Legacies of Colonial Violence in Contemporary Transitional Justice: Memories of Mau Mau, the ‘Kapenguria Six’ and the ‘Ocampo Six’ in Kenya (2024)

ABSTRACT∞

INTRODUCTION

Although the nexus between contemporary conflict and colonial crimes may appear far removed, this article will demonstrate that the memories of colonialism and desire for justice for colonial-era atrocities remain relevant in Kenya and potentially in other post-colonial contexts. There is a continuity between the past and the present, and the ICC trials of those implicated in Kenya’s 2007–2008 post-election violence present a compelling example of the impotency of transitional justice against a backdrop of violent colonial legacies. The memories of colonialism in Kenya deeply coloured public debate surrounding the Kenya ICC trials. It is argued that in the post-colonial context, the idea of justice and who administers justice may be contested. This is especially the case where states have not self-referred or voluntarily submitted themselves to the jurisdiction of international criminal mechanisms.1 Although the Kenya cases before the ICC are unique in many ways, they provide an interesting example of wider debates surrounding the skewed application of international criminal law and the limits of transitional justice. The Kenya cases illustrate the inherent hypocrisy present in the operation of international criminal law as a transitional justice mechanism, vis á vis the lack of accountability for gross and systematic acts of colonial violence, such as genocide, crimes against humanity such as apartheid, slavery and so on, and war crimes on the African continent. The colonial legacies of the British, French, Portuguese, Germans, Spanish and Belgians in Africa were marked by the subjugation, exploitation, discrimination, disempowerment, disenfranchisem*nt and expropriation from almost all native populations. These circ*mstances are further exacerbated by globalizing neo-liberalism and other forms of neo-colonialism that continue to have an impact in Africa. Furthermore, given that the genesis of modern conflict in many African countries have their roots in colonial constructs of ethnic identity, colonial-era land distribution policies and historical forms of exploitation and extraction including slavery, it is important to be cognizant that these forms of structural violence permeate all forms of contemporary transitional justice. Consequently, the lingering afterlife of colonial violence leaves an indelible mark on affected societies, and transitional justice mechanisms such as the ICC can potentially be impacted by these violent legacies. The ICC Kenya cases present a compelling example of the inherent hypocrisy in the application of international criminal law and the potential for contestation where there is no genuine accountability, redress or reparations for colonial crimes.

MAU MAU, KAPENGURIA AND THE OCAMPO SIX

Mau Mau

By the 1930s in colonial Kenya, land had become a key political grievance. The 1915 Crown Land Ordinance authorized legal limitations to nonwhites on ownership, acquisition, management and other matters involving land in the Kenyan highlands.2 In 1926 the British created ‘African reserves for each of Kenya’s ‘tribes,’ leaving the so-called ‘White Highlands’ solely for Europeans.’’3 Existing African land rights in these areas were voided, either with or without compensation. The alienation of the White Highlands meant that the Kikuyu population was reduced to tenant farmers and the number of squatters on the allocated Kikuyu reserves began to grow, resulting in widespread disaffection amongst the community.4

Enmity towards the colonial government reached its peak following the 1937 Resident Native Labourers Ordinance which only allowed squatters to farm one acre per wife and restricted the keeping of cattle, as Green notes: ‘[T]his move was bitterly resented, attacking as it did not only the opportunity to acquire wealth, but the traditional means, through livestock, of converting it into status.’5 According to Kanogo, the grievances of Kikuyu squatters played a key role in the emergence of Mau Mau or the Kenya Land and Freedom Army (KLFA), as squatters ‘became easy targets for political mobilization.’6

Mau Mau ‘[M]ilitancy grew around specific issues, each of which gradually came to be connected through political mobilization.’7 The ‘central tenets of Mau Mau ideology were “land” and “freedom”. “Land” symbolized a range of economic grievances and claim to the whole of Kenya.’8 In October 1952, the colonial British government declared a state of emergency and began a four-year military campaign against the Mau Mau. During the Mau Mau rebellion against the British colonial administration, 32 European civilians were killed in Kenya by Mau Mau and 26 were wounded.9 In contrast, 1,819 African civilians were killed by the Mau Mau for being so-called ‘loyalists’ who supported the British administration and opposed the Mau Mau.10

Elkins notes that ‘[F]rom the start of the Emergency the colonial government was masterful in its depiction of Mau Mau.’11 The ‘British myth of Mau Mau’ was disseminated through a wide variety of media sources, including ‘official press releases, government reports, newspaper articles, nonfiction studies, personal narratives and novels.’12 British propaganda demonizing Mau Mau played on familiar tropes of African ‘barbarism’ and ‘savagery.’ Undoubtedly, violence perpetrated by Mau Mau was very real, for example the Lari massacre where 97 people were killed, including the families of those loyal to the colonial government.13 However, propaganda surrounding the oathing practices was particularly aimed to be sensationalist, attesting to the savage and cruel nature of Mau Mau. Clough notes that prior to 1963 the narrative of Mau Mau ‘had been controlled by its enemies’ and therefore, according to the British, ‘the revolt was an atavistic eruption of “African savagery” rather than a legitimate response to real grievances,’ with its attendant ‘sensationalist images of terror; lurid descriptions of “oath rituals” and massacres …’14 For the British colonial authorities, Mau Mau

was characterized by racial otherness, as an assault against the European values of the present and as a barrier to any African civilization that might be built in Kenya in the future.15

The Mau Mau oath captivated the colonial authorities and ‘lay at the heart of colonial myth-making,’ whilst they conveniently chose to ‘ignore the legitimate socioeconomic origins of the insurrection and instrumentality of oathing.’16

[The] war against Mau Mau was fought not just by the military, or by the police, but the civil administration, in a pervasive campaign that sought to strip the rebels of every possible human right …17

Unofficial estimates put the number of deaths of Mau Mau caused by the British colonial administration between October 1952 and January 1960, when the state of emergency ended, at between 20,000 and 30,000 people.18 Kenya’s courts sentenced 1,499 Kikuyu to death and ‘the British hanged 1090 Kikuyu men for Mau Mau offences.’19 Detention camps reminiscent of Soviet Gulags were constructed by the British to house Mau Mau detainees and convicts. In December 1954 the daily average number reached a peak figure of 71,346, of whom 8,000 were women, and they ‘were interned in a variety of prisons, detention camps, work camps and district camps.’20 Torture, both systematic and ad-hoc, was perpetrated against detainees. Detainees were subjected to arbitrary killings, severe physical assaults and extreme acts of inhuman and degrading treatment. The acts of torture included castration and sexual assaults which, in many cases, entailed the insertion of broken bottles into the vagin*s of female detainees.21 From 1954 to 1960, the British detained approximately 8,000 women under the Emergency Powers imposed to combat the Mau Mau rebellion, including in Gitamayu, a camp for ‘hardcore’ female detainees.22

