The International Criminal Court’s Lack of Credibility: What Consequences for the Process of Convicting Perpetrators of Mass Atrocities?

By Salomé Wyns

Salomé Wyns is a recent graduate in International Relations and Politics at the University of Sheffield, UK.

Abstract

February 2018 marked the twentieth anniversary of the Rome Statute which established the International Criminal Court (ICC). The ICC has, since 2002, taken up the daunting challenge of meting out international criminal accountability. As a permanent judicial institution, the ICC seeks to end impunity for the most serious crimes of international concern, namely genocide, crimes against humanity, war crimes and crimes of aggression (UN General Assembly, 1998). Since its implementation sixteen years ago, the ICC has faced a range of criticisms regarding its effectiveness and its alleged bias against African leaders. The purpose of this paper is to identify the factors contributing to the International Criminal Court’s lack of credibility –along the lines of impartiality and independence- and assess how these factors may hinder the process of conviction of perpetrators of mass atrocities. Through an analysis of the case of Kenya (2007-2008), this paper will argue that the ICC’s lack of credibility stems from inherent structural contradictions that limit the Court in its prosecutorial independence and impartiality, rendering it vulnerable to politicisation and manipulation by states, thereby enabling them to justify non-cooperation.

Introduction

In recent years, the credibility of the International Criminal Court (ICC) as an impartial and independent institution has been challenged by African leaders, scholars and human rights advocates alike (Tiemessen, 2014: 444). The perception of the ICC as a credible institution by states and other international actors is crucial to its success, as the Court largely depends on the support of these actors. The focus of this paper, divided into four sections, will be on the ICC’s ability to safeguard its reputation as an impartial and independent judicial institution. The first section briefly provides a background of the ICC, defines the term ‘credibility’ and looks at the claim of inefficiency against the Court. The second section examines the ICC’s lack of police enforcement and its ties with the Security Council to argue that this association leads to politicisation. The third section focuses on the ICC’s case selection partiality and the bias and the double standards that stem from it. Finally, the fourth section turns to the case of Kenya to illustrate the negative effect of the ICC’s lack of credibility on state cooperation.

Background

The Rome Statute was adopted by 120 states in July 1998 and entered into force in July 2002 (Wouters and Basu, 2009: 11). The implementation of a permanent international criminal court prosecuting humanity’s worst crimes constitutes a bold challenge to state sovereignty and was, therefore, likely to generate a certain degree of opposition (Bosco, 2012: 4). Since then, lengthy and costly trials resulting in few convictions have resulted in criticisms concerning the ICC’s credibility and efficiency.

The charge against the ICC

Before proceeding, it is necessary to define the word ‘credible’ in the context of this paper. In the case of the ICC, a credible institution would be independent and impartial, ultimately leading to efficiency (Gegout, 2013: 801). Indeed, if the perception of the ICC as an untrustworthy institution impacts its ability to convict perpetrators of mass atrocities, increasing that credibility depends on one hand on the ICC’s ability to act independently from states, and on the other, on its ability to deliver justice in a fair and impartial manner (Gegout, 2013: 800). However, one must be cautious not to make the assumption that the ICC’s conviction rate is entirely dependent on the Court’s level of credibility (see Davenport, 2014). Measuring the effectiveness of international institutions remains a complex challenge; as such, a number of factors can account for the ICC’s low conviction rate. Firstly, the Court only has territorial jurisdiction in the states parties to the Rome Statute and can only investigate crimes committed after 2002. This significantly limits the ICC’s ability to provide universal justice. Secondly, war crimes cases are extremely complex in nature and require time, since a delay in proceedings is essential to allow the truth to emerge (Whiting, 2009: 335). Moreover, a lack of cooperation usually generates delays in judicial proceedings and can lead to the complete collapse of a case, as with the case of Kenya (2007-2008). Finally, the ICC is a court of ‘last resort’ which means it can only intervene when national courts themselves lack the ability to prosecute perpetrators. As former prosecutor Luis Moreno-Ocampo, cited in Nichols (2016: 32), states:

‘as a consequence of complementarity, the number of cases that reach the Court should not be a measure of its efficiency. On the contrary, the absence of trials before this Court, as a consequence of the regular functioning of national institutions, would be a major success.’

One must also be mindful that the institution is fairly young and will only be able to build credibility over time (Cassesse, 1999: 145). Indeed, the creation of such court is truly revolutionary and changes at the international level happen incrementally. It is indisputable that the quality of justice the ICC delivers should continue to be scrutinised, as effectiveness is the only path for the Court to be sustainable. However, the ICC’s credibility should not only be determined by its conviction rate but by the legitimacy of the proceedings, and by the Court’s ability to uphold principles of independence and impartiality, characteristics which will be explored in the next sections. Nonetheless, it can be concluded that the perception of the ICC as an inefficient institution plays a role in undermining its credibility, as each failure undermines the Court’s ability to deliver justice in the eyes of the victims, as well as in those of the international community.

