To many disinterested observers last week's Kenya elections seem like a victory not only for President-elect Uhuru Kenyatta, for his Jubilee Alliance, and for the Kikuyu and Kalenjin tribes represented by Kenyatta and his running mate William Ruto. But also for impunity, because both Kenyatta and Ruto are indicted by the International Criminal Court for crimes against humanity and – while they are presumed innocent until proven guilty – such overwhelming support for two people in their situation must surely be interpreted partly as a vote against international justice.
Perversely though, this might be a good result for justice both in Kenya - and internationally as seen through the prism of the ICC - and for democracy in Kenya. Because with this result, things have become more complicated, with justice and politics intertwined in a complex tangle. It is when dealing with such complexity and disentangling the various elements that one gets to the nub of and internalises the real meaning of justice in the real, political world.
- For the ICC and its international backers, dealing with the president and vice-president of a sovereign country and signatory to the ICC's Rome Statute will force it to become less lazy than in the past. Slogans will certainly not be enough to disentangle this knot.
- Kenyatta and Ruto – assuming they have at least some desire to rule with legitimacy (and knowing that many of their supporters and opponents will make ruling difficult for them if they don't) – will need to take the ICC indictments very seriously as part of their political discourse, as well as how they deal with it as indicted individuals.
- Kenyan institutions – parliament, judiciary, churches, civil society, etc. – and their leaders will be forced to consider how to deal with the fact that their president is both democratically elected and a possible human rights violator. Complicated and, again, needs more than slogans.
- The African Union and other regional and international bodies will also need to work out how they approach this delicate situation in which the head of another member state is facing trial at the ICC.
All this is going to generate tremendous debate. Much will be biased, ill-informed and ill-judged. But however events unfold, the accompanying public and private debate has the potential to deepen some Kenyan future voters' understanding of democracy and its choices and challenges; and to deepen the comprehension of us all as to how international mechanisms of justice interact with national political and justice mechanisms. Because we’ll largely have to fall back on first principles.
I have written in an earlier blog post that the democratic pendulum swings long and slow [3] – i.e. our innate understanding, as electors in a democracy, of how our democracy system works, is built over time by observing out of the corner of our eye, how the votes we collectively cast in the past lead to often long-delayed and often perverse outcomes and implications. Voters in the UK had to come to terms with extreme implications of earlier voting decisions, under Margaret Thatcher in the 1980s, which was painful, and we are no doubt learning something now, subliminally, from our current experiment with coalition politics.
This may also be such a moment in Kenya, and provided Kenyans in the elite and at grassroots avoid letting the complications they will now face lead to violence, I see the outcome of this election as potentially laying another strong foundation layer for democracy there. Because democratic values emerge from difficult times, not easy ones.
Phil Vernon, Director of Programmes