The British colonial authorities deliberately refrained from calling the insurgency a ‘war’ or ‘conflict’ in order to prevent triggering the provision of rights under the Geneva conventions or international conventions on forced labour.23 As Pringle notes,

From the beginning of the Mau Mau rebellion, the ICRC highlighted the difficulties they would have in appearing as a neutral or impartial body, should they decide to play their traditional role, because of colour differences, colonial politics, and questions about the psychological stability of Africans.24

Undoubtedly, the crimes committed by the British colonial authorities against the Mau Mau and the general Kikuyu, Meru and Embu population would be termed as war crimes and crimes against humanity under the Rome Statute of the ICC. Even though the Nuremberg and Tokyo trials took place in 1945–1946 and Kenya remained a colony from 1901 to 1960, as Nielsen notes, ‘[C]olonial violence continued to be excluded from the ambit of individual criminal responsibility under international law.’25 Hundreds of thousands of Kenyans were displaced and dispossessed during Britain’s administration of Kenya as a colony, and thousands were hanged, interned, tortured and imprisoned in concentration camps as suspected Mau Mau. The violence committed against the indigenous population during the struggle for independence was arguably war crimes and crimes against humanity, for which there has been little accountability or redress.26 Indeed, ‘[C]onflicts in Africa, particularly in the colonial context or stemming from decolonization, had not … been the subject of international criminal law.’27 The following sections will demonstrate how the failure to address colonial crimes during this period with full accountability and recognition of those implicated continues to have enduring repercussions in Kenya to date and arguably impact upon transitional justice mechanisms such as the ICC.

The Kapenguria Six and the Ocampo Six

In Kenya’s most infamous historic trial relating to Mau Mau, the British colonial government charged six nationalists, including Jomo Kenyatta, Uhuru Kenyatta’s father and the first president of Kenya, for their alleged role in supporting the Mau Mau. Kenyatta and his five other co-accused were tried in a small town close to Kitale called Kapenguria. The trial popularly became known as the trial of ‘The Kapenguria Six.’ The six were high-profile Kenyan nationalists, Bildad Kaggia, Kung’u Karumba, Jomo Kenyatta, Fred Kubai, Paul Ngei and Achieng’ Oneko, all prominent members of the Kenya African Union (KAU) party formed with the aim of advocating a peaceful transition to African majority rule. Jomo Kenyatta, President of the KAU,

was accused of organizing Mau Mau through his leadership of the KAU, of having stimulated and led the oathing campaign, and even of having been present at an oathing ceremony, and of having preached the gospel of Mau Mau violence to his followers in several public meetings.28

In a highly prejudicial trial, where ‘[T]he evidence was thin, the charges were untrue, and Kenyatta denied them all,’29 he and the five others were found guilty and imprisoned by the British colonial authorities, and spent seven years in prison.

Sixty-five years later, on 15 December 2010, the first Prosecutor of the ICC, Louis Moreno Ocampo, indicted six Kenyans for allegedly orchestrating the 2007/2008 post-election violence in Kenya following the 2007 presidential elections. The incumbent President Mwai Kibaki of the Party of National Unity (PNU) was in a tight race against Raila Odinga of the Orange Democratic Movement (ODM). Despite early results demonstrating Odinga’s near-unassailable lead, on 30 December 2007 the Electoral Commission of Kenya declared Mr Kibaki the winner. ODM and Odinga declared the election stolen and mass protests broke out across the country, some of which turned violent. Violence was also systematically organized and perpetrated against people of specific ethnicities based on their perceived political affiliations. The ICC focused on specific crimes against humanity, including acts of murder, rape, arson, forced displacement, looting and willful destruction of property around the towns of Eldoret, Nakuru and Naivasha.30

Following the failure to set up a domestic tribunal in Kenya to prosecute the perpetrators of the violence, the ICC Prosecutor proprio motu brought charges against William Ruto, Henry Kosgei and Joshua Arap Sang for the crimes against humanity of murder, forcible transfer and persecution committed against PNU supporters in Eldoret and its surrounding areas.31 In the second case, the Prosecutor brought charges against Uhuru Kenyatta, Francis Muthaura and former police commissioner Muhammed Hussein Ali for the crimes against humanity of murder, forcible transfer, rape, persecution and other inhumane acts committed against ODM supporters, partly in retaliation to attacks against the PNU supporters.32 The ICC Pre-Trial Chamber confirmed charges against four of the suspects, namely William Ruto, Joshua Arap Sang, Francis Muthaura and Uhuru Kenyatta, but decided not to confirm charges against Henry Kosgey and Muhammed Hussein Ali.33

Ocampo’s decision, although completely unintentional, to indict six Kenyans alleged to be most responsible for the post-election violence and to release their names at the same time allowed for connections to be made between the Ocampo Six and the Kapenguria Six by the Kenyan media. In fact, the Ocampo Six did not have to stand trial for long.34 Six years later both cases were terminated amongst allegations of witness interference and a lack of cooperation from the Kenyan government by the Prosecution in the Kenyatta case. The Trial Chamber, in response to an application from the Prosecutor, found that Kenya had failed to comply with its obligations to cooperate with the Court under Part 9 of the Rome Statute of the ICC.35 Following the collapse of the Kenya cases, an Expert Report raised highlighted several failings in the investigations carried out in Kenya by the ICC’s Office of the Prosecutor (OTP).36

It is argued here that the outcome of the Ocampo Six trials was intimately linked to popular memory of the iconic Kapenguria trial and the struggle of Mau Mau freedom fighters, a resonance that was intentionally and powerfully exploited in the public narrative. The following section will highlight how memories of Mau Mau and the Kapenguria Six trial were weaponized in Kenya in order to build public opposition to the ICC trials.

WEAPONIZING MEMORIES OF MAU MAU AND KAPENGURIA

Creating Modern-Day Freedom Fighters Out of ‘UhuRuto’

Memory is often a subjective construction of the past and ‘[t]hough past events are immutable, their significance and interpretation by subsequent generations are not.’37 Although two distinct concepts,38 myth and memory are clearly linked and, as Stråth states, ‘[m]yth and memory is history in ceaseless transformation and reconstruction.’39 According to Bultman, myth is the expression of ‘man’s understanding of himself in the world in which he lives.’40 Ronning states that ‘mythology is that which we do not think is necessarily true, whereas memory is thought to be more precise.’41

It is no surprise then that the past can be constructed not as a fact but as a myth in order to satisfy the interests of a particular community.42 The revision, appropriation or invention of memory can allow a certain person or groups to sustain relationships of power.43 According to Anderson, national historical memory can be a ‘narrative of identity’ that involves selective forgetting as well as a kind of creative remembering.44 The coincidental fact that there were six ICC accused persons, combined with the Kenyan media’s framing of them as the ‘Ocampo Six’ and this term’s historical link to the injustice of the ‘Kapenguria Six’ trial, allowed for a reimagining of the ICC accused persons as persecuted ‘heroes’45 within the public discourse and enabled them to become viable contenders for the 2013 Kenyan presidential elections.

