The recent decision by Uganda's President Museveni's to turn to the International Criminal Court (ICC) for investigations of atrocities by the Lord's Resistance Army has generated a lot of excitement in international human rights circles. Unfortunately, as the February 21 massacre by Joseph Kony's rebels has demonstrated, international prosecution may not be the inspired choice required to stop the carnage.

Judicialisation of conflict is what states do as a substitute for effective action. As a strategic choice for ending conflict, it is also a guaranteed failure. It proved the wrong prescription to the 1990s conflicts in the former Yugoslavia and Rwanda. In 1993, the United Nations Security Council created the International Criminal Tribunal for the former Yugoslavia (ICTY) ostensibly to stop the violence, but in reality to avoid doing anything about the conflict. Every single diplomat at the Security Council knew that what was required was a military solution or negotiated end to the inter-ethnic slaughter.

Rwanda, even more dramatically, demonstrated the timidity of the world in stopping conflicts. The UN had peace-keeping troops on the ground in Rwanda but when blood started to flow, the world decided to cut and run. General Romeo Dallaire, the commander of UN peacekeeping forces in Rwanda then, has stated that he could have stopped the genocide with 5,000 good troops and a muscular UN mandate. Instead, he was ordered to leave. The creation of the International Criminal Tribunal for Rwanda (ICTR) was partly a gesture of contrition by states that had retreated to the safety of their borders and abandoned Rwanda to its fate. In both Rwanda and the former Yugoslavia, resort to a judicial option was a way of appearing to do something without doing anything.

The lessons of these conflicts for Uganda are unfortunate but clear. The relevance of international law during conflict rests on the training, intentions and gun power of the fighters and their command. The individuals responsible for the February 21 massacres have as much knowledge of the Geneva Conventions as they do of brain surgery. President Museveni's invitation to the International Criminal Court therefore, while an important affirmation of individual criminal accountability for grave violations, it skirts the more immediate concern of stopping the atrocities.

The decision is flawed in both timing and effectiveness. Its timing elevates a downstream process of prosecutions to the upstream stage of regulation and cessation of conflict. Prosecutions are usually an after-the-conflict matter. They come after the fog of war has cleared. Commencing prosecution of 'enemies' during conflict imperils truce negotiations and is a disincentive to those who may be willing to surrender. It is why the International Criminal Tribunal for the former Yugoslavia refrained from indicting former Yugoslav leader Slobodan Milosevic before and during the Dayton Peace Process. In any event, it is one thing to draw a list of the rebels alleged to have committed atrocities, but a different reality to attempt to collect evidence amidst the war.

The 18-year-old war in northern Uganda has now turned into the classic African 'stale-mate wars', with neither side able to deliver a decisive victory. What Uganda needs at the moment is a strategy of militarily defeating the rebels or negotiating a ceasefire. Given Kony's modus operandi, a negotiated peace settlement may be elusive in the short run.

If the only viable option is military, President Museveni may have to collectivize the security dilemma facing Uganda. The trail of the military supplies to the Lord's Resistance Army needs to be examined to hold to sanction those complicit in the conflict. The African Union Protocol creating a Peace and Security Council has only recently come into effect. Part of its mandate is to stop the atrocities similar to those perpetrated by the Lord's Resistance Army. With the new African Union, African Court of Human Rights and the NEPAD mechanisms, African leaders have pledged to generate solutions to Africa's many problems. The African Union has vowed not to repeat the spectacular failures of its predecessor, the Organisation of African Unity (OAU). Uganda may be well advised to test this commitment by requesting for assistance in its war against the Kony rebels.

External assistance to Uganda is however bound to be complicated by the country's recent military entanglements in the Democratic Republic of Congo. The five reports by the UN Panel of Experts on the Illegal Exploitation of Natural Resources and Other Forms of Wealth of the Democratic Republic of Congo, have fingered the Ugandan military for its involvement in illegal exploitation of minerals in the DRC and escalation of the conflict in that country. The tense relations between Uganda and Rwanda following the clashes between their forces in the DRC complicates a regional approach to security.

For Kenya and Tanzania, the insecurity in Uganda is a threat to the anticipated economic recovery of economies already battered by terrorist attacks. It is these two countries, more than any other in the region that must work with Uganda for a solution to the Kony insurgency if an integrated East Africa is to become a reality. In the long term, East African security experts need to re-imagine borders as regional rather than national. Security solutions are however determined by the political policies and choices of leaders. An East African security mechanism is only possible in the context of consensus on values by East African leaders. Internally, the three East African countries are yet to clear their decks of key governance issues. Mobilizing national support for regional peace work in the absence of local security and vibrant structures of domestic accountability is an uphill task.

However, the victims of Kony's war in northern Uganda will not wait for democracy to flourish in East Africa or the International Criminal Court to conduct its investigations. They are not victims of a random robbery or murder. Kony's massacres are a full-blown insurgency devoid of any humanitarian pretensions. If amnesty is what it will take to save lives, it is a choice that Uganda may have to explore in spite of obvious moral qualms. A military victory is more likely to deliver judicial justice to Kony's victims. But it requires political will at different levels and possibly more than the Ugandan military to deliver.

* Recent Pambazuka News articles on Uganda:
- Confronting impunity through the ICC: Is Africa ready and waiting?

* Mutuma Ruteere is a Phd candidate in Political Science, University of Nebraska-Lincoln, USA and a researcher on human rights and humanitarian law.

* Send comments on this editorial - and other events in Africa - to [email protected]

* NOTE FOR EDITORS: Please note that this editorial was commissioned from the author for Pambazuka News. While we are pleased that several print publications have used our editorials, we ask editors to note that if they use this article, they do so on the understanding that they are expected to provide the following credit: "This article first appeared in Pambazuka News, an electronic newsletter for social justice in Africa, Editors are also encouraged to make a donation.