The politicisation of the ICC

This section will argue that the ICC’s dependence on external political actors allows special interests to permeate and influence the law. This dependence ultimately weakens the ICC’s credibility as an independent institution. Indeed, the Court is highly dependent on state cooperation as it does not possess any police force or effective means to enforce states’ cooperation (Kaye and Raustiala, 2016: 7). Whether it be to investigate on the ground, arrest suspects or provide evidence, cooperation from states is crucial. Vinjamuri (2014: 277) labels this phenomenon ‘the authority paradox’. On one hand, the ICC’s authority and credibility reside in the assumption that justice must be independent from politics. But on the other hand, the ICC is structurally dependent on states to enforce its mandate (Vinjamuri, 2014: 277). Although full cooperation with the Court in its investigations and prosecutions is required under Article 86 of the Rome Statute (UN General Assembly, 1998), the ICC’s authority has been blatantly defied by states on multiple occasions.

This structural weakness compels the ICC to seek assistance from powerful states that have coercive power (Kaye and Raustiala, 2016: 7). The challenge for the ICC therefore becomes to balance two opposing inclinations: restraining state power, while relying on their cooperation at the same time. Instead of enhancing the Court’s legitimacy and power, it has been argued that the United Nations Security Council’s (UNSC) special rights of referral under Chapter VII of the UN charter, as well as their right to defer proceedings in the interests of international peace and security under Article 16 of the Rome Statute, open the door for politicisation and double standards (Tiemessen, 2014: 454). This association reflects the strategic political constraints that entangle the UNSC and state parties’ self-interests. This was especially obvious in the early days of the institution when the prosecutor’s office avoided conflicts that involved major-power interests –the cases of Afghanistan and Palestine for instance- (Bosco, 2012: 78). As Bosco (2012) argues, even though major powers like the United States do not directly control international institutions, by adopting ‘marginalising’ or ‘controlling’ behaviours, powerful states can influence the Court. The United States has had a wavering position towards the Court, but some argue that, more recently, it has used the Court to target rogue states such as Sudan and Libya – neither of which are parties to the Rome Statute- (Mamdani, 2008). Particularly in the aftermath of NATO’s intervention in Libya, the proximity between the Security Council, state interests, and international criminal justice became too close for many of the ICC’s proponents. This has quickly resulted in allegations that the ICC had become associated with a Western military policy of regime change (Vinjumura, 2014: 284). Many now worry that the Rome Statute will be used to breach sovereignty through intervention (Mackie, 2012:138). The special privileges granted to a small number of powerful states by international institutions creates obvious tensions with a sovereignty norm that stipulates equal status to all states. The fact that the ICC is intertwined with the UNSC’s network of political and logistical support undermines its independence and ultimately is an important factor for the ICC’s loss of credibility.

An African bias?

The second factor resulting in the ICC’s lack of credibility is the selectivity in its case selection, which has resulted in an almost exclusive focus on African perpetrators. The mandate of the ICC is very ambitious, but a single institution cannot investigate all situations under its jurisdiction or prosecute the full range of criminal responsibility within them. Therefore, a degree of selectivity is necessary for the ICC to operate. However, the ICC’s apparent focus on Africa -every one of the 32 criminals ever indicted have been African men (Elsheikh, 2015)-clashes with its alleged global mandate. It is in this context that African leaders, such as Paul Kagame, have been very vocal, accusing the ICC of systematically targeting Africa whilst overlooking crimes perpetrated in other parts of the world (Mugabi, 2016). They argue that the ICC reflects a western bias, some even going as far as claiming that the Court is a tool of neo-colonialism (Kenyatta, 2013). According to that argument, the ICC is being used by western countries to exercise influence on the internal affairs of African countries. Mackie’s (2012) analysis of the ICC website’s language is useful to illustrate this argument. On the ICC’s website, fifty-five separate documents contain the word ‘barbaric’ whereas the word ‘savage’ appears forty-seven times in the context of human rights violations (Mackie, 2012: 134). These terms create a dichotomy of ‘us versus them’ and dehumanises perpetrators (Sagan, 2010: 16). The negative connotations of these words and the image of the external actor intervening to save helpless victims from heartless perpetrators seriously hearken back to rationalisations of colonialism. Such rhetoric strengthens African leaders’ argument that the ICC is a form of neo-colonialism institutionalised through international criminal law (Mackie 2012: 134).