In 2013, two years after charges had been confirmed against them by Pre-Trial Chamber II of the ICC, Kenyatta and Ruto or ‘UhuRuto’ as they were referred to in their campaign messaging, merged their respective political parties and formed the Jubilee Alliance party in a bid to compete in the general elections, running for President and Vice-President respectively. UhuRuto’s status as ICC accused persons, instead of damaging their credibility as electoral candidates, appeared to have the opposite effect amongst the Kenyan populace, propelling them to almost martyr status with the result that they won the elections by a slim margin of 50.07 percent.46 Indeed, support for the ICC was at around 68 percent in October 2010 but dropped to 39 percent by June 2013.47 As Maingi notes, UhuRuto as a political outfit ‘was a new type of state populism that shaped the coalition’s government’s official and informal attitude towards Kenya’s human rights cases at the ICC.’48 However, to understand how the public discourse surrounding the ICC cases changed from a message of ‘no to impunity’ to a potent narrative of UhuRuto’s victimization by a ‘neo-colonial’ court engaged in ‘race-hunting,’49 it is necessary adopt a longue durée perspective of violence in Kenya, and to take into account racially rooted colonial violence.50 A compelling political narrative took root within the media, and the ICC was portrayed as ‘an anti-African, colonial and western institution.’51

For example, on 8 April 2011, shortly before the first appearance of the Ocampo Six in The Hague, the Daily Nation newspaper in Kenya published an article entitled ‘Mama Ngina’s Sense of Déjà Vu, 59 Years Later.’52 The article was accompanied by a picture of Uhuru Kenyatta embracing his mother, former First Lady of Kenya and Jomo Kenyatta’s widow, Mama Ngina Kenyatta. The introductory text was as follows:

Son Uhuru’s journey to The Hague brings back memories of 1952, when her husband was arrested … It was a picture that provided one of the most poignant images in the run-up to the departure for The Hague.53

The article further states that

… the past few weeks must have brought back a sense of déjà vu for Mama Ngina. Though The Hague in the Netherlands might be miles away from colonial power Britain, the cause of her grief 59 years ago, the parallels are strong in her mind.54

It goes on to state:

[T]he accusations come 59 years after her husband was taken away from her on accusations of being a member of the Mau Mau movement, then the terror of the British colonialists.55

The article asserts that Uhuru’s departure for The Hague is possibly her greatest grief since the death of Jomo Kenyatta, ‘the Founding Father of Kenya,’ noting that Mama Ngina’s address ‘dwelt on the dominant theme of the day; that the charges against her son and five other Kenyans were politically manipulated and marked the return of colonialism.’56 Although the article admits that comparisons between the two are ‘wildly exaggerated,’ it presents an excellent example of the politicized rhetoric that surrounded the ICC indictments.

In 2013, prior to the presidential elections, a Facebook post was widely circulated on various social media platforms, juxtaposing a picture of the Kapenguria Six with the Ocampo Six, with the caption ‘History Repeated?’ This is significant evidence of the historicizing agenda, as charges had only been confirmed against four of the six suspects, so in effect there was no longer was an ‘Ocampo Six’ but an ‘Ocampo Three’ after the charges against Francis Muthaura were withdrawn by the Prosecutor.57 Nonetheless, an association between the Ocampo Six and the injustices related to the Kapenguria Six trial was created within popular discourse. Clarke agrees with this assertion and points out Uhuru’s indictment by the ICC was portrayed ‘as a historical continuity of Jomo Kenyatta’s political struggle for independence against imperial rule.’58

Twitter, WhatsApp and Facebook were all mobilized in order to support the two candidates, as well as for the purposes of ‘direct and indirect attacks against leading opponents and associated “enemies.”’59 Mwangi argues that the UhuRuto campaign made use of ‘social facts,’ including ‘political persecution,’ ‘sovereignty’ and ‘peacemaking,’ in order to delegitimize the ICC’s intervention in Kenya and win the 2013 election.60 The ICC ended up becoming a key deciding factor in 2013, and made a hugely ‘significant contribution to the formation of electoral coalitions contesting the 2013 elections.’61 Indeed:

[T]he use of emotive discourse in campaign strategies of Kenyatta and Ruto prior to and after the formation of the Jubilee Coalition effectively achieved the objective of portraying the ICC indictments as political persecution.62

Thus the use of anti-Western rhetoric linked to historical wrongs was able to convince a large number of Kenyan people who initially supported the ICC investigations that the ICC was ‘an institution of foreign interests and a threat to national sovereignty.’63

According to Mwangi, UhuRuto’s campaign messages focused on the spectre of a ‘neo-colonial court imposing alien values on the county’ and ‘[i]t’s legal instruments were accused of being in a tradition that had long perpetuated colonial injustice.’64 In this way, Kenyan elites ‘encouraged popular attitudes that saw adherence to such international norms as a form of subordination of the nation.’65 The ICC was presented as a site of injustice and the indictees ‘needed to be saved from a political court working at the behest of Odinga and his Western allies.’66 Lynch similarly agrees with this reframing of the ICC story ‘as a performance of injustice, neo-colonialism, and threat to the country’s sovereignty, peace and stability.’67 Mueller suggests that the ICC was effectively demonized, with the result that it became ‘acceptable for citizens to vote for two ICC indictees.’68 However, key to this message was the evocation of memories of colonial crimes against the Mau Mau and the Kapenguria Six, and their supposed parallels with the ICC cases. Uhuru Kenyatta himself did not shy away from directly making comparisons between his indictment by the ICC and the suffering of freedom fighters, including Mau Mau during Kenya’s independence struggle.

The following are relevant excerpts from Uhuru Kenyatta’s Mashujaa or ‘Heroes’ Day speech on 20 October 2013:69

Colonialism had stripped all Kenyans of their fundamental rights. They had no land, and were considered inferior in their own home. There was neither dignity nor freedom for Kenyans then. Our forefathers waged a struggle of conviction and principle, supported with no resources except the burning fire of humiliation and the indefeasible yearning for independence and respect.70

Many took up armed struggle in the forests,71 as others formed and led movements for the civil agitation for independence. The colonial reaction was repressive and brutal.

