Kenya National Reconciliation Agreement negates ICC prosecutions

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BY NGUNJIRI WAMBUGU

On 28th February this year we will be celebrating the 8th anniversary of the Kenya National Accord and Reconciliation Agreement (NARA). This is the agreement that pulled Kenya back from the brink of destruction following the 2007 Post Election Violence, and that ushered in the Coalition Government that led Kenya from then, up to the 2013 General Elections.

On 28th February 2008 The Guardian captured the moment perfectly when it spoke of how Kenya’s feuding politicians today signed a power-sharing deal to end the violence unleashed by December’s disputed election. In a ceremony attended by virtually every foreign ambassador in Nairobi and carried live on Kenyan television, the president, Mwai Kibaki, and the Opposition leader, Raila Odinga, signed an agreement that Kenyans hope will end the country’s worst political crisis since independence. The two men shook hands flanked by Kofi Annan, the former UN Secretary General, who helped broker the deal. “In the spirit of partnership we can bring peace and prosperity back to Kenya,” Annan said. “Let the spirit of healing begin today, let it begin now.

NARA was developed after deep consultation across the socio-political and economic divide of Kenya, and in the presence of regional and international leaders from across the world. Behind the negotiations was an unspoken threat that if no agreement was reached the world would deal harshly with whoever was behind the 2007 PEV – whatever their reasons. This is how (and when) the International Criminal Court became part of the Kenyan lexicon. It was the ‘big stick’, waiting to be used in case the warring factions refused to agree.

The thinking behind the NARA was not just about stopping the 2007 PEV. Those behind this agreement went a step further and came up with a set of conditions that Kenya needed to fulfil to ensure PEV would not re-occur in future. These conditions were captured under four agendas items.

The first agenda was to stop the violence and restore the fundamental rights and liberties of Kenyans. This happened immediately the agreement was signed. The second agenda was the need to address the humanitarian crisis that the 2007 PEV had brought about, including settling IDPs. This required some work and became a process that has been carried out over the last eight years, and spent close to Sh20 billion. The Kenyan government is still identifying and settling IDPs, to-date. The third agenda was to resolve the political crisis that had led to the 2007 PEV. This was done and the result was the coalition government.

The fourth and last agenda item was famously referred to as ‘Agenda 4’ due to its complexity. It required Kenya to examine and bring about constitutional, legal and institutional reforms; deal with poverty and inequality; tackle youth unemployment; and implement land reforms. Despite the challenges, this too has been dealt with. The change of our constitution in 2010; the legal and institutional reforms Kenya has undergone since then; the aggressive focus on youth and women empowerment (that has led to specialized funds and the isolation of 30 percent of government business to women and youth); and the on-going land reforms (that have led to more title deeds being issued in the last three years than in all the years between 1963 and 2013 cumulatively), are all part of implementing Agenda 4.

This means that Kenya has essentially ticked every box of the NARA, even where it required our leaders to bend over backwards; so why are we at the ICC?

I believe that the trauma of the 2007 PEV left all of us; and especially our political leaders in the 10th Parliament; emotionally vulnerable. We then opened doors that allowed the international civil society industry to use Kenya as an experiment on how international justice could be leveraged to manage political transitions.

Of course some will argue that ‘we’ are not at the ICC; that it is two individuals who have been charged. However these two individuals, and the other four whose cases collapsed, were charged for crimes committed during the 2007 PEV; which was the basis around which the NARA was negotiated. To put this in context, when a similar situation occurred in Ivory Coast in 2010 President Laurent Gbagbo was offered immunity from ICC prosecution if he agreed to negotiate something similar to the NARA. Our very own Raila Odinga was part of those making the offer. Gbagbo refused. Today he is charged at the ICC.

Kenya fulfilled every part of the NARA agreement. We must now move away from this ICC situation. It was mistake we allowed to happen, in a moment of weakness. So on February 28th this year let us hold a national forum to audit the National Accord and Reconciliation Agreement; invite all the players of the 2008 event including Kofi Annan; and then together, close this chapter of our history.

(Wambugu is the Director of Change Associates, a Political Consultancy)

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