However, the ICC’s focus on Africa can, once again, be explained by structural limitations. Firstly, as argued in the second section, the partnership between the ICC and the Security Council creates double standards. Many African countries do not have powerful protectors in the Council—unlike Syria, for example, where Russia has been blocking the ICC’s efforts to prosecute crimes committed there (Rothmyer, 2012). There is also the fact that many countries accused of human rights abuses (the United States, China and Russia amongst them) have refused to be a party to the ICC statute, making it unlikely that their alleged crimes will ever be prosecuted. It is therefore felt that the ICC is going after Africans by default (Rothmyer, 2012). This has resulted in a disengagement by African countries and leaders who feel unjustly targeted. The backlash first surged when an arrest warrant was issued against Sudanese President Omar Al-Bashir in 2009. The hostility between the Court and the African Union (AU) then reached new heights when ICC suspects, Uhuru Kenyatta and William Ruto, were elected president and deputy president of Kenya, and a potential massive pull-out from the ICC was considered.

There are also arguments against the potential bias of the Court. Firstly, considering that African States constitute the largest regional grouping of state parties, it was statistically more likely that prosecutions would arise from African states. Indeed, in the wake of the genocide in Rwanda, and given the long history of war crimes and impunity in the continent, African countries had a clear interest in joining an international criminal court. Secondly, judging the ICC to be more competent and impartial than their own national courts, many African countries have referred cases to the Court themselves. Hence, these referrals cannot be regarded as external interventions (Mendes, 2010: 168). Therefore, although the Court does reflect the double standards that are deeply rooted in global governance structures (Bosco, 2014: 189), the ICC’s case selection needs to be understood in the context of these limitations. Nonetheless, these allegations of racial bias and neo-colonialism, whether accurate or not, have significantly damaged the ICC’s credibility and hindered cooperation from African states.

The consequences: The case of Kenya

The forceful campaign led by ICC indictees Uhuru Kenyatta and William Ruto was designed to portray the ICC as an untrustworthy and biased institution and thus delegitimise its authority. This reflects the degree of politicisation involved in ICC cases and the negative effect it has on cooperation. In March 2010, the ICC opened investigations on six individuals for their involvement in the ethnically targeted violence that followed the 2007 Kenyan election (Mueller, 2014: 27). The post-election violence left thousands dead, injured and displaced (Claire, 2012: 641). However, the Kenyan government failed to deliver justice for victims. It was thus the first time a case was referred by the prosecutor himself (‘proprio motu’). Moreover, the judges and the prosecutor tried to stay away from Kenya’s domestic politics (Tiemessen, 2014: 456). However, despite these efforts to remain independent and impartial, rather than accepting the ICC’s authority, Kenyatta and Ruto joined forces to run for the presidency while campaigning against the ICC. Kenyatta employed a populist rhetoric to discredit the Court’s operations in Kenya and ultimately won the election. By recalling Kenya’s colonial past, Kenyatta managed to spin the charges into a powerful narrative implying that the ICC was a ‘toy of imperialism’ (Kenyatta, 2013). Kenyatta claimed before African Heads of State and Government that, since the Court’s budget is largely funded by the EU, ‘Western powers are the key drivers of the ICC’ and that ‘the threat of prosecution’ by this Court is being used as a tool to make ‘pliant states execute policies favourable to these [Western] countries’ (Materu, 2014: 221). Similarly, at the same AU Summit in October 2013, Kenyatta accused the ICC of ‘race-hunting’ Africans (Kenyatta, 2013). Consequently, whereas the African Union’s mediation process following the 2008 violence in Kenya was seen as a locally owned process, granted with support and legitimacy, those seeking to undermine the Court portrayed the ICC’s intervention as an externally driven process imposed by the West (Juma, 2009: 407).

Assessing whether or not the ICC has perceived credibility in Kenya and elsewhere in Africa is highly subjective, but some elements prove that Kenyatta’s campaign has clearly been effective in hindering cooperation with the Court. Indeed, in addition to building domestic support and winning the election, Kenyatta used his newly won platform as President to discourage the African Union from cooperating with the ICC (Mueller, 2014: 31). Between 2011 and 2012, Kenya aggressively lobbied African leaders to get support from the AU in their demand for a UN deferral of ICC investigations and their transfer back to Kenya’s domestic courts (Mueller, 2014: 31). Whilst their efforts were unsuccessful, Kenyatta’s campaign did resonate with the AU. In September 2013, a potential mass pull-out by African countries was even considered by the AU (Mueller, 2014: 32). South Africa and Burundi’s decision to withdraw from the ICC in October 2016 (Sieff and Mahr, 2016) marks another blow to the ICC’s deteriorating relationship with Africa. Cooperation with the Court has also been put at risk by the alleged attempts of intimidation of witnesses for the prosecution (Mueller, 2014: 33). Kenyatta and Ruto successfully postponed their trials until after they gained power. Finding themselves without witnesses, key documents, or political support, prosecutors had no choice but to withdraw charges in December 2015. In September 2016, the ICC issued a finding of non-cooperation to the ICC’s Assembly of States Parties. The failure of the case has resulted in the Kenyan victims feeling a ‘growing loss of faith in the ICC’ (Mueller, 2014: 38). Ultimately, justice for thousands is still to be delivered. Neither Kenya nor the ICC has met its responsibility to hold the perpetrators of war crimes accountable, showing yet again, that politics trumps justice. This attempt to undermine cooperation with the ICC can largely be attributed to the unique structure and jurisdiction of the ICC, which renders it vulnerable to the political interests of those who instrumentalise it. The case of Kenya highlights the ICC’s limited enforcement powers, especially when political power and non-compliance combine to threaten the law (Mueller, 2014: 38).

