Kenya's government has promised "full accountability" for the Westgate siege. But it hardly has a stellar record of delivering justice.
Nairobi - On Day Four of the siege of Westgate mall in Nairobi, Kenyans listened to President Uhuru Kenyatta tell the world that the battle was over.
It had been a long wait, and there was little reliable information to go on. Anxious Kenyans had been glued to television news since the siege broke, despite the fact that it could show little more than scenes of security vehicles parked around the corner from Westgate. So, after days of unverifiable but grisly accounts of events inside the mall, the country was ready to hear what the president had to say.
It was a much-praised speech, with the president emotionally declaring the triumph of Kenyan unity and reminding the people that "deep inside, where it counts most, we are one, indivisible national family". Kenyatta also promised "full accountability" for the crimes.
Perhaps the affirmation of Kenyan identity and resolve to pursue justice was what Kenyans needed at that moment. But in truth, the speech did not offer much more. Other than a statement that hostages' and militants' bodies may be buried in the rubble, the speech provided no more clarity on what may have gone on inside the mall, why the rescue operation took four days, or how the attackers were able to carry out their plan so effectively.
And more than a week after the attack, Kenyans still do not know the identities of those suspected to have been involved. Investigations are slow, and questions abound.
In recent days, a distinct tension in how things will proceed has emerged. Pursuing full accountability for one heinous crime is set against resisting full accountability for another. How can the Kenyatta administration ensure justice for Westgate when its actions surrounding the trials of its own leaders at the International Criminal Court (ICC) seem decidedly resistant to the pursuit of justice?
Thus far, signs that the victims of Westgate will see justice delivered are less than encouraging.
A blame game is in full swing within the country's security organs. Responding to attacks on its competence, Kenya's National Intelligence Service (NIS), led by Michael Gichangi, has claimed that it received warnings of an attack, which it passed on to other agencies, including the Inspector General of the police, David Kimaiyo, Criminal Investigations Department (CID) director Ndegwa Muhoro as well as the army chief and cabinet secretaries of the National Treasury, Interior, and Foreign Affairs.
Some NIS officers claim that it is Kimaiyo and Muhoro who should be investigated for failing to act on the information, and allege that senior officials within the office of the president should also be investigated for suppressing their reports.
In a refreshing move, Gichangi indicated his willingness to testify over these matters in public. However, Ndungu Gethenji, who chairs the parliamentary defence committee, indicated that such a session would be held behind closed doors.
Participating in a public briefing on Sunday, Interior Cabinet Secretary Joseph Ole Lenku only contributed to the opacity by failing to address the allegations that security agencies had failed to act on intelligence, even stating that intelligence matters were "confidential".
A similar level of uncertainty and inconsistency has also defined questions around the 39 or more people who are still missing, at least some of whom are believed to have been held as hostages. In his speech to the nation, Kenyatta said that their bodies were buried in the rubble of Westgate. But, in a contradictory statement, Minister Lenku said the attackers had taken no hostages at the time the Special Forces moved in. This statement also goes against the claims of a doctor who alleges that evidence from inside the mall showed signs of torture.
There is also the issue of the looting of Westgate shops, which appears to have been conducted during the siege. Vendors of jewellry and electronics seem to have been particularly affected, with losses reported to be worth millions of Kenyan shillings (tens of thousands of US dollars). The reports raise several doubts around the rescue operation and call into question what the security forces were doing inside the mall and how such theft could have gone on in the midst of a rescue operation.
Finally, it remains to be explained what caused the collapse of three floors of the mall. Lenku initially told the Kenyan public that the attackers were "burning mattresses" to create a diversion which would allow them to escape. As the plumes of thick, black smoke emerged, however, the story quickly lost public credibility and social media exploded with questions about the explanation. Days later, reports claimed that the collapse had been caused by one of the militants igniting a suicide vest when forces closed in. More recently, however, reports are emerging that it was the Kenyan forces which caused the collapse after they fired rocket-propelled grenades inside the mall.
Committed to accountability?
Unfortunately, this lack of concrete answers is not surprising in the Kenyan context. In fact, it is just the latest in a series of cover-ups that have led to impunity for Kenya's most privileged class.
In May 2013, the Truth, Justice and Reconciliation Commission released a report, which documents how every single Kenyan administration has been involved in gross violations of human rights and political assassinations. In addition to detailing how the vast majority of these crimes have gone unpunished, the report also identifies the issue of land as the "single most important driver of conflicts and ethnic tension in Kenya" citing political elites' illegal acquisition of land as a primary historical grievance and unresolved problem. The Kenyatta family's alleged illegal acquisition of huge tracts of land is an especially volatile issue.
There is also, of course, the recent Supreme Court decision on the presidential election petitions. In addition to relying on faulty judgements, the decision failed to address any of the evidence showing gross irregularities at the polling station level.
And then there is the ICC case, where President Kenyatta and Deputy President William Ruto stand accused of crimes against humanity for their alleged roles in the 2007-2008 post-election violence. Thus far, the Kenyan government has gone out of its way to demonstrate its rejection of the Court. On the campaign trail, Kenyatta claimed that he would cooperate with the ICC, because he wanted to prove his innocence. But after assuming office, the Kenyan ambassador to the UN requested that the Security Council stop the trials, claiming that they risked destabilising the country. Since then, the government has also attempted a number of other moves to delay the trials or have them halted altogether. In response, the Court has had to turn down a request to have the trials moved to East Africa, rejected Kenyatta's request to hold the trial via video, and denied his call for the trial to be delayed until January 2014. At the start of last month, Kenya's parliament also approved a motion to pull out of the Rome Statute.
Surely, if the Kenyan administration is as committed to accountability as it claims, shouldn't it be focusing on pursuing justice for the victims of the post-election violence? If the president and his deputy are innocent, why aren't they making efforts to find and bring the actual perpetrators to justice?
This is the Kenyan state's commitment to pursuing justice. And official reactions to those genuinely pushing for accountability in the Kenyan context have been harsh. In fact, human rights activist Maina Kiai recently held a press conference, describing threats to his family, civil society organisations and witnesses, all for their work to defend the constitution and basic human rights.
For both Westgate and the ICC, naming and convicting the perpetrators is only one of many steps on the road to full accountability. Bringing those responsible to justice may address certain incidents, but the problems go much deeper than people at the top. In order to prevent future election-related violence and terrorist attacks, it is critical to locate and address the systemic gaps in the relevant institutions that allow such horrors to take place. Until those gaps are identified and enforcement of the law is prioritised, accountability will remain elusive.
Seema Shah earned her PhD in Political Science from UCLA. She currently works as a Researcher for AfriCOG in Kenya, with a focus on elections and ethnic violence in the developing world.