotiated with stakeholders a set of peace solutions very characteristic of the 2000s. The ‘peacebuilding’ industry has a long history but it has essentially been constituted in the context of the 1990s, marked by the changing practices of war (the multiplication of civil wars and the reduction of inter-state conflict) and a great wave of democratisation. As an end to the crisis, proponents of ‘peacebuilding’ proposed the promotion of democratic practices (political and economic liberalisation). However, it soon became apparent that the rash organisation of elections was accompanied by conditions of freedom. Since then, in the 2000s, new ‘peacebuilding’ strategies of “institutionalization before liberalization” have been imposed (Paris, 2004). They were designed to strengthen institutions before the holding elections. In the case of Kenya, a new constitution adopted in 2010 sought to balance the relationship between the various authorities and to ensure the independence of certain structures (particularly of the Electoral Commission) so as to guarantee free elections. In this reform package, a component was aimed at ending the culture of impunity of elites. Thus, the International Criminal Court (ICC) came in to indict several political leaders.

  • 2 During the election campaign, journalists coined the term ‘UhuRuto’ to talk about this ticket in a (...)

3The ICC intervention led two leaders of opposing communities in 2008 to join forces in the 2013 elections. Uhuru Kenyatta and William Ruto formed a ticket and were respectively elected as President and Deputy President of Kenya. Certainly the ICC emerged as the statue of an omnipresent commander throughout the electoral process. How did these indictments, by an international court, become a major factor in this electoral campaign? Has the UhuRuto2 election revealed some negative effects of ‘peacebuilding?’ Is the ICC only a statue of a paper commander?

4Studying the ICC and the 2013 elections allows for the chronicling of the legalisation of the Kenyan political life at a crucial time when members of the top brass are for the first time threatened by credible prosecution. They are deploying strategies to escape this guillotine, which will have lasting effects on the credibility of the judiciary and more generally on the quality of democratisation currently underway.

5To adapt the institutional framework, politicians engaged in intensified justification and legitimation, which led to change in the political culture. Thus, the leaders who won the electoral joust are those who had God on their side by creating what we will call the dynamic of “pentecostalisation of political life”.

Impunity of elites and ethnicisation

6‘Peacebuilding’ programmes designed to end a conflict consist of a series of more or less important measures. From the point of view of the Kenyan elite, the most critical component of the programme to end the 2008 crisis was the establishment of a national unity government enabling power sharing. Many political scientists have pointed out the dangers of these arrangements that give leeway to politicians involved in the tensions and whose ambitions are not genuinely democratic (Sriram and Zahar, 2009). In fact, these procedures tend to weaken if not to condemn the dynamics of transitional justice. At the least, these two formulas obey a contradictory logic: when the leaders of the various factions involved in the conflict participate in the same government, they agree to temporarily waive the prosecution of their colleagues. We then find ourselves in a situation where the political cost of the criminal charge of these leaders would be too high. In this type of government, the various factions protect each other. The attitude of the Kenyan political elite towards the ICC action illustrates this institutional logic. “The big fish will not fry themselves” as explained by Brown & Sriram (2012). These two political scientists trace the steps and the tactics of these leaders to escape criminal liability for their involvement in the 2008 post-election violence. They explain that Kenyan MPs repeatedly rejected the creation of a hybrid court to try their leaders. These parliamentary debates revealed very different views on the subject but all converging to the organisation of the impunity of their elite, all factions fearing being implicated in this process.

  • 3 The Standard, July 17, 2012, Peter Opiyo, “Why Kenya-AU plot against ICC may stall”.
  • 4 Daily Nation, December 1, 2012, Bernard Namunane, “AG wants Uhuru, Muthaura cases moved to Arusha”.

7Because Kenyan politicians did not want a hybrid tribunal, the ICC took over. From then on, the Kibaki government engaged in intense diplomatic activity to ensure that the court at The Hague is divested. It tried to get a resolution of the African Union asking that the trial of Kenyans be entrusted to the African Court.3 With the failure of this strategy, the Attorney General asked the ICC to transfer these trials to the East African Court of Justice, even though this court has no jurisdiction to deal with these crimes.4 At the same time, the Kenyan elite tried to empty the ICC proceedings of their substance by putting pressure on the witnesses (pressure on their families or assassinating key figures). The state itself forwarded the documents requested by the Court with delay if not reluctantly. Collaboration between these institutions was difficult. Following the failure of diplomatic tactics, the issue moved to the national level. And to protect themselves from prosecution, Kenyan leaders called on God for help.

  • 5 In the context of the end of the 2008 crisis, international actors sponsored several investigative (...)

8At the end of 2010, when the ICC announced that Uhuru Kenyatta and William Ruto were among the leaders the Waki Report5 advised to be judged, their political career seemed compromised. To regain control, these politicians appealed to public opinion. They played the power of the people against that of the judges. They relied on popular legitimacy to counter the legitimacy of the rule of law. In this way, they made the election of 4 March a referendum on the ICC. This winning electoral strategy was expressed in an effective populism that used and amplified the pentecostalisation of politics. This political camp managed to sell two unlikely ideas. It convinced many Kenyans (if not most) of the criminal irresponsibility of their leaders in the 2008 post-election violence and the need for an electoral agreement between the two main ethnic communities, the Kalenjin and the Kikuyu, which were violently opposed in the previous elections.

9By cleverly using the ICC charge, Uhuru Kenyatta and William Ruto became heroes of their respective ethnic groups (but not that of their running mate) which helped unify their communities during the election time. The populism of UhuRuto was aimed at diverting attention from the actual causes of their charges and the root causes of the 2008 violence in order to focus on arguments that unified disparate electorates and to forget the old antagonisms that opposed them.