Conclusion

This essay has attempted to identify the causes of the ICC’s lack of credibility and its effect on the non-cooperation of states by examining the case of Kenya. It has been argued that structural weaknesses in the Rome Statute regime have limited the ICC in its independence and partiality, ultimately weakening the Court as a credible and effective institution. Without support and cooperation, the ICC will perpetuate the vicious circle of loss of credibility and will ultimately be less effective in meting out accountability and positively affecting conflict resolution. At its heart, the ICC reflects deep tensions between peace and justice, politics and law, and power and norms. It embodies strong ambitions and has a broad set of objectives, and balancing legal understandings and political interests, while maintaining credibility and support, will remain the ICC’s biggest challenge to ensure universal human security.

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Transitional Justice: A Tool of Elite Manipulation? A Constructivist Analysis of Gross-Abuse in Kenya and Rwanda

By Alisha Lakhani

Alisha Lakhani is a graduate in Arabic and International Relations from the University of Leeds, with a keen interest in constructivist norm theory and transitional justice.

Abstract

Since its inception in the 1990s, significant concerns have been raised regarding the implementation of transitional justice and the abuse of its mechanisms. The purpose of this paper is to determine the extent to which the noble ambitions of transitional justice have been co-opted by political elites to serve vested interests. Whilst gross abuse of state institutions and processes is not a new phenomenon, using a constructivist lens unveils the sheer scope of elite manipulation. In this paper, norm theory is used to analyse transitional justice mechanisms in Rwanda following the genocide in 1994, and in Kenya following the outbreak of electoral violence in 2007. The paper addresses the abuse of transitional justice mechanisms through positing a three-tiered narrative which explains how leaders consolidate personal political power as well as party dogma. Firstly, elites create a state-directed version of truth which is later institutionalised as collective memory, and ultimately history. Secondly, all opponents are characterised as the ‘other’ and enemies of state through manipulating these mechanisms. Finally, notions of justice are mobilised to claim ‘liberation’ is under threat to justify elongation of political mandates. This paper demonstrates how elites mobilise transitional justice to serve their own agenda. Fundamentally, this paper reiterates the fact that transitional justice is a definitional project with both causal and constitutive effects, which render it vulnerable to abuse.

Introduction

This essay argues that transitional justice mechanisms are heavily instrumentalised by political elites in order to serve their vested interests. This conclusion was reached through an examination of the transitional justice processes that were introduced in Rwanda following the 1994 genocide and in Kenya following the 2007 post-election violence. A constructivist theoretical paradigm is utilised as it offers interesting insights into the ways in which transitional justice mechanisms are employed by elites to carry out their agendas, as well as the implications of such practices. Constructivists argue that although there is an objective reality, it is not simply a product of physical manifestations; it is also socially constructed by ideas and other forms of cognitive structures (Adler, 1997, pp. 319). With this in mind, it is necessary to consider the nature of justice and the mechanisms within which it manifests. As Nouwen and Werner (2015, pp. 176) highlight, “numerous articulations of justice co-exist, overlap and compete”. Furthermore, Acharya (2013, pp. 467) argues that ideas and norms, in this case, the norm of ‘justice’, have causal and constitutive effects. Therefore, it is necessary to consider who is responsible for the articulation of this norm as well as its reproduction, as it represents a form of agency.

Historically, transitional justice mechanisms adopt either a restorative approach, which can entail Truth and Reconciliation Commissions (TRCs) and provision of amnesties, or a retributive approach which can entail international, national and grassroots criminal tribunals with the end goal of punitive punishment, although there are elements of both in most transitional systems (Mallinder, 2007, pp. 208). If one considers the constructivist notion that there is rarely such a thing as value-free knowledge (Adler, 1997, pp. 336), an important question arises pertaining to the scope of elite manipulation and the extent to which such manoeuvrings have impacted and infiltrated norms of transitional justice and their application. It is argued that one-way in which transitional justice mechanisms are utilised is by constructing a version of ‘truth’ which downplays the serious transgressions of the political elite as well as those of the parties they represent. Elite political actors attempt to institutionalise this version of ‘truth’ to form a collective memory or ‘history’, which is particularly problematic as those “who control the past, control the future” (Orwell, 2004, pp. 44). Another way in which elites mobilise transitional justice mechanisms is through creating an enemy or an ‘other’. This is a concerted strategy employed by political elites to neutralise any perceived threat; whether that is domestic or international, material or fictitious. Finally, political elites also manipulate the ambitious, and some may contend, utopian aims of transitional justice (Campbell and Turner, 2008) to claim that it has not been fully actualised. This allows elites to elongate the transitional period, as well as their political mandate, by claiming that the process of liberation is under threat and that a particular party or a politician alone possesses the skill and foresight to protect it (Beresford et al., 2017). This paper argues that due to elite manipulation, transitional justice mechanisms are undermined and, as a result, lasting peace and reconciliation has yet to be actualised both in Kenya and in Rwanda.