Our forefathers rejected colonialism and imperial domination in their time. We must honour their legacy, and stay true to our heritage, by rejecting all forms of domination and manipulation in our time. Let us confront without flinching those external forces seeking to thwart our collective aspirations. They may be powerful and rich, but so were the colonists. They may disrespect and even hate us; we have defeated their ilk before. The struggle to defend our independence is a daily calling for all Kenyans, and all the people of Africa.72

Furthermore, at a speech made before the African Union (AU), Kenyatta stated:

These interventions [the ICC trials] go beyond internal interference with the affairs of a sovereign State. They constitute a fetid insult to Kenya and Africa. African sovereignty means nothing to the ICC and its patrons.73

He further described the ICC as ‘a toy of declining imperial powers’ engaged in ‘race hunting’74 during the same speech.75 Kenyatta’s speeches made strategic use of anti-colonial discourse, calling on collective trauma and shared colonial legacies to push an agenda of shared persecution between himself and Kenyan/African freedom fighters. In relation to Uhuru’s Heroes Day (formerly ‘Kenyatta day’) speech above, Clarke argues that the speech shows us how ‘substantively disjunct histories can be made real through the iconic construction of Jomo Kenyatta as hero and freedom fighter, and … Uhuru Kenyatta as inheritor of that iconic meaning.’76 In this way, Kenyatta was able to ‘liken his judicial indictment by the ICC to his father’s indictment by the British colonial government in Kenya’ and make a connection between ‘the brutality of the colonial past to contemporary international law domination.’77

DECONSTRUCTING THE MYTHS

Myth-Making and the Politics of Memory

The usage of the history of Mau Mau in Kenya is not new, and according to Atieno-Odhiambo: ‘[F]or four decades, Mau Mau has been the conjuncture around which Kenya’s pasts and Kenya’s possible futures have been debated, contested and fought over,’ arguing that members of the elite have sought to control Mau Mau in order to determine what should be remembered and for their own political claims.78 Arguably, the most recent iteration of the use of memories of Mau Mau was the juxtaposition of the Kenya ICC trials and the Kapenguria Six trial.

Jomo Kenyatta was a moderate and conservative nationalist leader and Chair of the Kenyan African Union (KAU), and by his own admission during the Kapenguria trial he was not the leader of Mau Mau. The KAU ‘never attracted widespread popular support. In Nairobi, it was the party of younger, educated Africans, who sought reforms within the colonial system.’79 Rather, at that time, the African Workers’ Federation was ‘the most important manifestation of popular political consciousness.’80 In 1947 when the Federation announced its decision to hold a general strike, Jomo Kenyatta dissociated the KAU from the strike, leading the Federation to slowly lose ground afterwards.81

Kenyatta’s disassociation with the Mau Mau was made even clearer after his release from prison: ‘Mau Mau was a disease which had been eradicated and must never be remembered again.’82 When asked about Mau Mau at a rally after his release from prison, he stated ‘We shall not allow hooligans to rule Kenya.’83 As Lonsdale notes, ‘[B]y criminalising Mau Mau once more in the public mind, as he had tried a decade earlier, Kenyatta reasserted his authority to remake Kenya.’84 Kenyatta’s government focused on highlighting the evils of the colonial system, giving ‘generic recognition of everyone who had struggled against colonialism’ and glorifying Kenyatta as the sole martyr of the independence struggle ‘whose sufferings represented pain inflicted on all the people of Kenya …’85 Clough points out that Kenyatta was simply being true to his roots given that he ‘was no natural sympathizer with radical politics or populist rebellions.’86 Analogous to the colonial authorities, Kenyatta’s government ‘was determined … to crush the Mau Mau as a movement, by disorganizing and atomizing its elements.’87

However, the Kenyatta government’s aversion to Mau Mau shifted somewhat in the 1970s, recognizing their contribution to independence, but this was only in order to ‘counter the class-based challenge of Kaggia [member of the Kapenguria Six] with an appeal to Gikuyu [Kikuyu] solidarity ….’88 Overall, the voices of Mau Mau remained muted under Kenyatta, and the ‘history of the anti-colonial rebellion was largely silenced in national debate in Kenya during the presidencies of Jomo Kenyatta (1963–1978) and Daniel Arap Moi (1978–2002).’89 Mau Mau remained a proscribed organization until 2003 when former President Mwai Kibaki lifted the ban on Mau Mau as an organization.

Jomo Kenyatta was also personally responsible for the destruction of Mau Mau forest camps post independence.90 Indeed, two of the last Mau Mau leaders, Baimungi and Chui, were killed in a ‘dawn swoop on the forest’ in January 1965, whilst the others were taken to Kamithi prison.91 Whilst Angelo argues that:

Kenyatta’s direct implication in Baimungi and Chui’s deaths will probably never be proved or disproved. Orders to disperse Baimungi’s camp and eventually to arrest the ‘General’ did, however, come from the highest echelons of the government.92

Analogous to the colonial authorities, Kenyatta’s government ‘was determined … to crush the Mau Mau as a movement, by disorganizing and atomizing its elements.’93

Furthermore, Jomo Kenyatta’s policies were very much an extension of the colonial state he had fought against, as they related to the distribution of land.94 As noted by the Kenyan Truth, Justice and Reconciliation Commission (TJRC), under Kenyatta ‘Kenya soon returned to a command and control leadership model strikingly similar to that of the colonial era.’95 There existed a continuum between the colonial and postcolonial Kenyan state and according to Githuku ‘independence was but a pyrrhic victory that barely masked the colonial character of the new state and its politics.’96 Kenyatta’s pro-capitalist and pro-Western regime took deliberate steps to distance itself from former freedom fighters, ‘while settling thousands of landless peasants (mostly Gikuyu, but not necessarily ex-Mau Mau) on subdivided farms purchased from outgoing European settlers.’97

The Kapenguria Six vs the Ocampo Six

Legally, there are few similarities between the ICC prosecution against the Ocampo Six and the prosecution of the Kapenguria Six. The charges brought by the ICC Prosecutor were specific and based on evidence obtained from impartial investigations. On the other hand, the Kapenguria trial was beleaguered with irregularities, false testimony and bribery. Uhuru Kenyatta was charged with command responsibility with respect to specific crimes against humanity that took place during the post-election violence, whereas the Kapenguria Six were charged with belonging to a proscribed organization.

According to the ICC Prosecutor, Kenyatta had allegedly been associated with the Mungiki98 since the year 2000, and in 2002 they supported his Presidential election campaign, providing him with ‘security on the campaign trail.’99 According to witnesses for the ICC prosecution, his connections with the Mungiki organization allowed Kenyatta to engage them in order to carry out the attacks in Nakuru and Naivasha.100 Furthermore, according to the Prosecution, attempts were made to suborn several key witnesses, allegedly by a Kenyan lawyer working for the Kenyatta defence team.101 The Prosecution contended that at each stage of the judicial process, Kenyatta’s intermediaries allegedly attempted to bribe witnesses to shield Kenyatta from responsibility for his role in the post-election violence.102

