NAIROBI, Kenya — “We hurriedly buried the seven in the shallow grave and fled due to fears of attacks,” explained cattle farmer Joseph Mwangi-Macharia last month as armed police accompanying him went through the motions of unearthing the bodies of his entire family, unwitting victims of the violence that followed Kenya’s disputed December 2007 election.
“This was my lovely wife. They decapitated her when she pleaded that they spare her 18-year-old granddaughter,” said the 52-year old Mwangi-Macharia amid sobs, “Why in God’s name did they have to kill her in this fashion?”
As the seven bodies were interred in Kenya’s Rift Valley province, a flashpoint of some of the deadliest intertribal skirmishes, a moral dilemma was also confronting Kenya’s people and leaders: Would a blanket amnesty for perpetrators of crimes against humanity — such as those who wiped out Macharia’s entire family — be a pragmatic way for the country to get past recent events? Or would it constitute an injustice of epic proportions, given the circumstances that led to the formation of the now two-month-old coalition government?About 1,500 people were killed and 355,000 others displaced from their homes soon after the controversial results of Kenya’s presidential elections were announced in December. Now the country is wrestling with how to deal with that reality while preserving a fragile peace.
“The remote perpetrators, leaders and planners of the type of violations witnessed in Kenya must never be exempted under any circumstances. To do so would be a travesty of justice,” said Maina Kiai, executive director of the Kenya National Human Rights Commission (KNHRC), a government-funded organization.
According to Kenyan police spokesman Eric Kiraithe, 12,000 people are awaiting trial for crimes related to the post-election violence, while another 340 suspects whose identity is known are yet to be apprehended.Georgette Gagnon, Africa program director at Human Rights Watch, says her organization has evidence against leaders of Prime Minister Rail Odinga’s Orange Democratic Movement (ODM) for helping to incite the ethnic violence, and she cautions against playing the amnesty card.The violence was triggered by the widespread perception that Kibaki, an alumnus of the prestigious London School of Economics, stole the election from opposition politician Raila Odinga, an East German-trained mechanical engineer.
According the government-appointed Electoral Commission of Kenya, Kibaki won 4.5 million votes compared to the Odinga’s 4.3 million. But independent observers accused the commission of engaging in fraud to put Kibaki over the top.To stem the spiral of violence that threatened to tear the country asunder, former U.N. Secretary General Kofi Annan attempted to negotiate an acceptable political settlement between the two parties.In April, Kibaki and Odinga settled for a power-sharing arrangement that saw the former grudgingly give up some of his executive power to the latter, who now serves as prime minister in the so-called “grand coalition” government of the country’s two largest rival parties, a first such coalition in Africa.But the power-sharing by the two antagonists has been anything but calm as their respective camps have disagreed on practically everything, including amnesty. The battle for political succession in 2012, when the next polls are scheduled, continues to undermine the cohesiveness of the government.
On the amnesty question, Odinga’s ODM favors an unconditional release of all those suspected of taking part in the violence, while Kibaki’s Party of National Unity (PNU) seeks due process for all suspects.
“Many of those being held were acting as our vigilantes whose only crime was to ensure that a free and fair election took place. But the police force has been biased in the whole issue. Only ODM people were picked up. I have raised the issue with President Kibaki severally and we expect the matter to be resolved expeditiously,” Odinga told a public rally in late May.He added: “I don’t think we should be talking about giving amnesty to those already in custody because they committed no crime. Is it a crime to fight for your democratic rights? Or is it a crime to stand and say that last year’s elections were rigged?”
Henry Kosgey, ODM chairman and the country’s minister for industrialization, also believes genuine reconciliation will only be achieved if the government releases the suspects unconditionally.”There should be no double application of the law,” Kosgey said recently. “Youths that butchered people in the name of defending Kibaki have never been arrested but ours are rotting in the cells.”Meanwhile, others, including world-renowned Kenyan novelist and playwright Ngugi wa Thiong’o, say the reality of election rigging cannot justify the violence committed in retaliation for that crime, and are urging the U.N. to probe the killings.
“I . . . call upon the United Nations to act and investigate the massacres that took place in Kenya as crimes against humanity and let the chips fall where they may,” Thiong’o told the BBC in January.
“For the sake of justice, healing and peace now and in the future I urge all progressive forces not too be so engrossed with the political wrongs of election tampering that they forget the crimes of hate and ethnic cleansing — crimes that led to untimely deaths and displacement of thousands,” he added.Conspicuously, President Kibaki has so far remained above the fray, though his PNU allies are unanimously agreed that nothing should get in the way of justice for the perpetrators.
“Whether the investigations come from the international scene or from our own jurisdiction does not really matter. What is important is that they are done and those found guilty charged accordingly,” said Martha Karua, minister for justice, national cohesion and constitutional affairs.
Deputy Prime Minister Uhuru Kenyatta, who is also in agreement with his fellow party members, has a message for those who committed violence: “You can run for 20 years but the law will still catch up with you,” he said. “Take for instance the case of Felecian Kabuga, the fugitive Rwandan who is still being pursued for having had a role in the genocide that took place in 1994. Those who were involved in crimes against humanity here are undeserving of amnesty.”
Meanwhile, some arguably more independent observers contend that the nation’s political culture must be cleansed of its tradition of deception if Kenya is to move forward.
“Kenya is a country that is built on a shaky foundation of half-truths with regard to its past,” said human rights lawyer Njonjo Mui. “If we are to survive and reinvent ourselves as a nation, we must discover our truth and urgently deploy it to the task of truly setting us free.”
Indeed, the most recent violence is part of a well-established history of interethnic strife, particular at election time. Such clashes also have occurred in 1991, 1996, 2001, and 2006.
Paul Wanyande, a lecturer of political science at the University of Nairobi, traces the roots of election-related violence to former President Daniel Arap Moi, who he says pursued a political strategy of balkanizing the country “into tribal fiefdoms.”
“Unfortunately, when a new administration ascended to power in 2002, it encouraged impunity when it dithered on acting on myriad official reports that had named and shamed individuals linked to past human rights violations,” said Wanyande.
Amnesty International also has added its voice to those who want a full investigation of the post-election abuses and killings.
“Amnesty International wants the African Commission and the Kenya Government to prioritize an investigation into the human rights violations and abuses perpetrated during the post-election period,” said the organization’s Africa program director, Erwin van der Borght. “Impunity for human rights violations will only store up problems for Kenya’s future.
Meanwhile, the International Criminal Court (ICC) is investigating whether to bring charges against those involved in the violence.