10There is no Kalenjin electorate or a set of homogeneous Kikuyu voters ‘naturally’ available. These two identities are very divided. The Kalenjin thrive on an “overlapping identity” (Médard, 2008). The Kalenjin, like the Luhya, developed their identity mainly after World War II by uniting neighboring ethnicities which still remain strong today. Within the latter, divides and divisions operate according to clans and sometimes generational systems. Claire Médard shows that, depending on circumstances and needs, the Kalenjin wear or claim one or the other of their identities. Therefore, tensions between the different groups that make up the Kalenjin can be strong. It is equally difficult to unify the Kikuyu who are divided along region, gender (male/ female tensions are stronger than among the Kalenjin), generations and especially social classes.

11However, the Kalenjin like the Kikuyu have developed strong ethnic nationalisms that are constantly revised, which facilitates their mobilisation during elections, more so since each of these two communities, at each general election, possesses leaders who can reach the highest state level or can put pressure on the new head of state (if the Kalenjin have not proposed candidates in 2002, 2007 and 2013, they appear every time as kingmakers).

12To gather together these electorates, those charged before the ICC employed the conspiracy theory which, we know, is one of the great classics of populism. Two social actors were presented for public prosecution: on the one hand, Raila Odinga and more generally the Luo, his original ethnic group and on the other hand, Westerners.

13During the 2007 elections, the vast majority of Kalenjin voted for Raila and his popularity was undeniable. The divorce has been gradual. It first concerned the Kalenjin elite. In the ‘Grand Coalition’ government, Ruto got the Ministry he wanted, of agriculture. But in 2010, he campaigned against the constitutional text proposed for referendum while Raila called for a vote in favour of it. Since 2009 and especially in 2011, Kalenjin MPs opposed Raila on the management of the Mau Forest. This vast range is one of the main water towers of Kenya and deforestation continues, led by more or less legitimate occupants of the land, which threatens water supply for entire regions. Raila was accused of managing this case in favour of respect for the law and the environment at the expense of people, particularly the Kalenjin who live there. In fact, the Mau Forest has, for more than two decades, been one of the areas of recurring tensions in the Rift Valley. There we find major dynamics inherited from President Moi’s era: ethnic cleansing, illegal distribution of public land under high-level state patronage (which leaves many Kalenjin frustrated), not to mention the tensions among Kalenjin sub-groups. In this context, Kalenjin MPs chose to unite against a foreign leader, in as much as Ruto, involved in a corruption case in areas related to his ministry, was forced to resign at the request of Raila… so they said. Gradually, most of the Kalenjin MPs rallied behind Ruto who appeared more than ever as the leader of the Rift Valley.

  • 6 Daily Nation, July 27, 2012, Oliver Mathenge, “Uhuru and Ruto under ICC watch over rules”, p. 10.

14After the indictment of Ruto by the ICC, the Kalenjin elite took on the people and accused Raila of being behind this dirty trick. The speakers tugged at the heartstrings, of the feeling of persecution of the Kalenjin, crystallised since President Moi stepped down in 2002. According to Gabrielle Lynch (2011), the revival of Kalenjin nationalism was built on the deep sense of injustice that these people felt. In this context, the discourses are virulent and attacks against the Luo are hateful. In late July 2012, the ICC warned Uhuru Kenyatta and William Ruto that the court would verify that they do not engage in hate speech or that they do not incite violence.6

15Westerners were also denounced as agents of the charge against the two leaders. They supported Raila’s candidacy for the presidency and manipulated international justice so that their protégé was elected. The ICC was described as a neo-colonial justice that to date had only prosecuted African leaders and sought to ensure the domination of the North over the South. Thus, the ICC was an infringement on the country’s sovereignty. It would be a serious threat to national security and would imply the resistance of all against this attack. This rhetoric also appeals to the past and a reinterpretation of the history of the Kalenjin and the Kikuyu. Thus, Ruto’s fight echoes that of Koitalel Samoei, the Nandi leader who resisted against the British in the early twentieth century and Uhuru’s struggle reminiscent of his father’s, Jomo Kenyatta who was jailed after an infamous rigged trial (1952-1953). More than ever, the story of the history (histories) of Kenya is a critical political issue.

16The figure of Koitalel Samoei remains very popular today because vernacular radio stations, particularly Kass FM, have produced many emissions on his history. The contemporary Kalenjin nationalism uses his heroism and resistance to colonialism as one of its main references. The state itself has, in recent years, emphasised his role by building a national mausoleum on the site of his imprisonment (Simatei, 2010: 427). Ruto particularly claims this legacy more so as his own father was called Daniel Cheruiyot Samoei and that Ruto himself is commonly called William Samoei Ruto.

  • 7 This made journalists sarcastic: Otieno Otieno, “ICC case is turning Uhuru into the new Dedan Kimat (...)

17Uhuru Kenyatta has no issue when he tugs on heartstrings with the Kapenguria trial that condemned his father on the basis of rigged testimonies. In fact, this trial saved Jomo Kenyatta’s career which was greatly threatened by an elite even more radical than him. After his imprisonment in the north of the country in which time Uhuru was conceived, Jomo Kenyatta became the undisputed leader of the country and the father of the nation. Today, the British perfidy is more in the mind especially as the media reminds regularly the difficulties of former Mau Mau to get compensation, through legal means, for their suffering. But the reference to Jomo is actually quite discreet as the discourse mostly likens the fate of UhuRuto that of Dedan Kimathi, the Mau Mau leader who died tragically in the hands of the British. In fact, this figure speaks more to young people, primarily to appeal to them. Who would have thought that the heir, born with a silver spoon in his mouth would one day be considered the modern-day Kimathi? Kimathi, until then, was the symbol of the excluded, the underclass and especially the peasants demanding for land.7

18Thus, victimisation accounts and the reference to a mythical past help build Uhuru and Ruto as heroes, figures rising from the legend and destined to guide their people. Through these heroes, people can dream of a collective prosperous and prestigious destiny in times of crisis and doubt. UhuRuto offer stories, different in each community, which connect a mythical past to an equally unlikely future, but of better days. They offer them a future of modernity: to become the “digital generation” as opposed to other communities which remain in the “analog generation”, according to the analogy constantly hammered by William Ruto. This propaganda works especially during elections, ordinarily perceived as a time for change.