Thus, the crimes alleged to have been committed by Kenyatta were clearly articulated by the ICC Prosecutor, unlike the crude and unsubstantiated charges laid against the Kapenguria Six by the British colonial authorities. Furthermore, the ICC trials were terminated with due process afforded to all the accused persons. As Elkins observes in relation to Kapenguria, the evidence provided no legal basis for the conviction entered ‘[B]ut this was Kenya, and the system of justice accorded to Africans had been a travesty for years.’103 Witnesses for the prosecution were also provided with ‘healthy financial incentives’ in exchange for their false testimony.104 One witness for the prosecution, Rowson Macharia, testified that he had been present when Kenyatta administered the Mau Mau oath in Kiambu, but subsequently conceded that the time period in question was prior to Mau Mau being a proscribed organization. He further stated that Kenyatta had testified before the Carter Land Commission in 1932, when in fact Kenyatta was not present in Kenya at that time.105 However, none of these inconsistencies posed a problem for Magistrate Ransley Thacker.106 Furthermore, the Judges on appeal, despite protestations from the defence for the Kapenguria Six, accepted a letter signed by Kenyatta as leader of the Kikuyu Central Association (KCA) to prove that ‘the Mau Mau Society was either an offshoot or a reincarnation of the KCA.’107 The Magistrate also relied on evidence of events that took place before the Mau Mau was declared a proscribed organization.108 As Anderson notes, ‘… the Crown simply piled up “the facts” on Kenyatta’s links with Mau Mau. None of the evidence was strong, and little of it was coherent.’109 More damningly, Magistrate Thacker was bribed by the Governor of Kenya in order to secure a conviction of the six accused persons.110 Nonetheless, Kapenguria was used as a site of injustice and a familiar historical totem to explain the ICC as a type of neo-colonial ‘bogeyman’ with the sole aim of unjustly prosecuting Kenyan political leaders. However, a simple legal analysis of the facts of the two cases makes it clear that they were not comparable in any manner.

COLONIAL LEGACIES AND THE LIMITS OF TRANSITIONAL JUSTICE

Colonial Legacies and Structural Violence in Transitional Justice

The ICC does not exist in a vacuum. Racial, structural, economic and global inequalities form the overarching backdrop against which international criminal prosecutions take place. The Kenya cases demonstrate that colonial violence retains an indelible mark on the present, especially when left unaddressed.

The ICC has emerged as the default transitional justice mechanism to deal with conflict in Africa and this ‘has led to the denudation of the ICC’s popular legitimacy within some countries, paradoxically augmenting the power of impugned local leaders.’111 The ICC has also laid itself open to being criticized as an imperialist neo-colonial court given its lack of awareness of the contexts in which it operates and its embeddedness within the liberal peacekeeping paradigm which tends to promote a liberal western sense of superiority and righteousness regarding conflict and who should be prosecuted for violence.112

Of the 31 cases before the Court to date, all the accused persons are from African countries. ICC judges have issued 37 warrants of arrest and nine summonses to appear, all against African persons.113 Of the 17 situations that are under investigation by the ICC, only seven relate to non-African countries, fostering ‘the perception that the ICC represents a European court for Africans.’114 The global asymmetries of power between states means that the reactions and responses to violence in Africa have been different from those to violence in other parts of the world. Mamdani characterizes this as the ‘legal normalization’ of certain types of violence, giving examples of western counterinsurgency interventions in Libya, Iraq and Afghanistan.115

In addition, international criminal tribunals have a tendency to ‘flatten structural causes of atrocity and elevate individuals as autonomous moral agents.’116 Structural violence in numerous African states is a manifestation of deep-seated colonial legacies. For example, colonial inheritances such as the way state power is exercised, ethnic constructs, the arbitrary imposition of land borders, capitalist economic structures, colonial-era land distribution policies, extraction and exploitation of natural resources and slavery arguably form the backbone of numerous conflicts in Africa. Consequently, this form of structural violence continues to engender inequalities in the present and permeates all forms of contemporary transitional justice in Africa. Clarke notes that:

[D]uring the scramble for Africa, Western powers dictated mineral and resource extraction. Over time, the colonization process led to the creation, institutionalization, and exacerbation of various ethnic or religious tensions that persist today.117

For example, in Sudan, the ICC Prosecutor’s request for authorization to commence investigations in Darfur was criticized for being silent about the ‘discriminatory nature of the colonial system that reorganized Darfur [as] a patchwork of tribal homelands,’ sanitizing this colonial legacy as traditional,118 where ‘colonialism turn[ed] into a benign tradition.’119 In the DRC, it has been argued that the ICC should be re-purposed to address structural violence and colonial legacies.120

Furthermore, the narrative of a ‘neo-colonial’ court also had significant public appeal as a result of the feeling that countries like Britain and the West more generally have never really relinquished their hold on former colonies such as Kenya. Globalization is buttressed by the ideology of neoliberalism and is market driven, fueled by profit-making activities and serving corporate ends. Globalizing neoliberalism in African and beyond has resulted in as distributive inequality, economic violations and stagnation of the middle class.121 Furthermore, structural adjustment programmes devised by the World Bank and the International Monetary Fund (IMF) in Africa have had an adverse effect on African economies and societies.122 Therefore in Kenya political actors had a very fertile ground of grievances to be exploited which were not limited to colonial-era grievances but also encompassed the current power imbalances between Kenya and Britain. As Rolston and Aoláin highlight:

the colonial decouplings that took place in the era of decolonialization were often deftly negotiated by the European states which replaced the yoke of overt colonial mastery with the subtler (but no less effective) neo-colonial empire of economic dependency, trade relationships, military subvention and ongoing legitimacy through political recognition in regional and global clubs.123

The Limits of Transitional Justice

As highlighted in the first section of this article, egregious human rights violations, crimes against humanity and war crimes were perpetrated against suspected Mau Mau by the British colonial administration, yet there has been little redress for most of the survivors, many of whom are no longer alive. This raises concerns regarding the selectivity of transitional justice in that ‘[i]nternational law was not concerned with atrocities committed within states by colonizing powers …’124 The contradiction exposed by UhuRuto and which resonated with people not only in Kenya but across the African continent was the double standard present in the exercise of transitional justice. Indeed, the success of UhuRuto’s rhetoric against the ICC demonstrated that the memories of colonialism and desire for justice for colonial-era atrocities remain relevant in Kenya, and possibly in other postcolonial contexts.125 As Clarke notes, ‘[T]heir [UhuRuto’s] election campaign tapped into various emotional sensibilities related to anticolonial struggle and postcolonial Pan-Africanism in order to mobilize the sympathies of the Kenyan people.’126

The colonial crimes at the heart of the Mau Mau uprising were international crimes that had already been articulated in the Geneva Conventions and the precedent set by the Nuremberg and Tokyo Tribunals. The use of transitional justice to address colonial legacies has been considered by scholars and utilized in several instances. The Truth and Reconciliation Commission established in Canada in 2015 which aimed to address the negative legacy of Indian Residential Schools, the Namibian Government’s pushing for a settlement of €1.1 billion with regards to the genocide of the Herero-Namba committed in the early 20th century127 and even the case filed by the KHRC against the British Government in relation to the torture of Mau Mau are but a few examples of pursuing transitional justice for colonial crimes.

