Following President Mwai Kibaki's reelection in late December 2007, amid allegations of widespread electoral fraud by both sides, Kenya erupted in a wave of political and civil violence. Protests by supporters of opposition candidate Raila Odinga combined with targeted ethnic violence to cause over 1,000 deaths and hundreds of thousands of displacements. Like many African states, Kenya has experienced periodic violence since gaining independence in 1963. Yet this episode was the most frightening--and one of the largest--in Kenyan history. Many feared it was the start of a frightening new chapter, a reminder of the many issues that remained unresolved in independent Kenya.
As part of the power sharing and reconciliation agreement negotiated by former UN Secretary General Kofi Annan in the wake of the violence, the process of writing a new constitution was restarted. On August 4, 2010, Kenyans turned out to vote overwhelmingly in favor of the new constitution. Although the referendum generated controversy and unease throughout the summer, including a grenade attack at a "No" rally in Nairobi's Uhuru Park, the new constitution gained the support of more than two-thirds of voters and was signed into law in late August.
In an effort to address some of the recurring problems that have haunted Kenya for decades, the new constitution aimed to transfer power from the presidency, create a new two-tiered parliamentary structure, make significant changes to the judiciary, and implement a bill of rights. Heralded by domestic and international leaders alike as the birth of a "second republic," the new constitution was supposed to be a fresh start for Kenya, a new chance at a more equal and democratic country.
But significant problems remain. Kenya has yet to deal with the involvement of high-ranking government officials in the 2007-2008 post-election violence. Corruption within the government is among the worst in Africa, and regional instability threatens to throw the country into turmoil again. If Kenya is to emerge from the shock of the 2007-2008 violence stronger, freer, and better prepared to act as a continental leader, it must chart a course that addresses these challenges and fundamentally changes the way the Kenyan government operates.
In Search of Justice
Soon after the postelection violence came to an end in early 2008, the International Criminal Court (ICC) began investigating the case. Because the violence was incited and sometimes planned by high-ranking government officials, it was especially important that the agreement brokered by Annan made clear that all those responsible would be brought to justice. In December 2010, ICC Prosecutor Luis Moreno-Ocampo issued summonses for the six individuals he believed to be most responsible for the violence; the news was highly anticipated throughout Kenya, and the announcement began a major news event, with the six individuals quickly labeled as the "Ocampo Six." Though Moreno-Ocampo has not yet issued arrest warrants for the Ocampo Six, Kenyans are worried about what lies in store for the Six.
Prime Minister Raila Odinga, who came to power as part of the post-violence power sharing agreement, told Parliament that the government has four options in wake of the summons. First, it could establish a credible and highly visible local justice process to handle the cases of postelection violence victims and thus render ICC involvement unnecessary. Second, the government could withdraw from the Rome Statute, the treaty that established the ICC, and thereby remove ICC jurisdiction. Third, it could seek a deferral of investigations for one year. Finally, Kenya could cooperate with the ICC.
The danger of Kenya withdrawing from the ICC is real. On December 22nd, the Parliament passed--with only one "No" vote--a motion urging the government to cease being a signatory of the Rome Statute, thus withdrawing the country from the ICC. …