19The victimisation trial and UhuRuto’s glorification strategy derive their efficacy from the religious register that these politicians employ to articulate and mobilise.

The ICC and the pentecostalisation of the political life

  • 8 Daily Nation, April 7, 2012, “MPs milking the ICC cases dry”; “Amounts range from KShs. 20, 000 to (...)

20In early 2011, these two politicians traversed the country and engaged in “prayer meetings”. They were accompanied by prelates who led prayers and many parliamentarians who launched the most violent attacks and thus prepared the prospect of an Uhuru-Ruto ticket. Gradually, most parliamentarians of the ethnic groups of the two leaders began to attend these “prayer meeting-cum-rally” sessions. One could not be seen as pro-ICC if one wished to be re-elected. In addition, they were paid for their travel expenses.8 Leaders of other ethnic groups participated actively when they opposed Raila. In 2011, these elected members came mainly from the KKK ethnic gathering (Kikuyu-Kalenjin-Kamba) and in 2012, with the G7 Alliance, the front opened notably to include Luhya through Eugene Wamalwa (Saboti MP) and Kisii through Omingo Magara (South Mugirango MP).

  • 9 ‘Emeritus’ in the sense that they are no longer active.
  • 10 The Catholic Church and its Justice and Peace Commission are very involved in the discussions aimed (...)
  • 11 Daily Nation, April 14, 2012, “Clerics on the spot over role in tribal groupings”.

21In 2012, the ceremonies launching the election campaign for Kenyatta and Ruto were also within a religious framework. The meeting of the Deputy Prime Minister, Uhuru Kenyatta in which he announced his candidacy took place in Limuru, at the NCCK premises (The National Council of Churches of Kenya, the main federation of Protestant churches). Two Bishops Emeritus,9 Peter Njenga, an Anglican and Lawi Imathiu, a Methodist called for the unity of Gema people (Gikuyu, Embu, Meru) against the “false accusations of internal and external enemies”. The meeting of William Ruto was at the Catholic Pastoral Centre and Bishop Korir welcomed the guests himself.10 Many pastors spoke including Rev. Murupus who stated that the Kalenjin never premeditated the 2008 violence and that the responsibility of the conflict rested entirely on Raila Odinga who rejected the election results.11

  • 12 “The Kenya election and militarisation of ‘peace’,” The East African, March 9-15, 2013.

22This intertwining of politics and religion is seen by a columnist, Keguro Macharia, as “a reconsolidation of Christianity as a state religion”.12 In fact, the prayer meetings are part of a larger dynamic of the pentecostalisation of political and social life.

  • 13 Uhuru Kenyatta is Catholic and William Ruto is a member of the Africa Inland Church, like President (...)

23Throughout the twentieth century, and today more than ever, Christianity remains the cornerstone of the Kenyan national identity. In a context of strong ethnic polarisation, this Christian identity may occasionally exceed the other divisions. However, this takes place within narrow limits because the churches have consistently participated in the crystallisation of ethnic groups and for a decade, they have been tribalised in that their clergy frequently slip into communitarian positions (Droz and Maupeu, 2013). During the election campaign, UhuRuto employed a particular approach to Christianity. They endeavoured to pentecostalise the national Christian ideology. Kenya, like other African countries, experienced the Pentecostal wave, and today, nearly a third of Kenyans are Pentecostals (Barrett et al., 2001). But since the 30s, the Protestant movement has been influenced by the Pentecostal theology and rituals because of the extraordinary success of the East African Revival Fellowship (Peterson, 2012). UhuRuto especially employed this ideology and Pentecostal structures even though they are not from these churches.13 In doing so politicians partner with real big men endowed with systems of patronage and consistent communication. In contrast, the historical churches have leaders but no big men. Power is often decentralised with a wide autonomy of parishes on a diocesan and national level; the churches’ social services are bureaucratic and do not participate in patronage.

  • 14 The mother of William Ruto thinks her son’s favorite verse is Jeremiah 33: 3: “Call to me and I wil (...)

24UhuRuto take most from Pentecostalism theology, which focuses on the action of the Holy Spirit, the privilege of being “saved”, God’s forgiveness when one repents and true justice is God’s which esteems that all good comes from God.14 Pentecostal rituals also involve prayer meetings in the form of confessions and of long testimonies. Emotion is always heightened and ideological messages become more persuasive. This simplistic approach to Christianity enables one to denounce before God those guilty of the misfortunes of Kenyans (Raila Odinga and Westerners) and to pray for peace in the country.

25In fact, the communication policy of those accused at the ICC turned presidential candidates was in the skill of time management. During the fall of 2012, when the campaign officially began with different primary elections (governors, senators, Members of Parliament), Jubilee abandoned attacks, which helped to unify the Kikuyu and the Kalenjin. They then became the pilgrims of peace promising to end the tensions in the communities that had experienced post-election violence in 2008. This was to appeal beyond the Central Province and the Rift Valley. Meanwhile, Raila promised that if he were elected, he would repatriate the trial of those accused by the ICC. But his efforts made him appear a hypocrite if not a liar. As for the Westerners, they were clearly biased against the candidature of the accused and their actions seemed a confirmation of the plot denounced by Jubilee and were attacks on Kenyan sovereignty. Their warnings revived patriotism and validated the victim position of their leaders.