Transitional Justice: A Discursive Tool

According to McAuliffe (2017, pp. 44), “transitional justice does not happen in a political vacuum, it always challenges an existing order that did not permit such progress to develop organically”. As this paper shows, in Kenya and Rwanda, political elites have re-articulated notions of justice to safeguard against any assault on their political power and authority. As aptly iterated by Miller (2008, pp. 267), transitional justice is, at heart, a “definitional project” and therefore it is subject to the whims and caprices of those who are part and parcel of its establishment, institutionalisation and enforcement. However, in relation to political elites, manipulation of transitional justice mechanisms is not simply a whimsical act devoid of intent; it is rather a concerted strategy employed to entrench personal power, cement party dogma and to secure political capital and legitimacy. As this paper argues, in Rwanda and Kenya, this is actualised through the creation and reproduction of a singular, prescribed narrative of ‘truth’. Through its replication and institutionalisation, this version of truth is characterised as collective memory, ergo history. This is of paramount importance as history frames the past and has the capacity to frame our present and our future.

One such transitional justice mechanism employed to create and promulgate state-directed versions of events are the gacaca courts in Rwanda. These were introduced by the Rwandan Patriotic Front (RPF) in 2002 in order to facilitate the expression of ‘truths’, to promote reconciliation, to eradicate the culture of impunity, in addition to expediting the trials of suspected génocidaires (Scanlon & Motlafi, 2010, pp. 302). However, it is argued that despite these lofty aims of the gacaca courts, they are not much more than a vehicle to disseminate state-imposed versions of events. This argument is supported by Corey and Joireman (2004, pp. 86) who claim that the jurisdiction of the gacaca courts were deliberately limited by the regime in order to exclude testimonies of Tutsi atrocities, thereby exonerating Tutsi and RPF violations which includes the massacre of civilian Hutu populations, during the genocide as well as after the establishment of the new regime. The characterisation of Tutsi transgressions as a ‘war crime’ and Hutu offences as ‘a crime against humanity’ is part of a concerted strategy to downplay the gravity of RPF and Tutsi crimes. Not only do the political elite define who is to blame for the outbreak of conflict, they are also instrumental in determining what constitutes a crime, as well as who may be considered a victim and whom the perpetrator. Such narratives of blame hold tremendous power as they are utilised to entrench systems of oppression and inequity against certain echelons of society whilst empowering others, thus demonstrating the manipulation of transitional justice mechanisms for political gain.

In Rwanda, systems of oppression operate along ethnic cleavages. Rentyjens (2006, pp. 1110) defines this as the ‘Tutsi-isation” and “RPF-isation’ of Rwanda, which is evident through their exclusive monopoly of public institutions and positions of power. Statistics reveal that in 2000, 70\% of the most prominent positions of office were held by Tutsis; which is concerning as they comprise just 10\% of the population (Rentyjens, 2011, pp. 30). The preferential treatment conferred to the Tutsi population is indicative of the RPF’s formation of a new ‘Akazu’ (patrimonial network) which works to bolster their support, allows the party to acquire legitimacy and to strengthen President Kagame’s hold over the reins of power (Rentyjens, 2011, pp. 30). The term ‘Akazu’ is a reference to an informal grouping of Hutu elites who were closely affiliated to the former Habyarimana regime; it is said that they abided by an extremist ideology and played a significant role in orchestrating the genocide against the Tutsi population (Behuria, 2015, pp. 258). It is of no coincidence that Rentyjens utilises such contentious terminology to describe the actions of the RPF-led regime; it is a damning denunciation. Bratton and Van De Walle (1997, pp. 65-66) argue that political elites acquire support and legitimacy through providing their patrimonial networks with access to state resources. This paper argues that due to the RPF’s authoritarian control over all state resources and institutions, there is no room for contestation of their power which explains their extraordinary success during elections. This is a deliberate strategy employed by the RPF and this paper suggests that the creation of this ‘Akazu’ would not have been feasible had the institutionalisation of a state-directed version of ‘truth’ not occurred. This sentiment is well exemplified by Miller (2008, pp. 280), who claims that “transitional justice mechanisms…are discursive tools, just as much as they are instruments of accountability or reconciliation; they may frame the conflict in one dimension without providing an alternative vocabulary.”

