How can national and international justice systems deal with Kenya’s civil militias given a crumbling national judicial system, potential complicity by the political elite, difficult economic conditions and escalating violence? This essay argues that the pursuit of an efficient prosecution of Kenya’s civil militias could enhance national and international judicial traditions, while strengthening the rule of law and the Kenyan state. The Kenyan legal system is attempting to prosecute militias, but public confidence in the system is non-existent. International criminal law and its institutions can help to bridge the gap between a nominal and an efficient prosecution.
In early 2008, expressions of frustration at a clearly imperfect election process degenerated into ethnically targeted attacks that were countered by ethnic militia groups. In fact, civil militia also attack citizens in ‘peace time’. ‘Civil militias’ are groups of (typically) young people who have been locked out of the mainstream political process and are united by a common, if not always clearly articulated, social or political agenda expressed by violent means. It is this agenda that distinguishes them from criminal gangs.
In Kenya, community-based militia groups frequently emerge in response to a perceived threat against the integrity of the community. Interest-based groups also develop to protect specific political or economic interests and may include individuals from a variety of social backgrounds. The reaction of the state to these acts of vigilantism determines whether they remain spontaneous or become a new civil militia. The latter outcome may result from either no state response at all or an overzealous response.
- In Kenya, government authority is regularly challenged by militia groups in informal settlements. Because of difficulties in gaining access to these areas, the central government provides no or very few services there. Groups thus become stronger and have broadened their activities.
- The Mungiki militia group, for example, is considered to be one of the greatest security threats in Kenya, allegedly responsible for crimes ranging from murder and extortion to undressing women wearing trousers as part of their campaign against indecent dress. The group is attempting to gain control of entire neighbourhoods, and is clashing with emerging rival ethnic militia groups.
- The government approach to the militias has historically been inconsistent. After the 2002 violence in Kariobangi, for example, the government officially proscribed the Mungiki and other groups but they were allowed to resurface during the 2007 elections.
- Relations between the government and militia groups are ambiguous. The government has used militia movements to maintain control in potential opposition strongholds or to ensure regime survival. The government seems only to challenge the militia groups when the interests of the ruling elite conflict with those of the militias.
The apparent toleration of civil militia groups raises doubts about the willingness and ability of Kenya’s judicial system to address the security concerns of the Kenyan people. It also challenges international criminal law to devise a method of cooperation and complementarity that will not undermine the sovereignty of the state and the primacy of national jurisdiction, but will increase people’s confidence in international justice.
- Unchecked speculation over who was behind the 2008 violence could lead to the creation of a skewed narrative, most likely along ethnic lines.This could significantly hamper prospects for long-term peace in Kenya and reinforce ethnic prejudices that already threaten the integrity of the state.
- An international prosecution of the ringleaders and/or financiers of the movements would diffuse the potential for violence.
- As the militia groups fill a vacuum in state governance, any investigation and prosecution process will not only have to deal with the perpetrators of the crimes but also suggest pragmatic ways of filling this vacuum.
