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122 6 Justice versus reconciliation The Dilemmas of Transitional Justice in Kenya ozonnia ojielo this chapter examines the contradictions and challenges inherent in the efforts of the government of kenya to establish criminal accountability of the masterminds of the postelection violence of 2007 and 2008. i argue that any expectation of criminal prosecution was misplaced as a result of the structural and political context that underpinned the 2007 election and the consequent postelection violence. i further interrogate the work of the truth, Justice, and reconciliation Commission (tJrC), and the opportunities offered by such a domestic restorative justice mechanism, versus the international criminal justice accountability mechanism embodied in the trials of the four alleged masterminds of the violence before the international Criminal Court (iCC). on 30 december 2007, the uasin gishu district of kenya exploded into an orgy of violence and destruction: large marauding gangs of 1,000–2,000 kalenjin youth, brandishing machetes, bows and poisonous arrows, occasional firearms, matches and projectiles filled with petrol . . . blocked and manned a variety of roads with tree trunks and huge rocks, some of which were transported by tractors, throughout the district. They burned vehicles and tyres while refusing to allow anyone to pass. They also engaged in killing , rioting, and looting of kikuyus and their property. This included numerous simultaneous attacks and cutting off all five entrances to eldoret town, other roads and highways, as well as the main artery to kisumu and uganda, and beyond from timboroa to turbo. The violence was so overwhelming that for some time, long term trade was at a standstill with no supplies going in or out of uganda and eastern Congo. There was arson, looting, the destruction of property and livestock, maiming and gang raping of defenceless civilians. (Waki Commission report 2009, 53) Justice versus Reconciliation | 123 uashin gishu district was not alone. across the country, in parts of the rift Valley, nyanza, nairobi, and Western and eastern provinces, violence erupted in many towns and communities as people expressed rejection of the results of the presidential election of december 2007 and attacked kikuyus and other supporters of the Party of national unity (Pnu). according to the commission of investigation into the postelection violence (known as the Waki Commission), more than 1,000 persons were killed and more than 350,000 displaced. of the victims of the postelection violence in the rift Valley, the majority were young people; 50 percent were kikuyu, 22 percent kalenjin, four percent luo, nine percent kisii and luhya, and ten percent came from other ethnic groups (Waki Commission report 2009, 49). There were also revenge attacks by Pnu supporters. in parts of the Central province and the kikuyu-dominated areas of the rift Valley, the Mungiki militia was deployed to organize retaliatory attacks against kalenjins and luos. The reasons why kenya imploded in 2007–8 have been documented in a number of texts (Mute, akivaga, and kioko 2002; task force on establishment of tJrC 2003; Waki Commission report 2009). first, the growing politicization and proliferation of violence led to the institutionalization of violence following the legalization of multiparty democracy in 1991. second, the deliberate use of violence by politicians to obtain power since the early 1990s and the decision not to punish perpetrators led to a culture of impunity and escalation of the use of force. This, in turn, has caused a further diffusion of violence in the country that now is largely outside of the control of the state and its security agencies . Violence in kenya has become a factor not just of elections but in everyday life. The Waki Commission report (2009) therefore concluded that violence is widespread and can be tapped for a variety of reasons, including but not exclusively to win elections. The Waki Commission report identified the centralization and personalization of power around the presidency as a factor in the violence. This has had a twofold impact. one the one hand, it has given rise to the view among politicians and the general public that access to state resources and goods is dependent on sharing the same ethnic identity as the president. one the other, it has led to a deliberate denudation of the authority and legitimacy of other oversight institutions that could check abuses of power and corruption and provide some accountability, and at the same time be seen by the public as neutral arbiters with respect to contentious issues, such as disputed elections results. as a result, in many respects the state agencies are not...

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