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Kenya: A Successful, Rapid Response, But Prevention Cannot Be Forgotten
 
 
I. Post-Election Violence
Kenya was swept by a wave of ethnic violence triggered by a disputed presidential election in December 2007. While ethnic clashes have accompanied Kenyan elections in the past, the scale of violence in the early months of 2008 was far worse, prompting Kofi Annan, former UN Secretary General, and part of the mediation efforts in Kenya, to report seeing "gross and systematic human rights abuses of fellow citizens". UN estimates after three months of violence stood at around 1000 people killed and some 260,000 displaced. The severity of the crisis led Bernard Kouchner, French Foreign and European Affairs minister in January 2009 to appeal to the Security Council to react before Kenya plunged into a deadly ethnic conflict, "in the name of the responsibility to protect". 
 
The reaction by the international community to reach a political solution entailed significant pressure and involvement by international and regional bodies and foreign governments in opposition to the violence and violations of human rights. The AU-mandated efforts included a mediation team of eminent Africans led by Kofi Annan, which was able to help bring about a power-sharing solution to the crisis, supported by the UN, the EU, and foreign governments. The rapid and coordinated reaction by the international community has been praised as ‘a model of diplomatic action under the Responsibility to Protect’.
 
In contrast to the crises in Rwanda in 1994 and Darfur in 2003, Desmond Tutu, an Anglican archbishop emeritus of Cape Town and chairman of The Elders said that "[they saw] in Kenya the formation of an international consensus that it is unacceptable to ignore violence of the kind that has occurred (…) or to consider the crisis as purely an internal matter of the state". He explained that the international community has moved far faster in addressing this conflict and mediating with Kenyan leadership than it has in similar situations elsewhere. While much remains to be done, not only to resolve the political deadlock but also to ensure the security of civilians, Desmond Tutu assures that "what we are seeing in Kenya is action on a fundamental principle - the Responsibility to Protect". Click here for Desmond Tutu on Kenya and RtoP.
 
Gareth Evans, author of The Responsibility to Protect Ending Mass Atrocity Crimes Once and For All, has described the violence in Kenya as a “classic R2P” situation. The situation was only labeled an RtoP situation retrospectively, and Don Steinberg, Deputy President of the International Crisis Group has suggested in his Op-ed, Responsibility to Protect in the Real World: From Rwanda to Darfur to Kenya, that at the time, “given the backsliding and buyer’s remorse in the international community regarding the R2P norm, it is perhaps fortunate that no one labeled this as an R2P situation”. However, both Gareth Evans and Don Steinberg point out that the political will of the international community to quell the violence. The Global Centre for the Responsibility to Protect published a policy brief in August 2010 entitled "The Responsibility to Protect and Kenya: Past Successes and Current Challenges" that puts forward the fact that Kenya was indeed an example of an RtoP situation. The document analyses the international community’s, and most specifically the AU's efforts and success in halting the 2007 post-election violence in the country. It concludes, “Kenya revealed how non-coercive tools, such as mediation, can halt atrocities when employed early, with sufficient resources and international support”. The successes of RtoP crisis-solving mechanisms used in Kenya show how the concept can effectively save lives if understood as a larger concept embracing more than just military intervention.  The early response and the outcomes demonstrated how timely preventive and reactive measures under the RtoP toolbox can be implemented to react to crimes reaching the RtoP threshold.  
 
On 31 March 2010 the Pre-Trial Chamber of the International Criminal Court (ICC) approved Prosecutor Luis Moreno-Ocampo’s request to investigate the alleged crimes against humanity that took place in Kenya starting in June 2005 (Kenya’s ratification of the Rome Statute).  The Prosecutor carried out his investigation during two visits from 8-12 May and 1-3 December 2010, and, upon its completion, announced the names of six suspects. The members of the government accused of crimes against humanity included Uhuru Kenyatta, the finance minister and deputy prime minister, William Ruto, a powerful politician in the Rift Valley province, and Francis Muthaura, the head of the civil service. A poll conducted in December 2010 showed that 85% of Kenyans support the prosecution of those responsible for post-election violence. In response to the Court’s announcement, Kenyan MPs voted in favor of the country withdrawing from the Rome Statute at the foundation of the ICC.  While MPs do not have the power to remove Kenya from the Court, this motion  sent a message to the government.   
 
Since the end of the crisis, others have pointed to the responsibility of the international community to maintain pressure and commitment in the rebuilding phase to prevent any re-occurrence of violence. Human Rights Watch in its March 2008 report Ballots to Bullets: Organized Political Violence and Kenya's Crisis of Governance, called on the duty of foreign governments, neighbor government and institutions, to “keep all diplomatic mechanisms on the table and to provide all necessary assistance in order to ensure that the agreement to share power works and delivers on promises to address long-running human rights violations”. This report underlined actions for the international community to take, including provide financial support for compensation funds and technical support to police forces, and to any and all bodies set up during and after the mediation, including the Independent Review Committee on the elections, the Truth, Justice and Reconciliation Commission, and the Commission of Inquiry into the violence.

Moreover, the August 4 Global Centre for the Responsibility to Protect policy brief depicts "lingering risks" that may hamper the 2012 elections from unfolding peacefully and fuel conflict and social unrest. In particular, the report identified the following areas of concern. First, persisting ethnic tensions in the Rift Valley may be manipulated during electoral campaigns. Second, the government has not initiated any reform of the police forces so far, which reinforces the belief that the government is unlikely to ensure security during the elections. Third, the ICC investigations into the 2007 violence may create fear of prosecution; and lastly, many rebel groups at the origins of the 2007 violence still receive political and popular support.
 
The report thus calls for high levels of scrutiny from international actors and the Kenyan government. Finally, the brief recommends that “[t]he international community (…) support [the Kenyan government’s] efforts, including security sector reform and domestic prosecutions in order to improve the state’s capacity to prevent and protect”.
 
While the RtoP norm calls for rapid responses to a crisis involving imminent or actual mass atrocities through a wide range of measures, RtoP emphasizes the need for states and the international community to actively prevent these crimes from ever occurring. The international community should be commended for its mediation efforts, but should continue to support Kenya during the post-crisis period. As the deadline approaches, it is essential that the international community assume its full responsibility to protect by assessing and addressing the root causes of the violence in 2007.
 
More Information on the Crisis in Kenya:
 
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