26The prayer meetings also unified the Kalenjin who are very divided by the multiple ethnicities that make up this group. The Kikuyu also overcame the social divides that break them up and the underclass, particularly Mungiki, who find themselves politically voiceless. By being victims, the leaders temporarily buried the hatchet in their communities, but none of them has renounced the ideology of autochthony justifying violence in the Rift Valley in previous election cycles, and in particular in 2008 (Boas and Dunn, 2013).

  • 15 Jubilee is the electoral alliance that united Uhuru Kenyatta and William Ruto.

27With prayer meetings, UhuRuto invented a new political language that combined prophetism and redemption. The Kalenjin like the Kikuyu have cultures of prophetism (Anderson and Johnson, 1995). In times of uncertainty and insecurity, spiritual and other prophet figures, emerge to explain the new issues, rules and principles to observe in order to cope. These prophetisms can easily be expressed through the Pentecostal register (Droz, 1999). In this case, the political leaders tapped into the Pentecostal and evangelical stock references, the idea of “Born-Again” political redemption. This form of speech was attractive because by asking God to save the unjustly accused leaders, citizens are also saved, which answers to their material, social and moral insecurity. But as Ruth Marshall (2009: 10) points out, these “political spiritualities” correspond to a system of Pentecostal practices that focus on the work that the individual must do on himself. The Born-Again conversion implies an exemplary personal conduct, if not ascetic, which corresponds to a country or to individual morality (rather than public morality) and an increasingly demanding social control (especially on women). UhuRuto were able to explain that the country’s success depends on the morality of individuals and therefore their ability to succeed economically. The state has no other function other than to provide a framework in which the will of God, and individuals acting in God’s eyes, can be expressed. The Jubilee15 electoral campaign appeared as prophetism or the redemption of leaders and their people that should lead to prosperity if not a golden age, which prosperity evangelists have repeatedly promised since the beginning of the great evangelical wave.

  • 16 Sunday Nation, February 3, 2013, p. 22, Emeka-Makaya Gekara, “Clergy differ on stand towards electi (...)
  • 17 Daily Nation, November, 11, 2012, Lukoye Atwoli, “Involvement of religious groups in education”; Da (...)

28Politicians controlled these political spiritualities so well that churches did not have a clear message. The Catholic Church disseminated a statement in November 2012 calling for a vote against candidates lacking integrity. Some interpreted this message as aimed at Uhuru’s candidature but at the local level, the Catholic clergy in Central Province clearly campaigned for Jubilee. The campaign elicited very different positions according to the religious leaders.16 The clergy seemed more concerned about lobbying for the new Education Bill as opposed to the General Elections.17 Indeed, it was devastated in the 2007 election campaign where religious actors had fueled the hatred that contributed to the post-election violence. During the 2010 constitutional referendum, the churches spearheaded opposition to this text that Kenyans adopted by a large majority.

  • 18 The ‘historical’ churches are former mission churches, which are neither Pentecostal nor Evangelica (...)
  • 19 Ironically, the clergy was until the late 1990s heavily influenced by the Pentecostal theology and (...)
  • 20 Daily Nation, February 25, 2013, Dave Opiyo & Justus Wanga, “Kenyans pray for peaceful elections”; (...)

29Ironically, the ‘historical’18 churches were left outside an election campaign based on the Christian register. The message of the old mission churches was inaudible because the formulation of arguments was on a Pentecostal mode, which is not that of the ‘historical’19 churches. Even CORD used this mode of communication. Raila Odinga relied heavily upon Prophet David Owuor and his organisation. Thus, one of the highlights of the campaign was the large “national repentance” meeting at Uhuru Park, at the end of February 2013 led by this religious leader on behalf of CORD. On this occasion, all political leaders spoke of repentance in the country after the 2008 post-election violence. They announced that the elections would take place without recourse to force regardless of the outcome.20

30So everyone repented and hoped that the March elections would enable the turning of the page. Does this mean that Kenyans renounce all forms of transitional justice?

An impossible transitional justice?

  • 21 In transitional justice, the distinction is frequently made in criminal justice procedures (trials (...)

31The election of the Kenyatta-Ruto ticket to the presidency weakens further the ongoing procedures of transitional justice.21 Henceforth, the Kenyan state is fiercely opposed to the ICC, which is about to judge their leaders. As for reconciliation procedures, they do not seem to interest many anymore. In fact, the time for justice and commissions is not the same as for electoral democracy, causing malfunctions that politicians exploit skillfully.

  • 22 His name was mentioned in the organisation of the massacre of hundreds of Somali in Wagalla in 1984
  • 23 Saturday Nation, May 4, 2013, p. 13, “Spare President the truth, it is too hard to handle”.
  • 24 The East African, May 4-10, 2013, p. 16.

