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February 17, 2019

PEV National Accord Negates The ICC Trials

PEV National Accord Negates The ICC Trials
PEV National Accord Negates The ICC Trials

On February 28 we will be celebrating the eighth anniversary of the National Accord and Reconciliation Agreement. This is the agreement that pulled Kenya back from the brink of destruction following the 2007-08 post-election violence, and that ushered in the Grand Coalition Government.

On February 28, 2008, The Guardian newspaper of the UK 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’.”

The NARA was developed after deep consultation across the sociopolitical and economic divide, and in the presence of regional and international leaders. Behind the negotiations was an unspoken threat that if no agreement was reached the world would deal harshly with whoever was behind the 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 PEV. Those behind this agreement went a step further and came up with a set of conditions that Kenya needed to fulfil to ensure the PEV would not re-occur. These conditions were captured under four agenda 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 PEV had brought about, including settling IDPs. This required some work and became a process that has been carried out over eight years, and cost close to Sh20 billion. The third agenda was to resolve the political crisis that had led to the PEV. This was done and the result was the coalition government.

The fourth, famously referred to as ‘Agenda 4’, required Kenya to examine and bring about constitutional, legal and institutional reforms; deal with poverty and inequality; tackle youth unemployment; and implement land reforms. Hence, despite the challenges, this too has been dealt with. The change of constitution in 2010; legal and institutional reforms; the aggressive focus on youth and women’s empowerment (that has led to specialised funds and the isolation of 30 per cent of government business to women and youth); and the ongoing land reforms (more title deeds being issued in the last three years than in all the years between 1963 and 2013 cumulatively).

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 PEV left all of us – and especially our leaders in the Tenth 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 individuals who have been charged. However these two, and the other four whose cases collapsed, were charged for crimes committed during the 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 was part of those making the offer. Gbagbo refused. Today he is charged at the ICC.

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


Ngunjiri is a director of Change Associates, a political communications consultancy.


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