When the Government of Kenya announced on Thursday July 30, its decision to refer post-elections violence cases to national courts, critics decried the measure as upholding impunity. Ordinary justice, they say, is inadequate in handling extraordinary crimes.
What is needed is special justice, either in the form of a special tribunal or, better still, before the International Criminal Court in The Hague.
It is easy to understand these compassionate ‘right-thinking’ advocates. A pre-condition that appears to have paved the way towards genocide in Rwanda was immunity from prosecution for those who had perpetrated violence against the Tutsi minority since, at least, the time of independence in 1962.
As a consequence of this culture of impunity, when orders to eliminate Tutsi were propagated after the death of President Habyarimana, those who joined the genocide against the Tutsi acted without fear that their crimes would result in punishment.
Thus, the failure to prosecute serious crimes is considered as bad if not worse than the crime itself. Impunity breeds violence.
Yet, while the motto “crimes must not go unpunished” is embraced evenly by political opponents in Kenya, the mere commitment to justice offers little guidance into the manner or the timing for implementing this ideal of accountability, which entails not only the protection and vindication of rights, but also the prevention and punishment of wrongs.
Of course, criminal trials can play an important role in the aftermath of violence. They express public denunciation of criminal behaviour.
They can provide a direct form of accountability for perpetrators and ensure a measure of justice for victims.
Criminal trials can also contribute to greater public confidence in the State’s ability and willingness to enforce the rule of law.
In the context of Kenya, prosecutions can help to de-legitimize extremist elements, ensure their removal from the national political process and contribute to deterrence.
However, achieving and balancing the various objectives of criminal justice is less straightforward then it might first appear.
There are a host of other constraints that societies emerging from violence and anarchy have to take into account.
For example, in 1994, Rwandan law was not designed to deal with the challenges faced when massive numbers of people – survivors and perpetrators of crimes – have to live together again, side by side, in an extremely poor country.
Some adaptations to the real-world circumstances of Rwanda were needed.
Thus, in assessing policy decisions designed to achieve justice for post-elections violence crimes in Kenya, it is important not to uphold them to unrealistic ideals.
Justice is not achieved when rigid adherence to human rights principles results in political collapse.
It is important to consider that the choices of accountability mechanisms in Kenya are taking place in a context of a power-sharing agreement, and that of chief concern to the parties at the negotiating table in the aftermath of the disputed 27 December 2007 elections, was the imperative to stop the wave of violence and lawlessness raging around the country.
Moreover, it is no secret that the debate over accountability mechanisms in Kenya is taking place within a much polarised political environment, as demonstrated by the failure to pass the Special Tribunal Bill in February this year.
Just as peace is an outcome of an agreement between the Party of National Unity and the Orange Democratic Movement, a political consensus on the nature and scope of criminal justice for the violence is critical for its success.
Accountability in the Kenyan case calls for political and legal pragmatism that is adapted to the context, and respond to the needs, of Kenyans.
Advocates of criminal justice in Kenya have great faith in the power of the law and legal institutions – such as the ICC - to resolve the accountability question.
The ultimate test, however, ought to be whether Kenyans stand to benefit when the “peace and justice” agenda is defined according to local values, norms and prevailing circumstances, and thus put into the hands of domestic actors, international actors merely lending support to the domestic process, or when “peace and justice” is more or less a uniform script falling to a greater degree to the discretionary authority of international agencies and actors such as the United Nations or the International Criminal Court.
If the Rwandan experiment has anything to offer, it is that, in the aftermath of mass violence, domestic processes, however imperfect, offer the best option for rebuilding a nation.
Kenyans have within themselves the resources to deal with post-election violence crimes in a manner that is realistic and informed by the realities of the situation within the country.
Prosecutions through regular courts thus offer one solution to the demands for accountability.