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Four Years After Kenya's Post-Election Violence, Impunity Reigns

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Four years ago, 1,133 Kenyans lost their lives during two months of ethnic and political violence following the December 2007 general elections. Images of chaos and brutality in Kenya's streets - police firing on unarmed protesters; mobs slaughtering their neighbors - shook the world. When it was all over, following an accord brokered by Kofi Annan that established of a coalition government, Kenya's leaders promised that people responsible would be brought to justice.

That promise has been repeatedly broken. Earlier this year, Kenya tried to prevent cases against six high-profile suspects from going forward at the International Criminal Court (ICC). The ICC is a court of last resort, mandated to step in only when states are unwilling or unable to prosecute genocide, war crimes and crimes against humanity. Kenya authorities contended that ICC action was unnecessary because their criminal justice system was capable of handling such cases. That claim does not match the reality.

The post-election violence pitted the supporters of President Mwai Kibaki's ruling Party of National Unity and the security forces against civilians and armed groups affiliated with Raila Odinga's then-opposition Orange Democratic Movement. The two parties are now governing in coalition.

Human Rights Watch conducted extensive research in five Kenyan provinces to determine to what extent victims of post-election violence have had access to justice. Our results were best summed up by a Kalenjin elder in Eldoret, the epicenter of the 2007-2008 violence. Asked whether Kenyan politicians had the will to ensure accountability, when many politicians were themselves implicated, he replied, "We are very good at saying we don't leave a single stone unturned, but we don't turn a single stone. Maybe we turn pebbles.... Small stones are turned. The big ones, no one dares."

Eldoret is a case in point. A few people have been convicted for minor crimes, such as stealing, in the context of the post-election violence. But no one has been convicted for the 230 killings in and around Eldoret. And there have been no efforts to identify the politicians who organized and funded the violence.

Countrywide, only two cases have resulted in murder convictions. The national Waki Commission, which conducted preliminary investigations into the violence, identified 405 fatal police shootings - but no police officers have been convicted. Many of the 562 victims of police shootings who survived tried to file complaints, but were turned away.

The Attorney General's office withdrew some cases with no explanation. The brother of James Kigen, who was killed in Nakuru during violence between Kalenjin ODM supporters and Kisii PNU supporters, told me he tried to pursue justice. "I went [to court] to testify about the post-mortem," he said. "The rest of the hearings I didn't hear about, and then ... I was astonished to see the accused walking around. I never got an explanation." A member of the Waki Commission told me that back-room deals between PNU and ODM - which, once the coalition government was in place, seemed to overcome their differences and develop a common interest in impunity - resulted in dozens of such cases being withdrawn.

In other cases, poor investigations resulted in acquittals. One gang-rape victim told me she was able to point out one of her attackers to police. But the judge acquitted him because police never organized a line-up.

Many victims have placed their hopes in the ICC, as "the first institution [Kenyan politicians] have come across that they cannot bribe, kill, or intimidate," in the words of one Kenyan activist. Our research on the lack of access to justice in Kenya shows the ICC was right to step in, and a decision is expected next month on whether the cases brought against the six high-profile suspects will be sent to trial. But hundreds of other perpetrators of serious crimes continue to enjoy impunity.

Kenyan leaders have repeatedly promised to establish a special tribunal to prosecute the remaining cases, as the Waki Commission recommended. President Kibaki announced a year ago that the government was "fully committed to the establishment of a local tribunal," but no concrete steps have followed.

The lack of capacity and political will in the Kenyan police and judicial system demonstrates the enduring need for a special judicial mechanism. To ensure that Kenya can finally make good on its promises, our new report, "Turning Pebbles": Evading Accountability for Post-Election Violence in Kenya, recommends establishing a special bench or division within the High Court, along with a special prosecutor and units dedicated to criminal investigations and witness protection, all featuring carefully vetted Kenyan and international personnel. A further specialized unit should investigate crimes by security force members.

Four years after the violence, Kenya's victims are tired of empty promises. Another election is scheduled for 2012. The government should demonstrate that violence will not be tolerated this time around. Kenya's leaders need to accept that justice for the post-election violence is a requirement, not an option.

Neela Ghoshal is a Human Rights Watch researcher based in Nairobi.