Similarly, in Kenya, transitional justice mechanisms are instrumentalised to create a version of ‘truth’ which portrays the current ruling coalition in a more favourable light. It is argued that this narrative of ‘truth’ is the source of the Jubilee Alliance’s power, legitimacy and support, despite the emergence of damning evidence of “potential crimes against humanity” (Brown et al., 2012, pp. 248). Following the 2007 post-election violence, a Commission of Inquiry revealed the violence in Kenya “followed ethno-religious patterns of party affiliations” (Lugano, 2017, pp. 15). The Commission recommended the creation of a Special Tribunal to investigate these crimes. When this did not materialise, the International Criminal Court (ICC) intervened. The ICC intervention in Kenya was especially controversial due to the revelation of the ‘Ocampo Six’; a list of six high-ranking members of the political elite under investigation for inciting ethnic violence, which was grave enough to be considered a ‘potential crime against humanity’ (GPPAC, 2014, pp. 16). It is argued that the political elite in Kenya downplayed their own role in the promotion of a zero-sum ethnic competition, through creating and replicating narratives which brought the ICC’s legitimacy into question. This strategy successfully allowed the political elite to circumvent both international and domestic scrutiny of their actions. This view is supported by Lynch (2014, pp. 94) who claims that the Jubilee Alliance “reframed the ICC story – at least in the eyes of a significant number of Kenyans – as a performance of injustice, neo-colonialism, and threat to the country’s sovereignty, peace and stability.” Lynch presents a persuasive argument, one which is verified through grassroots, ethnographic research, which consisted of interviews and focus-group discussions as well as election-monitoring processes, TRC participant observations among others (ibid, pp. 95). Moreover, this claim is supported by Lugano (2017, pp. 9) who claims that “the ICC’s intervention in Kenya’s 2007/2008 political crisis was framed as neo-colonialism by two of the accused – Uhuru Kenyatta and William Ruto…which was central to the accused overcoming their ICC stigma.” The institutionalisation of this ‘truth’ to form a collective memory was politically desirable for the elites in question, as it allowed them to circumvent culpability of serious crimes. Ironically, the ICC investigations, which were launched to tackle impunity, have been mobilised to fuel the very culture of impunity it was tasked to eliminate. In this case, transitional justice mechanisms have been re-articulated and instrumentalised to promote injustice. This view is supported by Mueller (2011, pp. 109) who claims that “no high-level figures in Kenya have ever been prosecuted for the increasingly deadly violence surrounding elections since the early 1990s.”

Introducing and reinforcing this discourse within the broader conceptualisation of transitional justice in Kenya worked to secure the identity and power of Kenyatta and Ruto, whilst simultaneously undermining the ICC’s legality. This narrative of ‘truth’ introduced by the political elite portrayed the ICC and the coalition of Kenyatta and Ruto as antithetical to one another (Mueller, 2011, pp. 109). As a result, whilst the political elite entrenched the notion that the ICC is a neo-colonial, divisive institution, they simultaneously propagated the idea that their coalition was one of unity, which brought together the two major ethnic groups: the Kalenjin and Kikuyu; who were bitter rivals prior to this point (Lynch, 2014, pp. 110). This view is supported by Brown et al. (2012, pp. 254) who claim that “shifting alliances by opportunistic ethno-regional power brokers have characterised Kenyan politics. Bitter enemies before one election can find themselves on the same side in the run-up to the next one”. This illustrates the argument that transitional justice mechanisms are employed not only to secure the power of incumbent leaders, but also to ensure continuity of nefarious practices, under the guise of ‘justice’ and ‘reconciliation’. Thus, transitional justice mechanisms in Kenya were manipulated by the political elite in order to deflect criticism, secure personal power for Kenyatta and Ruto as well as to acquire broad-based legitimacy and support for their ethnic patrimonial groups through the creation of an alternative ‘truth’; all under the guise of ’justice’.

The Instrumentalisation of Transitional Justice as a Strategy of Political Abjection

Transitional justice mechanisms are also manipulated by the political elite to create an enemy or an ‘other’. This tactic of vilifying, discrediting and defaming all forms of opposition is a particularly effective method of consolidating power as it allows regimes to rationalise their inequitable treatment of all those who pose a threat to their rule; whether that threat is real or simply fabricated. The instrumentalisation of transitional justice to eliminate opposition is actualised through mobilisation of the state’s version of ‘truth’. If a transitional regime has monopoly over what is considered true, the nature of justice, and of whom are the victims and the perpetrators, then they are also able to instrumentalise this ‘truth’ to demarcate outside groups or ‘others’. This strategy is evident in both Rwanda and Kenya. Both regimes have successfully delegitimised their opposition whilst simultaneously securing their power using political abjection. The term political abjection here refers to a strategy used to obliterate any opposition through defining it as a “malignant threat to the broader social and political health of the nation” (Beresford et al, 2017, pp. 2). By portraying any dissent as “actors who harbour ambitions to return these societies to past instances of mass political violence and neo-colonial relations, [t]hese individuals are said to warrant illiberal state interventions against them” (Beresford et al, 2017, pp. 2).