However, there is a marked reluctance from former colonial states to address crimes that occur in their colonies. Furthermore, the comparison between the Kapenguria Six and Ocampo Six illustrates a vivid lack of historicity in transitional justice mechanisms such as the ICC. As Rolston and Aoláin highlight:

Violence is often seen as singular rather than a connected set of phenomena. There is a lack of historicity in the understanding of cycles and causes of violence that infects transitional justice …128

In East Timor, the transitional justice process focused only on human rights abuses during its Indonesian occupation, and not those carried out by the Portuguese. The South African Truth, Justice and Reconciliation Commission’s temporal scope was also only limited to the period following the rise of the National Party in 1948, and not that during Dutch and British colonial exploitation.129 According to O Yusuf:

adoption of the colonial template of governance by successive postcolonial governments in Nigeria has limited the ambit of transitional justice, rendering it incapable of addressing the root causes of systemic abuses and conflict in the country.130

The limits of transitional justice in addressing colonial crimes are glaring, and it:

has to date not managed to adequately incorporate redress for colonialism in its repertoire and overwhelmingly fails to account for the long reach of colonialism of what constitutes the ‘to and from’ transition.131

Nielsen has argued that colonial conflicts have been systematically excluded from international criminal law and gives the example of the International Criminal Tribunal for Rwanda (ICTR), where there was no scope ‘for the ICTR to examine the colonial roots of violence and conflict.’132 Moreover, debate regarding accountability for colonial crimes is often shut down in international fora for being time barred or too remote in time to warrant even an apology or reparations. Furthermore, the failure of transitional justice to deal with structural violence has been well articulated; in addition, its focus on a ‘specific and usually recent time frame’133 also restricts its applicability and utility in addressing colonial crimes. Of course, the ICC’s temporal mandate ensures that it is unable to consider international crimes that took place prior to 2002. However, this does not mean that other transitional justice mechanisms cannot be considered, such as litigation, truth commissions, acknowledgement and memorialization, as well as reparations. Others have questioned the utility of transitional justice altogether. For example, Jamar argues in the context of the Burundian Truth and Reconciliation Commission that colonial durabilities ‘are reproduced in response to colonialism and mass violence through epistemic supremacy contained in Western-centric approaches.’134 In fact, the ‘coloniality’ of transitional justice engenders the reproduction of colonial systems and ‘inflicts further epistemic violence.’135 In Kenya, campaign messaging, speeches and media narratives were able to effectively manipulate people’s desire for justice in relation to colonial-era crimes and their attendant structural inequalities, appropriating the discourse of reattribution and reassigning blame.136 Unfortunately, statutorily the ICC remains ‘compressed and dehistoricized, bounded by temporal jurisdiction’137 and the Kenya cases have demonstrated the detrimental impact of this dehistoricization.

CONCLUSION

In the postcolonial Kenyan context, the idea of justice and who administers it continues to be contested. Memories of Mau Mau were weaponized as a tool of contemporary politics by the Kenyan media and Kenyatta. Arguably there are few similarities between the Ocampo Six and the Kapenguria Six. This article attempted to deconstruct the myths relied upon within public discourse and the misappropriation of memories of Mau Mau. The populist manipulation of public memory was so successful because it was able to tap into colonial-era grievances in Kenya and the over-mythologized Jomo Kenyatta as the singular hero of the independence struggle. Transitional justice mechanisms such as the ICC exist on a temporal continuum between the colonial past and a postcolonial, neoliberal present. The comparison between the Kapenguria Six and the Ocampo Six illustrates a vivid lack of historicity in transitional justice mechanisms such as the ICC and a lack of understanding of structural violence. In Kenya, it was observed that international criminal trials as a form of transitional justice may be contested for as long as there is no genuine accountability, redress or reparations for victims of colonial crimes. The Kenya cases before the ICC are unique in many ways, however they provide an interesting example of the wider debates surrounding the skewed application of international criminal law vis á vis the lack of accountability for gross and systematic acts of colonial violence, and the limits of transitional justice.

1

For example, in Kenya, the ICC Prosecutor used his proprio motu powers under article 15 of the Rome Statute to commence a preliminary investigation in Kenya.

2

‘The term ‘White Highlands’ was derived from the official policy that certain agricultural lands in Kenya should be reserved for settlers of European origin.’ W. T. W. Morgan, ‘The “White Highlands” of Kenya,’ The Geographical Journal 129(2) (1963): 140–155.

3

David Anderson, Histories of the Hanged: The Dirty War in Kenya and the End of Empire, 1st US ed. (New York and London: W.W. Norton, 2005), 21.

4

Bruce Berman and John Lonsdale, Unhappy Valley: Conflict in Kenya & Africa, Eastern African Studies (London: Nairobi and Athens, J.Currey and Ohio University Press, 1992), 89.

5

Maia Green, ‘Mau Mau Oathing Rituals and Political Ideology in Kenya: A Re-analysis,’ Africa: Journal of the International African Institute 60(1) (1990): 69–87, 71.

6

Tabitha Kanogo, Squatters and the Roots of Mau Mau, 1905–63 (London and Athens: J. Currey and Ohio University Press 1987), 5.

7

Anderson supra n 3 at 23.

8

Green, supra n 5 at 84.

9

Anderson, supra n 3 at 84.

10

Ibid.

11

Caroline Elkins, Britain’s Gulag: The Brutal End of Empire in Kenya (London: Jonathan Cape, 2005), 46.

12

Marshall S. Clough, Mau Mau Memoirs: History, Memory, and Politics (Boulder and London: L. Rienner, 1998), 41.

13

Daniel Branch, Defeating Mau Mau, Creating Kenya: Counterinsurgency, Civil War, and Decolonization, African Studies Series (Cambridge and New York: Cambridge University Press, 2009).

14

Clough, supra n 12 at 2.

15

Ibid., 41.

16

E.g., oathing practices allowed Mau Mau to control the dissemination of information amongst the Kikuyu population; Branch, supra n 13 at 38 and 53.

17

Anderson, supra n 3 at 6.

18

John Blacker, ‘The Demography of Mau Mau: Fertility and Mortality in Kenya in the 1950s: A Demographer’s Viewpoint,’ African Affairs 106(423) (2007): 205–227.

19

Anderson, supra n 3 at 291.

20

Ibid., 313.

21

David M. Anderson and Julianne Weis, ‘The Prosecution of Rape in Wartime: Evidence from the Mau Mau Rebellion, Kenya 1952–60,’ Law and History Review 36(2) (2018): 267–294. For more information regarding the claim on behalf of 5,000 Kenyan nationals who were subjected to torture by the British colonial government, see: Leigh Day, ‘The Mau Mau Claims,’ http://www.leighday.co.uk/news/cases-and-testimonials/cases/the-mau-mau (accessed 24 January 2024).