32As part of the 2008 peace negotiations, a Truth, Justice and Reconciliation Commission was established. It is in line with many commissions tasked with the study of episodes of political violence (such as the Akiwumi Commission and the Mutua Commission for example), which go unheeded. The TJRC was immediately marked by deep divisions among the commissioners, especially among those who wanted the resignation of their chairman Bethuel Kiplagat22 and others. Its mandate was diluted because it investigated violations of human rights committed by the authorities from 1963 to 28 February 2008. Established in 2009, it was to deliver its report within two years, but following several reports, the work did not end until after the 2013 elections, making its interest rather limited: after elections, one must first address the frustrations caused by the campaign, by the organisation of the process and by the official results which did not satisfy all Kenyans. Consequently, all columnists raged against the commission. Even before knowing its findings, they all felt that it had not fulfilled its role. “In the spirit of moving on, the TJRC should just edit its report to two pages and send it to the Museum to give Kenyans a chance to embrace peace under the Jubilee government”, said Kwamchetsi Makokha.23 Even NGO human rights representatives, like L. Muthoni Wanyeki, thought “Dialogue? Reconciliation? Forget that stuff, move on”.24 The TJRC report was published in May. It accuses many leaders and in particular asks for charges to be pressed against more than thirty elected leaders. The media has relayed this information correctly but so far, the judiciary has not taken over and the politicians seem to have moved on. Other commissions have to continue this work of unmasking political violence and abuses. A commission on land was established at the end of 2013, but it is likely to suffer the same fate as previous reports on this subject (Ndung’u Report, Njonjo Land Report).

  • 25 “Ruto Explains Kiambaa – Wikileaks”, The Star, March 7,2011; see also The Standard, January 8, 2013 (...)
  • 26 Andrew Cawthorne, “Jackson Kibor denies masterminding violence”, www.kalenjin.net

33In fact, these commissions are now rejected by majority of the Kikuyu and Kalenjin political elite because they are intent on imposing their own understanding of the history of the country and in particular, the crisis of 2008. This revisionism is important when it comes to politically bringing closer people who have been opposed for decades. This exercise is dangerous because it is the same leaders who spoke yesterday of irreconcilable differences and yet today are competing for close collaboration. They must explain why the contentions of yesterday are no longer relevant in areas where blood has been shed several times. Thus, William Ruto argues that the Kiambaa massacre (January 2008) in which thirty people died in a fire at a church besieged by Kalenjin gangs is the result of an accident: “the cause of the incident was an accidental kitchen fire during preparations for lunch”.25 Therefore, the most famous 2008 post-election violence killing is not the work of young Kalenjin. As such, the ODM leaders boycotted the official funeral of the victims of Kiambaa in 2011 as well as the inauguration of the commemorative plaques. They refused a memorialisation that denounced Kalenjin abuses forgetting the massacres perpetrated by the other side, the Kikuyu. In the same vein, many Kalenjin leaders have refused to testify before the TJRC but they are justified in the media (often ethnic). Thus, Jackson Kibor, a businessman who, according to the Waki Report (2008) funded some armed groups, prefers to explain himself to journalists from Reuters and on the Kalenjin.net site rather than respond to the summons of the TJRC.26

  • 27 P. Mayoyo & D. Opiyo, “Kenya asks UN to end trial of Uhuru, Ruto”, Daily Nation, May 9, 2013, p. 1  (...)

34The TJRC seems to have lost its social efficiency since it presented its work after the elections. Similarly, the ICC trial would have had a very different effect if it had occurred before the elections. Henceforth, the Kenyan government is working to remove the President and the Deputy President from the ICC trap. In April 2013, Kenya asked the UN Security Council for the repatriation of these trials to a Kenyan criminal court. The defendants’ lawyers asked for the opportunity to attend the court sessions from Kenya through internet communications. William Ruto even wished to be tried in absentia. At the beginning of May 2013, Kenya informed the Security Council that it wished to end the trial of Uhuru Kenyatta, William Ruto and Joshua Sang because it threatens the stability of the entire region whereas voters had already decided on the situation.27

35During the election campaign, UhuRuto gave good political communications addressing different messages depending on their audience: to Western governments, they promised that they would respect the ICC proceedings and to the people, they explained that the citizen is the true judge of the 2008 events, in the name of the principles of democracy and sovereignty that international actors cannot deny. Therefore, when the people elected UhuRuto, representatives of the international community found themselves destitute: “they took us by the balls” said a diplomat. In fact, peacekeeping sociologists had explained these dynamics well. If these procedures of structuring peace are considered as a process of ongoing negotiations between local elites and international actors, the latter are constantly losing their influence as time gradually passes after the crisis. The ‘footprint’ of the peace solution adapted to resolve the conflict gradually disappears and the conflicting interests of the ‘engineers of peace’ and local elites are increasingly apparent (Zürcheret al., 2013). In the case of Kenya, politicians are trying to uphold the democratic logic at the expense of the legal logic and their power play can succeed in a country where the rule of law is somewhat fragile.

36Thus, political elites are trying hard to assert their interests at the expense of principles that an unsure international community tries to assert. This can cause tensions in the field of international relations.

Towards a postcolonial diplomacy?

37The ICC proceedings are never ‘simply’ national affairs. They bring into play the international community and its responsibility, particularly in protecting persecuted people. In the case of Kenya, its intervention was in the engagement of representatives of the international community in the negotiations to end the 2008 crisis. Consequently, the UhuRuto trial becomes a highly international affair since these politicians were elected to head their state. And Kenyans are aware that solutions must be found on an international level.

  • 28 For a theorisationon the ambiguities of these programmes, see Roland Marchal (2003).

38To counter their indictment by an international court, UhuRuto or at least their supporters in the Kenyan state have used weapons of diplomacy since 2011 and they continue to do so after the 2013 elections, which can have far-reaching effects. First, the election of two politicians indicted by the ICC to head the state will lead to a shift in Kenya’s relations with other actors in international relations. Some analysts predict the development of a post-colonial diplomacy consolidating ties between East African countries with a common distancing from Westerners to focus on relations with the emerging powers, mainly Asian, which better respect the sovereignty of African actors. On their part, Westerners find themselves entangled in the contradictions of the peacebuilding programme they sponsored during the 200828 crisis and after the 2013 elections they seem to have adopted a wait-and-see policy.