In Rwanda, the policy of ‘Rwandicity’ has been especially useful in eradicating all forms of dissent, whether that exists at a grassroots level or as a concrete political threat in the national arena. This policy is an integral part of transitional justice in Rwanda as it aims to foster reconciliation of the population through promoting unity by means of stigmatising and criminalising all references to ethnicity (Beswick, 2010, pp. 410). It is argued that this strategy was instrumentalised to burgeon RPF dogma. Moreover, it was not only successful in controlling the dominant population through a “collectivisation of Hutu guilt” (Thompson, 2011, pp. 378), it was also mobilised to contain any and all forms of political dissent. This argument is especially persuasive considering the sheer number of people who have been imprisoned under ‘genocide ideology accusations’, a figure that reached 912 people in 2009 (Rentyjens, 2011, pp. 16). Furthermore, prior to the 2003 elections, the Republican Democratic Movement party (MDR), the sole concrete political contender to RPF power, was abolished for “encouraging ethnic-divisions” (Rentyjens, 2006, pp. 1107). This is not merely a coincidence, but part of a broader strategy to eliminate all forms of opposition and exert authoritarian control over all aspects of life. The RPF would have been unable to wield such authoritarian power if not for the gross abuse of transitional justice mechanisms. This tactic has been incredibly successful in entrenching the RPF’s dominance as it eliminates all possibilities for a truly competitive party politics where there are programmatic differences between parties and electoral contenders; thus, allowing political leaders to retain their monopoly of power indefinitely. Moreover, the veneer of transitional justice shields the RPF regime against international scrutiny and interference which allows them to further their own agendas without restraint.

Similarly, in Kenya transitional justice mechanisms were manipulated by political elites in order to delegitimise the opposition. This was actualised on both national and international fronts. Firstly, the coalition of Kenyatta and Ruto manipulated transitional justice mechanisms to delegitimise the ICC’s investigation into the post-election violence (Lynch, 2014, pp. 105). This was politically expedient as the ICC had the potential to destroy the political careers as well as the personal lives of the politicians concerned, thus posing an existential threat to the leaders as well as the political parties they represent (Lynch, 2014, pp. 105). The political elite created, reproduced and propagated the notion of the ‘other’ in order to neutralise this menace. Dichotomous characterisations of the ICC as a neo-colonial invader and a western stooge stood in stark contrast to Kenya, a victim of colonialism, once again under attack from the same, insidious threat (Lugano, 2017, pp. 11). This argument is supported by Lynch (2014, pp. 106) who posits that Kenyatta and Ruto consciously portrayed themselves as “defenders of Kenya’s sovereignty and independence against Western interference…everything was cast as a competition between patriotic Kenyans and a patronising international community”. This dichotomy was further entrenched through characterisations of the ICC as antithetical to the Jubilee Alliance, which were widely circulated by these political actors (Lynch, 2014, pp. 106). The elite focused on the retributive nature of the ICC whilst contrasting it with promises of peace and reconciliation through restorative means under their coalition (Lynch, 2014, pp. 106). The manipulation of transitional justice mechanisms such as the ICC was integral to the success of the Jubilee Alliance. The creation of an ‘other’ was a central tenet of the coalition’s tactic of political abjection and it was highly successful as evident through the victory of the Jubilee Alliance in the 2013 elections, one which was characterised as “a referendum on the role of the ICC and its attendant neo-colonialism” (Lugano, 2017, pp. 11).

Additionally, the Jubilee Alliance utilised transitional justice mechanisms in order to vilify and defame political opponents on the domestic front. This is supported by Brown et al. (2013, pp. 253) who claims that the ICC is a useful tool to remove political rivals, both within a party and amongst opposition groups. The creation of an ‘other’ was salient in delegitimising the Alliance’s only concrete political opponent: Raila Odinga. The political elite capitalised on Odinga’s role in facilitating the ICC’s intervention in Kenya, and used this association to categorise him and the Luo minorities as ‘enemies of Kenya’. This argument is supported by Lynch (2014, pp. 109) who claims that “Jubilee effectively recast overarching narratives…regarding the ICC and Odinga, in such a way that individual and collective interests became intricately intertwined with one’s ethnic identity. The ICC’s intervention, for example, becoming not only an example of a political and biased court, but a process through which Odinga and ‘the Luo’ sought to tarnish ‘the Kalenjin’ as perpetrators, and to remove ‘the Kikuyu’ from power.” This demonstrates how transitional justice mechanisms are manipulated as part of a strategy of political abjection (Beresford et al., 2017), which in Kenya entailed creating an ‘other’ so as to firstly paint opponents as the enemy of the state and secondly to unite the rest of the population. It ought to be noted that once again, ethnic identities were mobilised for political gain, however, this time, it occurred under the veneer of transitional justice. The mechanisms which ought to facilitate reconciliation are mobilised to reignite ethnic divisions, thereby sowing the seeds of future conflict.

