Police and army have plenty to answer for post-election violence

Individuals have international duties which transcend national obligations and… have a duty to violate domestic laws to prevent crimes against peace and humanity…” — Nuremberg war crime tribunal, 1950


The Kriegler and Waki commissions are winding up investigations into the events after the December 2007 elections. Soon they will present their reports and recommendations to the President at colourful ceremonies at State House and then we go through the déja vu of such reports — archiving.

But one thing that is irreducible in these commissions is that international criminal law is not changed by them.

Testimonies have been given of the role played by police in either quelling or exacerbating the post-election violence. It is believed that, over half of the people who died in the violence were police victims, although they have been quick at absolving themselves of any wrongdoing, arguing that they were upholding the law. As the rest of the country bore the brunt of violence caused by faulty presidential vote tallying, Mt Elgon was in flames at the hands of the Sabaot Land Defence Force. The army was sent to, in three days, destroy the rag-tag force, estimated at a paltry 800 ill-equipped and illiterate boys and men, but they have been there for over four months now. Complaints have been made of atrocities committed by the soldiers and, as expected, they have answered with acerbic denials. With due respect, both the army and police should face the full force of the law in the near future. The personnel, from the lowest rank to the commanders, involved in the operations in Kisumu, Naivasha, Eldoret, Nairobi and Mt Elgon have a case to answer.

When World War II ended, leaving death and destruction in its trail, international criminal jurisprudence was given foundation and clarity. The Nuremberg Trials and, later, the Rome Treaty of 1998, have established the law relating to the protection of human rights. Crimes against humanity, war crimes and crimes against peace are now international crimes with no territorial restrictions. Anyone committing them in one country can be indicted in another, and all signatories to the Rome Treaty, Kenya included, have the obligation to enforce it. These international crimes include, but are not limited to, murder, deportation, imprisonment, torture, rape, destruction of property, and violation of laws and customs of war.

To qualify as an international crime, the offence must be committed by state security organs like the army or police, or by private militia with the tacit support or acquiescence of the state. The acts must also be part of a pattern and organised.

In 1973, Gen Augusto Pinochet Ugarte shot his way to power in Chile and ruled with an iron hand till 1990. But during this despotic tenure, Chile underwent el milagro económico, or economic miracle, making the economy the most robust in South America. As Pinochet was exiting power in 1990, Albetro Fujimori in neighbouring Peru came in by a democratic election. By the end of his tenure in 2000, Fujimori had laid the foundation for macro-economic stability that makes Peru the envy of Latin America today.

Both Pinochet and Fujimori, while leading their countries into an unprecedented economic revival, used the army, police and intelligence services to destroy the opposition and plunder the countries. In both countries, state opponents, real or imagined, were killed, tortured or simply disappeared. When their tenures came to abrupt ends, they fled their countries, but they were later arrested and returned home. Both were indicted for crimes against humanity and state plunder. Pinochet, deaf, senile and suffering from dementia, died before his trial began, while Fujimori is still going through the slow wheels of justice. The arrest and indictment of the two leaders is a testimony to the universality and timelessness of the law on international crimes. The accused are no longer safe in any country. People committing crimes in Ethiopia, Somalia and DR Congo, for instance, have no safe refuge anywhere else. And so are those who committed crimes in Kenya as long as their crimes meet the above standards.

The other principle established by the Nuremberg Trials and the Rome Treaty is that culpability is individual and never collective. No offender can offer a defence of superior orders. And domestic law or immunity are no defence. Therefore, our police and army cannot hide behind the Police Act, Cap. 84 or the Armed Forces Act, Cap. 199, if their actions amount to international crimes.

When police and the army carry out executive or ministerial orders, they should at all times bear in mind that responsibility for their actions is individual. It is a human failing to get excited about carrying out such orders because of sycophancy and forgetting the changed and entrenched international law. The officers should, therefore, carry out their statutory mandates with fairness and even-handedness, bearing in mind that Executive power is always transitory.