22

Katherine Bruce-Lockhart, ‘“Unsound” Minds and Broken Bodies: The Detention of “Hardcore” Mau Mau Women at Kamiti and Gitamayu Detention Camps in Kenya, 1954–1960,’ Journal of Eastern African Studies 8(4) (2014): 590–608, 590.

23

Anderson, supra n 3 at 113.

24

Yolana Pringle, ‘Humanitarianism, Race and Denial: The International Committee of the Red Cross and Kenya’s Mau Mau Rebellion, 1952–60,’ History Workshop Journal 84(1) (2017): 89–107.

25

Claire Nielsen, ‘From Nuremberg to the Hague: The Civilizing Mission of International Criminal Law,’ Auckland University Law Review 14 (2008): 81–114, 92.

26

In fact, it was only in 2011 that the Kenya Human Rights Commission (KHRC) filed a case on behalf of Kenyan victims of torture at the hands of the British colonial government before the Royal Courts of Justice. The British Government unsuccessfully attempted to have the case struck out by invoking the defence of State Succession, transferring responsibility to the present Kenya Government and arguing that the case was time-barred. Over 5,000 survivors received £19.9 million in compensation and an apology in 2013. See Day, supra n 20, and Kenya Human Rights Commission, ‘Mau Mau Case: Dealing with Past Colonial Injustices,’ http://www.khrc.or.ke/press-release/mau-mau-case-dealing-with-past-colonial-injustices/ (accessed 24 January 2024).

27

Nielsen, supra n 25 at 94.

28

Anderson, supra n 3 at 67.

29

Ibid.

30

Nic Cheeseman, Karuti Kanyinga and Gabrielle Lynch, The Oxford Handbook of Kenyan Politics (Oxford: Oxford University Press USA – OSO, 2020).

31

‘Decision on the Confirmation of Charges Pursuant to Article 61(7)(a) and (b) of the Rome Statute’ (Ruto Confirmation Decision) The Prosecutor v. William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang, ICC, 01/09-01/11-373, 5 February 2012, 39–59. On 5 April 2016, Trial Chamber V(A) terminated charges against William Ruto and Joshua Arap Sang on the basis that the Prosecutor had failed to provide sufficient evidence that the crimes in question had been committed by the two accused.

32

‘Decision on the Confirmation of Charges Pursuant to Article 61(7)(a) and (b) of the Rome Statute’ (Kenyatta Confirmation Decision) The Prosecutor v. Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali, ICC-01/09-02/11-382-Red, 29, 29 January 2012, 42–58. Hereafter referred to as ‘the Kenyatta case.’ Uhuru Kenyatta was the Minister for Finance at the time and notably the son of Jomo Kenyatta.

33

See Ruto Confirmation Decision, supra n 30, and Kenyatta Confirmation Decision, ibid.

34

Line Gissel, The International Criminal Court and Peace Processes in Africa-Judicialising Peace, 1st ed. (London: Routledge Taylor & Francis Group, 2018), Chapter 7.

35

The Prosecutor v. Uhuru Muigai Kenyatta, ‘Second Decision on Prosecution’s application for a finding of non-compliance under Article 87(7) of the Statute,’ 19 September 2016, ICC-01/09-02/11-1037.

36

For example, they found that ‘too many staff positions were filled by individuals who did not have the requisite experience and skill sets to deal with complex investigations and prosecutions against high level suspects.’ See ‘Full Statement of the Prosecutor, Fatou Bensouda, on external expert review and lessons drawn from the Kenya situation,’ 26 November 2019, https://www.icc-cpi,int/sites/default/files/itemsDocuments/261119-otp-statement-kenya.eng.pdf (accessed 24 January 2024).

37

Cassandra Mark-Thiesen, Moritz Mihatsch and Michelle Sikes, The Politics of Historical Memory and Commemoration in Africa (Berlin and Boston: De Gruyter Oldenbourg, 2022), 4.

38

As Rønning notes, ‘[H]istory, memory and myth are thus intertwined in various ways, yet at the same time they are independent concepts.’ Anne Rønning, ‘Some Reflections on Myth, History and Memory As Determinants of Narrative,’ Coolabah 3 (2009): 143–151, 150.

39

Ibid., citing Bo Stråth (2000: 19), 143–144.

40

Rønning, supra n 38 at 144.

41

Ibid.

42

Alon Confino, ‘Collective Memory and Cultural History: Problems of Method,’ The American Historical Review 102(5) (1997): 1386–1403, 1387.

43

Ibid, 1393.

44

Clough, supra n 12, citing Benedict R. O’G Anderson, Imagined Communities: Reflections on the Origin and Spread of Nationalism, revised ed. (London and New York, 2016), 205.

45

For further discussion on Kenyatta’s ‘hero status,’ see Kamari M. Clarke, ‘Refiguring the Perpetrator: Culpability, History and International Criminal Law’s Impunity Gap,’ The International Journal of Human Rights 19(5) (2015): 592–614, 593.

48

Donald Maingi, ‘“Post-Truths” of Public Memory: Art and Transitional Justice within Kenya’s Reinvention of a Postcolonial State Edifice/Serikali,’ Modern Languages Open 1(1) (2020), 1–24, 4–5.

50

E.g., Kenyatta’s British PR firm BTP Advisers states that its task was the development of a ‘compelling political narrative that would allow him [Kenyatta] to build an electoral majority’ and ‘[B]y exposing the weak and flawed nature of the ICC case’ against Kenyatta, they ‘made the election a choice about whether Kenyans would decide their own future or have it dictated to them by others.’ BTP Advisers, ‘One Million Vote Victory,’ https://btpadvisers.com/case-studies/million-vote-victory (accessed 24 January 2024).

51

Susanne D. Mueller, ‘Kenya and the International Criminal Court (ICC): Politics, the Election and the Law,’ Journal of Eastern African Studies 8(1s) (2014): 25–42, at 31.

53

Ibid.

54

Ibid.

55

Ibid.

56

Ibid.

57

‘Decision on the Withdrawal of Charges against Mr Muthaura,’ 18 March 2013, ICC-01/09-02/11-696.

58

Kamari M. Clarke, Affective Justice: The International Criminal Court and the Pan-Africanist Pushback (Durham: Duke University Press, 2019), 92.

59

Gabrielle Lynch, ‘Electing the “Alliance of the Accused”: The Success of the Jubilee Alliance in Kenya’s Rift Valley,’ Journal of Eastern African Studies 8(1) (2014): 93–114, 103–104. Some of these ‘enemies’ included members of civil society who had been very vocal about accountability for the post-election violence, who were then branded as ‘Evil Society’ in many social media posts.

60

Oscar Gakuo Mwangi, ‘Don’t Be Vague Bash the Hague: Votes and Legitimacy in Kenya’s 2013 Elections,’ Commonwealth & Comparative Politics 53(4) (2015): 381–400.

61

Ibid., 385.

62

Ibid., 389.