The Mobilisation of Transitional Justice to Indefinitely Prolong Political Mandates

Another tactic which is employed by political elites is the manipulation of transitional justice mechanisms to prolong political mandates. According to Galtung (1969, pp. 183), peace is not simply the absence of physical violence (negative peace) but also the absence of structural violence and inequalities (positive peace). Therefore, he argues that transitional justice should aim to establish positive peace in order to actualise true justice and reconciliation. However, it is argued that political elites have sought to capitalise on this extended articulation of justice to extend their political terms as well as to entrench their power and bolster their identities. Beresford et al. (2017, pp. 1) proposes a conceptual framework of ‘liminality’, which is particularly useful in examining how regimes retain characteristics of a hybrid system as a tactic to consolidate power. Hybrid democracies describe regimes where procedural elements of democracy are fulfilled whilst retaining authoritarian control over all elements of life (Heynes, 2001, pp. 12). Rwanda and Kenya both exemplify a ‘liminal state’.

Through utilising the ‘productive liminality’ framework (Beresford et al., 2017), Rwanda and Kenya, political elites have successfully mobilised liberation discourses to maintain their power and influence. Firstly, the RPF and Jubilee Alliance have disseminated their version of ‘truth’ which is later institutionalised into the collective memory of the population. This ‘truth’ claims that these parties have ‘liberated’ the population from ethnic violence and or genocide; therefore, it has been a source of peace and justice in the country. Through creation of an enemy or an ‘other’, these parties simultaneously target their political opponents whilst rationalising the implementation of extreme, authoritarian practices. Furthermore, the political elite claim that complete liberation has yet to be achieved as structural violence remains prevalent, which is then used to justify a prolonged mandate. This three-tiered strategy is particularly effective in consolidating political power, legitimating authoritarian rule and eliminating all form of dissent and opposition, thus demonstrating the degree to which politicians manipulate transitional justice articulations and mechanisms for their personal and political gain. This was apparent in Kenya in the recent 2017 election, which demonstrated that little has changed: “Voting patterns are still set up as ethnic blocks…The politics of tribe and patronage persist, political change trickles along, with little sign of a variation in the personalities dominating the space, or any shift in ideology” (Wesangula, 2017). Similarly, in Rwanda, President Kagame has held the reins of power for over 17 years and with the 2015 constitutional amendment, he is set to be in power till 2034 (Burke, 2017).

Conclusion

This essay examined the mechanisms of transitional justice adopted in Rwanda and Kenya to actualise peace and reconciliation following the outbreak of mass violence, as well as the ways in which these processes have been hijacked in order to serve personal as well as political vested interests. A constructivist theoretical framework has established that concept of justice simultaneously constructs and is constructed. Based on this analysis, this paper argues that transitional justice mechanisms ion Rwanda and Kenya have been mobilised to create, disseminate and propagate a state-sanctioned version of ‘truth’. Political regimes then endeavour to institutionalise this truth into a collective memory, ergo history, which further reinforces their power, increases their legitimacy and extends their influence. Additionally, regimes utilise transitional justice mechanisms to create an enemy or an ‘other’ in order to remove any opposition or political rivals. Furthermore, political elites often manipulate transitional justice mechanisms to prolong their political mandates as well as that of the parties they represent. The various means adopted by political elites demonstrate that transitional justice mechanisms are to a large extent instrumentalised for personal and political gain.

This paper has largely focused on the agency of political leaders in Rwanda and Kenya and their role in creating articulations of justice, which serve their vested interests. However, an area which has yet to be considered is the notion that “identities, interests and behaviour of political agents are socially constructed by collective meanings, interpretations and assumptions about the world” (Adler, 1997, pp. 324). Reflecting on this, to what extent are the actions of leaders in Kenya and Rwanda the product of individual motivation? Or is it the result of institutionalised practices?

Such questions raised in this paper are particularly relevant as transitional justice mechanisms are becoming institutionalised and reproduced sporadically across Africa as well as throughout the world. There is a very real, pervasive fear that the “the same mistakes may easily be perpetuated, in a way that bespeaks not a conspiracy of interests but a coherence of blindness” (Miller, 2008, pp. 272). Unfavourable practices and abuse of transitional justice not only serve to increase the propensity for physical violence; they also increase the prevalence of structural constraints, which undermines the core aims of transitional justice and thus jeopardises the prospects of genuine peace and reconciliation in the region. Thus, it is necessary to consider the ways in which these mechanisms are instrumentalised in order to safeguard against its abuse.

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