President Obama will be visiting Kenya this weekend for the first time since he became President, and high on his agenda will be addressing regional and global security. Kenya is an important strategic ally in the global campaign against international terrorism, as it abuts Somalia (home of Al Shabaab) and a newly independent but unstable South Sudan, and is adjacent to international waters plagued by piracy. A number of prominent terrorist attacks in Kenya itself, most notably the Westgate Mall attack in 2013 in which over sixty people were killed, and the Garissa University school attack in which close to 150 Kenyan students were killed, underscore the lethal danger posed by such groups.
There is no question that President Obama will, and should, engage with the Kenyan Government to reaffirm our commitment to working with them to address the threat that Al Shabaab and similar groups pose to Kenya, the region, and the world. Part of that conversation must, however, include addressing Kenya’s persistent legacy of impunity with respect to gross violations of human rights and corruption. As the US National Security Council has acknowledged, strengthening accountability and the protection of fundamental human rights strengthens efforts to combat terrorism, and thus furthers US national security interests. As we learned from the inadequate response by the Kenyan security forces to the Westgate Mall attack, corruption undercuts security, allowing terrorists to easily move in and out of Kenya with sophisticated weapons for launching such attacks, and weakening the ability of the security forces to prevent or respond effectively to such an attack.
Kenya’s legacy of impunity poses a particular challenge to the United States as we deepen our partnership to combat groups like Al Shabaab. Recent actions by the Kenyan Government, however, suggest that there may be new opportunities to engage with Kenya to further what should be shared goals of enhancing global security, protecting fundamental human rights, strengthening the rule of law, and achieving a measure of accountability for gross violations of human rights.
President Obama may become the first sitting President to meet with an official currently being prosecuted by the International Criminal Court (ICC) for crimes against humanity, the Kenyan Deputy President, William Ruto. The Kenyan papers are reporting that Ruto will be meeting with the President, but there is no official confirmation from the US Government concerning any such meeting. President Obama certainly will be meeting with President Kenyatta, who like Deputy President Ruto was charged by the ICC with similar crimes against humanity, though the ICC Prosecutor recently dropped the charges against President Kenyatta. Both President Kenyatta and Deputy President Ruto were indicted by the ICC for their alleged involvement in the post-election violence in late 2007 and early 2008 that resulted in over 1,000 deaths, tens of thousands of assaults and rapes, and the displacement of hundreds of thousands of people. Some of these atrocities were committed or facilitated by the police and other security forces. To date, no one has been held to account for leading or organizing that violence, notwithstanding a number of commissions of inquiry, both official and unofficial, that have collected evidence of the involvement of prominent Kenyan politicians in organizing and perpetrating the violence.
From August 2009 to August 2013, I served as one of three international Commissioners with the Kenyan Truth Justice and Reconciliation Commission (TJRC). We collected over 40,000 statements from Kenyans from every corner of the country, and held public and private hearings throughout the country for over a year. Our mandate included, but was not limited to, the gross violations of human rights committed during the post-election violence. We also heard stories about violations dating back to the colonial period, including political assassinations, massacres, systematic torture and rape, land grabbing, and systematic corruption. The thousands of witnesses who engaged with us had a simple message – they wanted to know the truth of who was behind these violations and they wanted justice—both accountability and some form of reparations. Yet despite numerous investigations into many of these atrocities, including by the TJRC, no prominent Kenyan has ever been prosecuted for these atrocities. It is thus not surprising that no one has been identified, much less held to account, for organizing or leading the post-election violence.
Despite this pervasive history of impunity, President Obama’s visit presents a window of opportunity to emphasize the importance of accountability and the rule of law. In a surprise announcement during his state of the nation address in March of this year, President Kenyatta revealed that he was establishing a 10 billion Kenyan shilling “Restorative Justice” fund to provide reparations to victims of past human rights violations, including the victims of the post-election violence. This is an enormous sum of money, the equivalent of US $100 million at today’s exchange rate. In addition, President Kenyatta apologized to the nation on behalf of the Kenyan government for many of the assassinations and massacres that we at the TJRC investigated. This was the first time that a Kenyan head of state has ever acknowledged, much less apologized for, abuses of the Kenyan state against its own people. The Restorative Justice Fund, if it is actually created and implemented as intended, will be the single largest program of reparations undertaken by any African country to compensate its own citizens for violations committed by their government.
President Kenyatta’s announcement of the Restorative Justice Fund was accompanied by an announcement that there would be no further investigations or prosecutions for those responsible for the post-election violence. This is an unfortunate continuation of the legacy of impunity that has characterized much of the history of Kenya since its independence. It is one step back from the two steps forward embodied in the announcement of the creation of the Fund.
President Obama can and should emphasize the importance of the rule of law and providing criminal accountability for the killings, rapes, and other atrocities committed during the post-election violence. At the same time, President Obama should praise the Restorative Justice Fund. It is an unprecedented promise by an African government to its people that should be celebrated and commended to other governments grappling with a legacy of human rights abuses, from the Democratic Republic of Congo to Colombia to Northern Ireland. If President Obama delivers this two-part message on accountability, he will not only contribute to furthering the fundamental rights and freedoms of Kenyans, but also to enhancing global security and thus the national security interests of the United States.