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Prosecution or compensation? What Kenyan selections inform us about worldwide justice

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In December 2007, the Electoral Fee of Kenya announced that Mwai Kibaki had gained a second five-year time period as president. It was a stunning end result, given his opponent, Raila Odinga, had held a big early lead within the polls.

Kibaki was rapidly sworn in, sparking inter-ethnic violence. Odinga’s supporters, who have been principally from the Luo and Kalenjin ethnic teams, attacked Kibaki’s Kikuyu supporters, which led to retaliatory clashes throughout the nation.

This violence resulted in over 1,000 lifeless, greater than 600,000 displaced and innumerable victims of sexual assault.

In 2010, the Worldwide Prison Courtroom (ICC) charged six prominent Kenyans with inciting the violence. In response to the prosecution, William Ruto – on the time an Odinga supporter – instigated violence by rallying his Kalenjin co-ethnics to assault Kibaki’s Kikuyu supporters.

The courtroom alleged that Uhuru Kenyatta responded by mobilising his Kikuyu co-ethnics to assault those that purportedly backed Odinga.

To this point, nevertheless, there have been no convictions. Evidentiary difficulties have been primarily guilty. The ICC accused the Kenyan authorities of failing to cooperate in offering documentary evidence. The federal government additionally did not protect witnesses. It was moreover accused of making “a local weather of worry”.

In response to Kenyatta and Ruto, the collapse of the Kenya instances was a victory. They called the ICC an imperialistic establishment that’s biased in opposition to Africans.

Fatou Bensouda, a former prosecutor of the courtroom, disagreed, lamenting the continued impunity and denial of justice for the numerous victims of post-election violence.


Learn extra: ICC case against Kenyan lawyer Gicheru: it matters, but not for victims of the violence


We got down to investigate whether or not the ICC’s failure to safe convictions mattered to Kenyans. Extra broadly, we wished to be taught in regards to the justice preferences of people in international locations rising from mass violence and human rights abuses.

Our analysis findings have two implications. First, regardless of years of campaigns in opposition to the ICC by Kenya’s elected management, and little on-the-ground outreach from the courtroom, it nonetheless has supporters within the nation. Second, victims or witnesses to violence are much less probably to purchase into anti-ICC narratives. When denied justice domestically, they could be prepared to help the courtroom’s quest to ship justice and accountability.

Prosecution vs compensation

We performed our analysis in Kenya in 2015. Our analysis staff carried out face-to-face surveys of greater than 500 Kenyans in 5 areas within the nation the place violence had occurred. Our outcomes have been revealed over the past three years, most lately in a May 2022 paper.

We requested respondents whether or not they most popular prosecutions or compensation for the harms they or their fellow residents had suffered throughout the 2007-2008 post-election violence.

Residents might favor each, however we phrased the query this fashion as a result of in post-conflict conditions, international locations don’t all the time have the assets to pursue each obtainable justice mechanism. For individuals who most popular prosecutions, we requested whether or not they most popular that the alleged perpetrators be tried in Kenyan courts or on the ICC.


Learn extra: 20 years on, the International Criminal Court is doing more good than its critics claim


So far as we’re conscious, ours is the primary examine that asks Kenyans to decide on between prosecution and compensation. It’s additionally the primary to contemplate how the choice of ICC prosecutions may average preferences. Our examine moreover collected information on ethnicity and on whether or not the respondent was uncovered to post-election violence as a witness or sufferer.

Some researchers recommend that people’ justice preferences will align with these of their ethnic leaders. It is because these are the individuals they flip to for materials and different help. Other scholars theorise that folks uncovered to violence will prioritise psychological over materials advantages. That’s, they’ll be pulled in the direction of mechanisms which may maintain abusers accountable.

We examined these theories utilizing information we gathered when the ICC’s case in opposition to Ruto was nonetheless pending.

Our findings stay related because the Kenyan post-election situation continues earlier than the ICC. Lawyer Paul Gicheru is awaiting a choice on his trial after closing statements have been made in June 2022. Gicheru has been accused of corruptly influencing witnesses in instances stemming from the 2007 election disaster – together with the case against Ruto.

Function of ethnicity

Our analysis discovered that first, most Kenyans didn’t favour compensation over the retributive justice afforded by prosecutions.

Second, ethnicity typically performed a job in respondents’ preferences. Respondents who recognized as Kikuyu or Kalenjin – Kenyatta’s and Ruto’s ethnicities, respectively – have been much less more likely to help trials than Kenyans of different ethnicities.

Materials self-interest might clarify this discovering. Respondents might imagine they might profit if their co-ethnics remained in energy.

Third, and maybe most significantly, Kenyans who self-identified as witnesses or victims of violence typically most popular prosecutions over compensation. Moreover, they most popular prosecution on the ICC moderately than at a home courtroom.

This end result held for co-ethnics of Kenyatta and Ruto. Regardless that Kikuyus or Kalenjins typically had greater ranges of help for compensation than those that recognized as different ethnicities, victims who recognized as both Kikuyu or Kalenjin decreased their help for compensation by about 11 proportion factors (from 52% to 41%). Kikuyu or Kalenjin victims have been additionally about 11 proportion factors extra probably than Kikuyus or Kalenjins who weren’t victims to help trials on the ICC over home trials.

Briefly, though Kikuyu or Kalenjin people present greater ranges of help for compensation than trials in comparison with different ethnic teams, publicity to violence has an analogous affect throughout ethnicities: it will increase help for trials and the ICC.

Whereas Kenyatta and Ruto sought to discredit the worldwide courtroom after they have been charged, our research discovered that witnesses of violence and victims have been much less probably than the common Kenyan to purchase into this narrative.

What it means

Our analysis findings recommend that non-public experiences with violence affect attitudes in the direction of post-conflict justice mechanisms.

People who’ve encountered violence usually tend to prioritise “righting the incorrect” even when it means their co-ethnics might be punished. They additional reveal the important thing function the worldwide courtroom performs for victims of mass violence.


Learn extra: Al-Bashir and the ICC: is it worth getting your man, if you jeopardise your mission?


Many have criticised the courtroom for, amongst different causes, its paucity of convictions. Nonetheless, our analysis exhibits that the courtroom has an necessary function to play in offering justice for these for whom justice is denied domestically.

The ICC, nevertheless, can solely ship justice if international locations cooperate with and help it. The end result of the Kenya instances (to date) exhibits what occurs when states fail to do their half: victims are denied their day in courtroom.