  • 29 Daily Nation, October 12, 2012, Bernard Namunane, “Annan warns over ICC suspects’ bids”.
  • 30 Daily Nation, February 8, 2013, “US restates stance on Uhuru and Ruto”. The American position was w (...)
  • 31 Saturday Nation, February 9, 2013, “More embassies join push against Hague suspects”.
  • 32 See for example, Tim Wanyonyi & Patrick Mayoyo, “Kenya diplomatic isolation might lead to less fina (...)

39The international actors involved in the resolution of the 2008 crisis clearly expressed their opposition to the candidature of Uhuru Kenyatta and William Ruto in the presidential race. In October 2012, Kofi Annan, while passing through Nairobi to follow up on the crisis solution programme under the guidance of the Panel of Eminent African Personalities, said that the election of the two accused by the ICC would affect Kenya’s relations with other countries.29 In early February 2013, the U.S. Assistant Secretary of State Johnnie Carson reminds of the American position that the election to a country’s presidency of one accused by the ICC could be received negatively by the United States.30 Britain and France announced that in such an eventuality, their embassies would have “minimum contacts” with this leader.31 Newspapers interviewed many academics who have written about the risks of diplomatic isolation, on Western aid, which could dry up, and the foreign trade that could suffer as a result of this.32

40In this context, the Uhuru Kenyatta programme announced significant shifts in the Kenyan foreign policy that would rely less on relations with the West and would look further to the east (‘shift East’), to emerging powers, the BRICS and especially India and China. It was not a break in the country’s foreign policy since the regime of Mwai Kibaki had already implemented these principles. Since the adoption of Kenya Vision 2030, economic development relies on major projects and infrastructure construction, mostly in PPP (Public Private Partnerships), which usually lead to work with Asian companies. So far, this Asian tropism was justified by economic contingencies now, it also applies for ideological reasons, or at the least in the name of a conception of sovereignty.

  • 33 Daily Nation, March 14, 2013, “Botswana minister in U-turn on Uhuru Ban”, Daily Nation, March 11, 2 (...)
  • 34 The Standard, April 10, 2013, Ally Jamah, “Museveni hails Kenyans for rejecting ICC ‘blackmail’”.

41After the election of Uhuru Kenyatta, Western countries praised the peaceful nature of the elections and they, for the most part, waited on the decision of the Supreme Court to hail the elected representatives. At first, Botswana announced that it would not receive Uhuru then relented.33 Other African countries have hardly commented that the new elected officials are indicted by the ICC, with one notable exception, that of Museveni. During the inauguration ceremony of Uhuru Kenyatta, Yoweri Museveni, representing the countries of the East African Community, congratulated Kenyans on rejecting the “blackmail” of the ICC. In addition, he accused the Court of arrogance and ignorance. It does not solve the problems of the 2007-2008 post-election violence: “an external and legalistic process cannot address those events. Events of this nature first and foremost need an ideological solution by discerning why they happened”.34

  • 35 He would have helped finance his electoral campaign, according to journalists of The East African ( (...)
  • 36 For several years, he was within the scope of the ICC charges. There was a time when Rwanda was str (...)
  • 37 The East African, May 25-31, 2013, “Kenya’s quest to end cases at The Hague enters”.
  • 38 Saturday Nation, May 4, 2013, Isaac Ongiri, “British PM invites Uhuru for visit”. Daily Nation, May (...)
  • 39 Daily Nation, June 7, 2013, “UK says sorry for Mau Mau crimes”.

42This position is a serious support to the new leadership team of Kenya. It surprised some analysts because Museveni has closer links to Raila Odinga.35 Henceforth, he presents himself as a privileged partner, to help the newly elected leaders to lift the ICC obstacle. He in this way appears as the Godfather if not the leader of East Africa, which enables him to make up for the challenge he faces in Uganda, in his own camp. Kenyans, on their part, rely on the support of neighboring countries to avoid the diplomatic isolation that Western governments promised them. In fact, East African governments are relatively distrustful of the ICC system. We know that Rwandans exploited international justice and were sometimes opposed to the ICTR in Arusha (Guichaoua, 2011). Burundians have cleverly manipulated international peacebuilding plans and the policies of transitional justice (Curtis, 2012). Tanzanians voted for a repatriation of the ICC trial to East Africa (particularly to Arusha). And Ugandans see the ICC as a tool to fight against the LRA but certainly not as a court to try the rulers. In fact, Kenya might benefit from an informal front of distrust of the ICC from the Horn of Africa to the African Great Lakes via Sudan. All regional powers will support a Kenya which they appreciate is substantially weakened in the international field. No country in the region has an interest in Kenya being destabilised and ostracised by other nations. However, the East African leaders will not engage in a lively anti-Western offensive. These former guerrilla leaders are no longer in their ideological phase. They are before all pragmatic like Rwanda letting Bosco Ntagandago to The Hague (April 2013)36 while in the Security Council supporting Kenya’s initiatives against the ICC. During the month of May 2013, the East African states joined forces to use the ceremonies of the 50th anniversary of the African Union to get a nearly unanimous vote to condemn the ICC prosecution against the accused Kenyans and to ask for the repatriation of these trials to national courts.37 The new Cabinet Secretary for Foreign Affairs of Kenya, Ms. Amina Mohamed is primarily responsible for renewing links with the West because foreign trade is first with these countries, much more than with Asia. This high-flying diplomat will mobilise her administration, still very able (but undermined by numerous cases of corruption), to reassure its partners. The task should not be insurmountable as Westerners know that the region needs a properly ruled Kenya. Thus, at the beginning of May 2013, Britain sought to normalise its relations with Kenya inviting Uhuru Kenyatta to London to attend a meeting on Somalia.38 In the month of June 2013, Britain defused the situation further by asking for forgiveness for the crimes committed during the Mau Mau crisis.39 In early July, the French invited President Kenyatta to go to Paris for the France-Africa summit in December.