63

Ibid., 393.

64

Maingi, supra n 48 at 7.

65

Ibid.

66

Lynch, supra n 59 at 104.

67

Ibid., 94–95.

68

Mueller, supra n 51 at 31.

70

Ibid., emphasis added.

71

Ibid., emphasis added.

72

Ibid., emphasis added.

75

‘President Uhuru Hits Out at the West over ICC,’ supra n 72.

76

Clarke, supra n 58 at 113.

77

Ibid., 93–94.

78

E. S. Atieno-Odhiambo, ‘The Production of History in Kenya: The Mau Mau Debate,’ Canadian Journal of African Studies 25(2) (1991): 300–307, 301, 306.

79

Frank Furedi, ‘The African Crowd in Nairobi: Popular Movements and Élite Politics,’ Journal of African History 14(2) (1973): 275–290, 282.

80

Ibid.

81

Ibid.

82

Anderson, supra n 3 at 336.

83

Ibid.

84

Berman and Lonsdale, supra n 4 at 420.

85

Clough, supra n 12 at 54.

86

Ibid., 49.

87

Anaïs Angelo, Power and the Presidency in Kenya: The Jomo Kenyatta Years, African Studies Series (Cambridge: Cambridge University Press, 2020), 171.

88

Ibid., 55.

89

Branch, supra n 13 at xi.

90

Angelo, supra n 87 at 162.

91

Ibid., 169.

92

Ibid.

93

Ibid., 171.

95

Ibid, para. 56.

96

Nicolas K. Githuku, Mau Mau Crucible of War: Statehood, National Identity, and Politics of Postcolonial Kenya. (Lanham, 2016), 219.

97

Clough, supra n 12 at 43.

98

Mungiki means ‘multitude’ in the Kikuyu language and is a ‘largely Kikuyu-based religio-political movement’ that draws its followers from the urban and rural poor that transformed into a criminal militia and have often been used by politicians for support and intimidation of opponents. See, e.g., Peter Mwangi Kagwanja, ‘Facing Mount Kenya or Facing Mecca? The Mungiki, Ethnic Violence and the Politics of the Moi Succession in Kenya, 1987–2002,’ African Affairs 102(406) (2003): 25–49.

99

The Prosecutor v. Uhuru Muigai Kenyatta, ‘Public Redacted Version of “Second updated Prosecution Pre-Trial Brief,” 26 August 2013, ICC-01/09-02/11-796-Conf-AnxA,’ ICC-01/09-02/11-796-AnxA-Red, 19 January 2015, para. 1 (hereafter referred to as ‘Pre-trial brief’), para. 3.

100

Ibid.

101

Pre-trial brief, para. 89.

102

Pre-trial brief, para. 92.

103

Elkins, supra n 11 at 39.

104

Ibid., 40.

105

Jomo Kenyatta & 5 Others V. Regina [1954], EKLR.

106

Elkins, supra n 11 at 41.

107

Jomo Kenyatta & 5 Others V. Regina [1954], EKLR.

108

Jomo Kenyatta & 5 Others V. Regina [1954], EKLR.

109

Anderson, supra n 3 at 66.

110

Ibid., 65.

111

Obiora C. Okafor and Uchechukwu Ngwaba, ‘The International Criminal Court as a “Transitional Justice” Mechanism in Africa: Some Critical Reflections,’ The International Journal of Transitional Justice 9(1) (2015): 90–108, 108, https://doi.org/10.1093/ijtj/iju025.

112

Anushka Sehmi, ‘Judicializing Economic Violence as Means of Dismantling the Structural Causes of Atrocity in the Democratic Republic of Congo,’ International Journal of Transitional Justice 14(3) (2020): 423–442. https://doi.org/10.1093/ijtj/ijaa021.

114

Pádraig McAuliffe and Christine Schwöbel-Patel, ‘Disciplinary Matchmaking,’ Journal of International Criminal Justice 16(5) (2018): 985–1009, 1000.

115

Mahmood, Mamdani, ‘Responsibility to Protect or Right to Punish?’ Journal of Intervention and Statebuilding 4(1) (2010): 53–67, 53.

116

Christopher R. Rossi, ‘Hauntings, Hegemony, and the Threatened African Exodus from the International Criminal Court,’ Human Rights Quarterly 40(2) (2018): 369–405, 378.

117

Clarke, supra n 58 at 60.

118

Mahmood Mamdani, ‘The International Criminal Court’s Case against the President of Sudan: A Critical Look,’ Journal of International Affairs 62(2) (2009): 85–96, 86.

119

Ibid., 90.

120

Sehmi, supra n 112.

121

Samuel Moyn, Not Enough: Human Rights in an Unequal World (Cambridge, 2018).

122

Brenda Chalfin, Neoliberal Frontiers: An Ethnography of Sovereignty in West Africa, (Chicago and London: University of Chicago Press, 2010); James Ferguson, Global Shadows: Africa in the Neoliberal World Order (Durham and London: Duke University Press, 2006); Jean Comaroff and John L. Comaroff, Millennial Capitalism and the Culture of Neoliberalism, Millennial Quartet (Durham: Duke University Press, 2001).

123

Bill Rolston and Fionnuala Ní Aoláin, ‘Colonialism, Redress and Transitional Justice: Ireland and Beyond,’ State Crime Journal 7(2) (2018): 329–348, 334.

124

Nielsen, supra n 25 at 92.

126

Clarke, supra n 58 at 92.

128

Rolston and Ní Aoláin, supra n 123 at 333.

129

Ibid.

130

Hakeem O Yusuf, ‘Colonialism and the Dilemmas of Transitional Justice in Nigeria,’ International Journal of Transitional Justice 12(2) (2018): 257–276. https://doi.org/10.1093/ijtj/ijy006.

131

Rolston and Ní Aoláin, supra n 123 at 329.

132

Nielsen, supra n 25 at 90.

133

Rolston and Ní Aoláin, supra n 123 at 333.

134

Astrid Jamar, ‘Accounting for Which Violent Past? Transitional Justice, Epistemic Violence, and Colonial Durabilities in Burundi,’ Critical African Studies 14(1) (2022): 73–95, 91.

135

Ibid., 9.

136

Clarke, supra n 58 at 142.

137

Ibid., 151.

Author notes

*

International criminal lawyer, Nairobi, Kenya. Email: anushkasehmi@gmail.com. The views presented here are provided in a strictly personal capacity and do not represent the views of former or present employers.

∞

The author would like to thank Kwamchetsi Makokha, Gladwell Otieno, Muthoni Wanyeki, Njonjo Mue, Lydia Muthiani, Dr Peter Brooke and Fergal Gaynor for their time and valuable contributions to this article in its first iteration as the author’s MSc in African Studies dissertation at the University of Oxford. The author would also like to thank the anonymous reviewers for their critical insights.

© The Author(s) 2024. Published by Oxford University Press.