The International Criminal Court and the Kenyan election
The March 4th 2013 election was a defining moment in Kenya’s post-independence history. This election was significant for several reasons. It was the first election under a progressive constitution which proposed a devolved system, an increase in the number of posts being elected and the strengthening of institutions which caused the undermining of the results of the 2007 elections, such as the judiciary and the electoral commission.
In addition to a progressive constitution, another outcome of the contested 2007 elections was the Kofi Annan mediation process in February 2008, which introduced reforms aimed at addressing the root causes of the 2007 post election violence (PEV). These included land reform, security sector reform, addressing historical injustices and ending a culture of impunity through transitional justice mechanisms such as the International Criminal Court (ICC). The then ICC prosecutor Luis Moreno Ocampo also started to investigate those who bore the greatest responsibility for crimes against humanity during the PEV.
Coincidentally, the winner of presidential election Uhuru Kenyatta and his deputy William Ruto are the ICC's main suspects and their win came as a surprise when it was announced on March 10th 2013 by the Independent Elections and Boundaries and Commission (IEBC) and was later confirmed by the Supreme Court. The ICC investigation of the 2007 elections continues to provoke discussions and debate that are not only relevant to Kenya but also peace-building institutions and supporters of the ICC, such as western countries and the United Nations. The ICC has had several unintended consequences on the Kenyan elections:
First, I contend that the ICC contributed considerably to the Uhuru Kenyatta-led Jubilee coalition win. The two popular coalitions, Raila Odinga’s Coalition for Democracy (CORD) and Kenyatta’s Jubilee party drew largely on ethnicity issues and elite support for the dismissal of the ICC to mobilise voters. I believe the Uhuru and Ruto partnership was first a ‘marriage of convenience' due to both being suspects of the ICC and a protest union to save themselves from the ICC.
Constant reminders from Kofi Annan, United States African envoy Johnnie Carson and some European countries against electing Uhuru and Ruto went unheeded as the duo’s popularity grew with every intervention, judging from the popularity polls conducted at that time. The duo managed to craft a narrative around their role as revolutionaries, defying western imperialists who seek to undermine Kenya’s sovereignty. Using propaganda, they also asked voters to reject Odinga’s CORD coalition since it was part of the imperialist agenda and working in cahoots with the ICC. They thus completely flipped the national consensus against the ICC to suit their ends and it worked. Sadly, though, this Uhuru-Ruto win, as one Kenyan political analyst has observed, has shifted the ICC debate from the powerless victims who suffered displacement and sexual violence to the powerful accused who are now in power. This may render the victims even more vulnerable and in need of support.
The second unintended consequence of the ICC in Kenya is temporary or 'negative peace' in the Rift Valley province to use Johann Galtung’s term. According to Galtung, societies should aspire for positive peace which is the peace that comes when the root causes of violence are addressed as opposed to negative peace which is the peace arising from the absence of overt violent conflict like in the Kenyan case. Since the advent of multiparty democracy, the Rift Valley province has seen ethnic violence instigated by the ruling elite in every election apart from 2002 when they united to get rid of the former dictator Daniel Arap Moi.
In the 1992, 1997 and 2007, the Rift Valley elite instigated violence around contested land issues between Ruto's Kalenjin people and Kenyatta’s Kikuyu people, who are viewed as outsiders. These definitions are based on historical injustices and settlements which date back to the acquisition of fertile highlands by British colonial settlers. Since the land question is still to be resolved in the Rift Valley and William Ruto and Uhuru Kenyatta’s families are beneficiaries to unequal land distribution in Kenya, it is doubtful that peace will prevail in the long-term unless they are genuinely committed to addressing the land question in Kenya.
The third positive unintended consequence of the ICC is the emergence of issue-based politicians at the national and county level outside the three leading coalitions led by Uhuru Kenyatta, Raila Odinga and Musalia Mudavadi. These three coalitions were largely supported by their ethnic groups, although the voting cannot be neatly defined as purely ethnic. We need to appreciate the nuances in voting patterns, for instance, issue-based voting is emerging in cosmopolitan counties like Nairobi and there is a probability that some voters voted based on rational self interest which coincided with a politician from their ethnic group. Outside the leading coalitions, five issue-based candidates with varying track records in the private sector and government emerged, giving Kenyans an alternative issue-based leadership. One of the most consistent candidates was the only female candidate, former Justice Minister Hon. Martha Karua who, despite the lack of significant votes, consistently campaigned on issues such as integrity, refusing to join hasty coalitions which were based on increasing numbers as opposed to a similarity in political ideology. Reminding Kenyans about the victims of the post election violence in 2007, she urged the electorate to end impunity by voting for leaders with integrity.
Finally, the ICC was a deterrent to violence in the 2013 elections. Many politicians, citizens and members of the media acted more responsibly in both public and private spheres by avoiding hate speech and any actions that could be construed to cause tension in a country that is deeply divided along ethnic lines - largely due to the fear of being investigated by the ICC.
*Njoki Wamai  is a Gates Cambridge Scholar from Kenya in Politics and IR. She was a human rights worker during the Kenyan Post Election Violence in 2007/08, focusing on women's experience of the mediation process that followed. Her current research is on the impact of the external intervention processes, such as mediation and the International Criminal Court, on local politics and peace-building. Picture credit: Nuur Khamis.