  • 40 Sunday Nation, April 14, 2013, pp. 26-27, “Kenya’s New assertive pan-African foreign policy”,; The (...)
  • 41 The Standard, April 10, 2013, “Uhuru Kenyatta – Inauguration: My pledge to Kenyans, International c (...)

43Should we think like Peter Kagwanja40 that the Kenyan foreign policy is currently experiencing a large-scale shift? It signals a more nationalistic diplomacy and one more involved in the construction of East Africa. It perceives a firm pan-African vision that would lead to a more just and equitable world order. In light of these principles, we must understand President Kenyatta’s statement at his inauguration and that is probably referring to the ICC, “no one country or group of countries should have control or monopoly on international institutions or interpretation of treaties”.41 In fact, it is likely that saving the skin of the President and Deputy President has become the priority of Kenyan diplomacy and this sword of Damocles will weigh on other areas of the Ministry of Foreign Affairs. It is evident that the Kenyan government is an instrument in the service of an elite ruler: a power structure of neo-patrimonial type as political scientists like J.-F. Médard say. It is also a bureaucracy and an existing structure by its international recognition. Will its exploitation by UhuRuto change the diplomatic DNA of Kenya? Probably not because the West does not want a crisis with Kenya, even if it means swallowing a bitter pill to save appearances.

Conclusion

  • 42 According to polls conducted during the electoral campaign, only 40% of Kenyans believe that Kenyat (...)

44Transitional justice is usually studied by jurists or experts of international relations. They focus on the operation and interaction between institutions. In addition to these classic approaches, our study favoured a political sociology approach emphasising the importance of political culture and the play of identities to understand how Kenyans comprehend procedures of transitional justice. Thus, we showed that the two charged at the ICC, during the 2012-2013 electoral campaign, skillfully re-crystallised the identity of their respective communities by diffusing discourses of victimisation and formulating a re-reading of the history of their community making them heroes. This classic strategy worked particularly well as they used a religious register, of a neo-Pentecostal type, giving great strength to their message of repentance and self-justification. They created a new virginity and the impunity of Kenyan elites was thus renewed.42 In doing so, they also deflected the political culture of the country by developing a true pentecostalisation of the political life.

45The ICC charges of the two main leaders forced the political elite not to use violence during the electoral campaign. However, it does not mean that the next elections will be peaceful. Certainly, the institutional framework has changed and some factors of electoral violence are now dulled (without disappearing). With the new constitution of 2010, which establishes a high degree of decentralisation, the presidential election is less decisive. The famous rule of “winner takes all” taints less the political game since losers at the national level can control entire regions and thus can get access to the State. It is also necessary that decentralisationis properly implemented. The 2013 election brought to the top a duo consisting of a President who is rather hostile to the new constitution and a Deputy President who has always advocated for a strong decentralisation (of the majimbo type, according to the Kenyan political jargon). The fate of local government depends heavily on the quality of their competitive association.

46Another institutional factor that contributed to peace during the 2013 elections: the existence of a Supreme Court, a judicial recourse accepted by the political class to resolve electoral disputes. However, its decision in 2013 that validated the presidential election was highly contested and undermined its legitimacy. The electoral commission worked reasonably well throughout the campaign but its work has been particularly criticised since the election. If this commission is not drastically reformed, the opposition will be convinced that it is impossible to truly win the presidential election owing to the manipulations of the incumbent.

47More generally, the institutional system today seems particularly unstable. Since the elections, the various authorities are seeking to clarify their roles and relationships among themselves: the National Assembly is affirmed with respect to the Senate, Governors define their position in relation to the provincial administration and to the Members of Parliament, the judiciary consolidates with difficulty its newly acquired independence and the dual presidency is trying to impose its centrality. Thus, the institutional framework is fixed, which creates a situation of great political instability. To take the distinction of F.G. Bailey, at a time when the “normative rules” are not clear, the “pragmatic rules” are affirmed and seek to impose their interpretation of the norm.

48Since the 2013 elections, the Kenyan state has gone to some trouble to ensure absolute impunity of its leaders. All institutions must comply with this categorical imperative. This creates the ideal conditions for establishing, in a lasting way, an authoritarian democracy.

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Notes

1 I would like to thank Stephen Brown, Yvan Droz and Marie-Aude Fouéré for proofreading my article.

2 During the election campaign, journalists coined the term ‘UhuRuto’ to talk about this ticket in a well-oiled communication.

3 The Standard, July 17, 2012, Peter Opiyo, “Why Kenya-AU plot against ICC may stall”.

4 Daily Nation, December 1, 2012, Bernard Namunane, “AG wants Uhuru, Muthaura cases moved to Arusha”.

5 In the context of the end of the 2008 crisis, international actors sponsored several investigative reports of which the Waki Report was tasked in particular with specifying leaders’ responsibilities in the post-election violence.

6 Daily Nation, July 27, 2012, Oliver Mathenge, “Uhuru and Ruto under ICC watch over rules”, p. 10.

7 This made journalists sarcastic: Otieno Otieno, “ICC case is turning Uhuru into the new Dedan Kimathi”. Sunday Nation, February 17, 2013.

8 Daily Nation, April 7, 2012, “MPs milking the ICC cases dry”; “Amounts range from KShs. 20, 000 to KShs. 100, 000 depending on your seniority and influence”.

9 ‘Emeritus’ in the sense that they are no longer active.

