Justice on Hold: Impunity in Kenya

Ten years ago, Kenyan leaders wrote a new chapter to its history. In a series of well-publicised meeting, senior government leaders, including the Vice President, declared war on Kenyans supporting democratic reforms. Immediately thereafter, on October 29, 1991, the first houses were torched and the first drops of blood shed in the Rift Valley Province of Kenya. It was the beginning of a campaign of violence that the Kenya Government even to this day - seeks to explain away as ethnic violence.

By 1994, over 1,500 Kenyans were dead and hundreds of thousands homeless. Since then the ghost of violence has regularly visited Kenya. In 1997, this caravan of death set up camp at the coastal region leaving up to a hundred people dead and hundreds of thousands of others homeless. Evidence implicated the complicity of senior politicians and government officials.

The Kenya Human Rights Commission estimates that in the last decade state-sponsored violence has left over 4,000 people dead and nearly 6,000 forced to flee their homes. Another recent survey put the figure of those not yet resettled at 228,744.

Ten years on, the perpetrators of these crimes still freely walk the breadth of the country. Many retain their places of honour in the cabinet. Those senior civil servants who failed to stop the violence have never been disciplined. Security officials who failed defend those attacked still remain at their posts. None sleeps uneasy for fear that the arm of justice may yet catch up with them.

Neither has any of them resigned for their shameful failure. None has yet been called to account. Their victims are either dead or in no position to bring them to justice. Justice is still doled out on their terms. And because they preside over the government, they have defined the limits on who gets punished and who does not.

Impunity has become the by-word for governance in Kenya. From the looting of government corporations to the daylight execution of suspects by the police, the hydra of impunity has been reproducing itself. It now the single most serious threat to what remains of the justice system in Kenya.

This is why the independent Kenya Human Rights Commission has started a campaign to stem this tide of impunity. The Commission's campaign seeks to ensure, among other things, resettlement of victims of state-sponsored terror and individual accountability for human rights violations. The campaign against impunity in Kenya is not isolated from the tide of world events shaping our reality. Few can ignore the impact that the Pinochet case has had on the fight against impunity. That case has set a precedent for what other dictators could face. Pinochet is now a milestone on that road that justice may yet be done even when it takes years. And there are several others. Several countries now have laws facilitating the prosecution of foreigners for international crimes committed abroad.

The world over, boltholes for violators of human rights violators are getting sealed. There are several, well known torturers within the Kenyan police force. Those who bankrolled the orgies of political violence in the Rift Valley and the Coast provinces in Kenya are well known. They have names. They have faces. Their names are on every victim's lips. Naming these violators is one way of blowing off their veil of comfort. Their victims have been named. Just as those who have survived atrocities have had to wear their identities as sufferers so should the perpetrators too wear the identities of shame.

It might be argued that the mere naming of underwriters of death is too feeble a response; a meaningless endeavour. However, history counsels that naming names of violators is a powerful first step in the road to justice. Even governments with the most brazen records of human rights violation will deny their guilt. Impunity only thrives best under the cloaks of anonymity. It is a badge of arrogance only won in the security of the collective.

Yet, it will never be possible in Kenya to bring to justice all the violators of human rights. It has never been possible anywhere in the world. Decades after its nightmare of disappearances, Argentina is yet to bring to account the bulk of its military that authored the terror. Having relived its pain of apartheid, through the Truth and Reconciliation Commission, South Africa hopes it has drawn the line on its past. None of the architects of apartheid has been booked for appointment with justice. Zimbabwe has its own chamber of horrors. The Matabeleland massacres of the Mugabe government have remained shielded from public scrutiny. Mugabe did not begin his orgy of violence with the commercial farmers. Up to 20,000 Zimbabweans are believed to have been killed in the 1980s violence, largely executed by Mugabe's 5 Brigade.

The Kenyan campaign is anchored on the belief that peace and reconciliation can only be anchored by justice. Individual perpetrators must bear personal responsibility for certain rights violations. It is individuals who torture and kill and burn houses. There is now universal jurisdiction for certain violations that constitute international crimes. In deed we are, but a few steps from an international criminal court.

The struggle against impunity in Kenya, as elsewhere, will require a combination of strategies. From court action to sustained political pressure. To be effective it will not be just a campaign restricted to Kenya but one that takes advantage of developments at the international level. That is why it involves an alliance of actors. There are no illusions that it will be easy. The Kenya Government still leans its weight on all institutions of justice. Part of the battle will be institutional reform. Even at the international level there are real difficulties to be overcome. Many of the powerful governments have abetted in the perpetuation of impunity. Trade and national interests all too often have been allowed to trump human rights. We only need to look at the diplomatic dance being played out over Sudan since it started drilling oil.

The fight against impunity will be not bear quick results. But then, no such struggles have been easy.

* Mutuma Ruteere is with the Kenya Human Rights Commission.