10 The Catholic Church and its Justice and Peace Commission are very involved in the discussions aimed at regulating tensions between communities in Uasin Gishu and the arrival of Bishop Korir was very surprising.

11 Daily Nation, April 14, 2012, “Clerics on the spot over role in tribal groupings”.

12 “The Kenya election and militarisation of ‘peace’,” The East African, March 9-15, 2013.

13 Uhuru Kenyatta is Catholic and William Ruto is a member of the Africa Inland Church, like President Moi. Their fling with Pentecostal structures and identity does not prevent them from featuring in and using their membership in these old churches of missionary origin.

14 The mother of William Ruto thinks her son’s favorite verse is Jeremiah 33: 3: “Call to me and I will answer you and tell you great and unsearchable things that you do not know”. The Standard, April 10, 2013, Titus Too, “Ruto’s mother attributes son’s leadership fame to fear of God”.

15 Jubilee is the electoral alliance that united Uhuru Kenyatta and William Ruto.

16 Sunday Nation, February 3, 2013, p. 22, Emeka-Makaya Gekara, “Clergy differ on stand towards elections”.

17 Daily Nation, November, 11, 2012, Lukoye Atwoli, “Involvement of religious groups in education”; Daily Nation, January 1, 2013, “Don’t assent to Education Bill, churches urge Kibaki”. This new law would increase state control on Christian schools benefitting from public funds.

18 The ‘historical’ churches are former mission churches, which are neither Pentecostal nor Evangelical.

19 Ironically, the clergy was until the late 1990s heavily influenced by the Pentecostal theology and expression that it was often part of the East African Revival (Peterson, 2012). But the generation currently in operation in these churches is no longer involved in this movement.

20 Daily Nation, February 25, 2013, Dave Opiyo & Justus Wanga, “Kenyans pray for peaceful elections”; Daily Nation, February 26, 2013,Paul Ogemba, “Behind the scenes in run-up to prayers”.

21 In transitional justice, the distinction is frequently made in criminal justice procedures (trials to prosecute those responsible for crimes related to the political crisis) from other non-judicial mechanisms aimed at addressing the violence in the time of crisis (Brown & Sriram, 2012: 246, n.3).

22 His name was mentioned in the organisation of the massacre of hundreds of Somali in Wagalla in 1984.

23 Saturday Nation, May 4, 2013, p. 13, “Spare President the truth, it is too hard to handle”.

24 The East African, May 4-10, 2013, p. 16.

25 “Ruto Explains Kiambaa – Wikileaks”, The Star, March 7,2011; see also The Standard, January 8, 2013, “ICC gets new witnesses on Kiambaa killings”.

26 Andrew Cawthorne, “Jackson Kibor denies masterminding violence”, www.kalenjin.net

27 P. Mayoyo & D. Opiyo, “Kenya asks UN to end trial of Uhuru, Ruto”, Daily Nation, May 9, 2013, p. 1 & 6.

28 For a theorisationon the ambiguities of these programmes, see Roland Marchal (2003).

29 Daily Nation, October 12, 2012, Bernard Namunane, “Annan warns over ICC suspects’ bids”.

30 Daily Nation, February 8, 2013, “US restates stance on Uhuru and Ruto”. The American position was weakened by statements by Republican leaders who are fundamentally opposed to the ICC system. Interventions by Jendayi Frazer (in charge of African affairs from 2005 to 2009) were widely re-run in the Kenyan media, e.g., J. Frazer, “ICC has fallen from high ideals of global justice, accountability”, Sunday Nation, March 17, 2013.

31 Saturday Nation, February 9, 2013, “More embassies join push against Hague suspects”.

32 See for example, Tim Wanyonyi & Patrick Mayoyo, “Kenya diplomatic isolation might lead to less financial aid and trade,” Daily Nation, March 11, 2013, p. 10.

33 Daily Nation, March 14, 2013, “Botswana minister in U-turn on Uhuru Ban”, Daily Nation, March 11, 2013, “West yet to speak on election winners”; Sunday Nation, March 10, 2013, “Bitter-sweet victory for Uhuru and Ruto”.

34 The Standard, April 10, 2013, Ally Jamah, “Museveni hails Kenyans for rejecting ICC ‘blackmail’”.

35 He would have helped finance his electoral campaign, according to journalists of The East African ( “Uhuru banks on friends in East Africa for support”, The East African, April 6-12, 2013).

36 For several years, he was within the scope of the ICC charges. There was a time when Rwanda was stripped of aid by several Western countries because of its involvement in the tensions in North Kivu.

37 The East African, May 25-31, 2013, “Kenya’s quest to end cases at The Hague enters”.

38 Saturday Nation, May 4, 2013, Isaac Ongiri, “British PM invites Uhuru for visit”. Daily Nation, May 12, 2013, Peter Kagwanja, “Why UK ate humble pie after Uhuru win”.

39 Daily Nation, June 7, 2013, “UK says sorry for Mau Mau crimes”.

40 Sunday Nation, April 14, 2013, pp. 26-27, “Kenya’s New assertive pan-African foreign policy”,; The East African, April 13-19, 2013, p .11, “Inside Kenyatta’s emerging, assertive policy in East Africa”, .

41 The Standard, April 10, 2013, “Uhuru Kenyatta – Inauguration: My pledge to Kenyans, International community”, p. 15.

42 According to polls conducted during the electoral campaign, only 40% of Kenyans believe that Kenyatta and Ruto must be prosecuted by the ICC (Long, Kanyinga, Ferree & Gibson, 2013: 147).

Auteur

Lecturer in Political Science, Université de Pau et des Pays de l’Adour (UPPA); Director, Centre for Studies and Research on East African Countries (CREPAO), France

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