Ten years ago, Kenyan leaders wrote a new chapter to its history. In a series of well-publicised meeting, senior government leaders, including the Vice President, declared war on Kenyans supporting democratic reforms. Immediately thereafter, on October 29, 1991, the first houses were torched and the first drops of blood shed in the Rift Valley Province of Kenya. It was the beginning of a campaign of violence that the Kenya Government even to this day - seeks to explain away as ethnic violence.

By 1994, over 1,500 Kenyans were dead and hundreds of thousands homeless. Since then the ghost of violence has regularly visited Kenya. In 1997, this caravan of death set up camp at the coastal region leaving up to a hundred people dead and hundreds of thousands of others homeless. Evidence implicated the complicity of senior politicians and government officials.

The Kenya Human Rights Commission estimates that in the last decade state-sponsored violence has left over 4,000 people dead and nearly 6,000 forced to flee their homes. Another recent survey put the figure of those not yet resettled at 228,744.

Ten years on, the perpetrators of these crimes still freely walk the breadth of the country. Many retain their places of honour in the cabinet. Those senior civil servants who failed to stop the violence have never been disciplined. Security officials who failed defend those attacked still remain at their posts. None sleeps uneasy for fear that the arm of justice may yet catch up with them.

Neither has any of them resigned for their shameful failure. None has yet been called to account. Their victims are either dead or in no position to bring them to justice. Justice is still doled out on their terms. And because they preside over the government, they have defined the limits on who gets punished and who does not.

Impunity has become the by-word for governance in Kenya. From the looting of government corporations to the daylight execution of suspects by the police, the hydra of impunity has been reproducing itself. It now the single most serious threat to what remains of the justice system in Kenya.

This is why the independent Kenya Human Rights Commission has started a campaign to stem this tide of impunity. The Commission's campaign seeks to ensure, among other things, resettlement of victims of state-sponsored terror and individual accountability for human rights violations. The campaign against impunity in Kenya is not isolated from the tide of world events shaping our reality. Few can ignore the impact that the Pinochet case has had on the fight against impunity. That case has set a precedent for what other dictators could face. Pinochet is now a milestone on that road that justice may yet be done even when it takes years. And there are several others. Several countries now have laws facilitating the prosecution of foreigners for international crimes committed abroad.

The world over, boltholes for violators of human rights violators are getting sealed. There are several, well known torturers within the Kenyan police force. Those who bankrolled the orgies of political violence in the Rift Valley and the Coast provinces in Kenya are well known. They have names. They have faces. Their names are on every victim's lips. Naming these violators is one way of blowing off their veil of comfort. Their victims have been named. Just as those who have survived atrocities have had to wear their identities as sufferers so should the perpetrators too wear the identities of shame.

It might be argued that the mere naming of underwriters of death is too feeble a response; a meaningless endeavour. However, history counsels that naming names of violators is a powerful first step in the road to justice. Even governments with the most brazen records of human rights violation will deny their guilt. Impunity only thrives best under the cloaks of anonymity. It is a badge of arrogance only won in the security of the collective.

Yet, it will never be possible in Kenya to bring to justice all the violators of human rights. It has never been possible anywhere in the world. Decades after its nightmare of disappearances, Argentina is yet to bring to account the bulk of its military that authored the terror. Having relived its pain of apartheid, through the Truth and Reconciliation Commission, South Africa hopes it has drawn the line on its past. None of the architects of apartheid has been booked for appointment with justice. Zimbabwe has its own chamber of horrors. The Matabeleland massacres of the Mugabe government have remained shielded from public scrutiny. Mugabe did not begin his orgy of violence with the commercial farmers. Up to 20,000 Zimbabweans are believed to have been killed in the 1980s violence, largely executed by Mugabe's 5 Brigade.

The Kenyan campaign is anchored on the belief that peace and reconciliation can only be anchored by justice. Individual perpetrators must bear personal responsibility for certain rights violations. It is individuals who torture and kill and burn houses. There is now universal jurisdiction for certain violations that constitute international crimes. In deed we are, but a few steps from an international criminal court.

The struggle against impunity in Kenya, as elsewhere, will require a combination of strategies. From court action to sustained political pressure. To be effective it will not be just a campaign restricted to Kenya but one that takes advantage of developments at the international level. That is why it involves an alliance of actors. There are no illusions that it will be easy. The Kenya Government still leans its weight on all institutions of justice. Part of the battle will be institutional reform. Even at the international level there are real difficulties to be overcome. Many of the powerful governments have abetted in the perpetuation of impunity. Trade and national interests all too often have been allowed to trump human rights. We only need to look at the diplomatic dance being played out over Sudan since it started drilling oil.

The fight against impunity will be not bear quick results. But then, no such struggles have been easy.

* Mutuma Ruteere is with the Kenya Human Rights Commission.

If nothing can be written about Kenya today without the name of its President Daniel Arap Moi weaving its way into the narrative, it is a testament to the legacy his twenty three years in power has bequeathed Kenya. For in those twenty-three years, President Moi has reduced a once proud country into an economic dunghill foraged by his cronies and a political Babel in which the only common language is himself. Even more frightening is his transformation of a peaceful multi-ethnic society into a snakepit where communities are manipulated to believe that their survival depends on the annihilation of others.

Kenya has not yet gone the way of Somalia, Rwanda or Burundi. It still has a largely functioning political infrastructure for controlling ethnic conflict. It might even sound alarmist to suggest the possibility of conflict. That might well be so and violence might not be. But that is largely dependent on the decisions of the regime of President Moi in the next few months.

Kenya is set to go to elections in 2002 with President Moi constitutionally barred from running. Since 1992, when Kenya held its first multiparty elections, politically motivated ethnic violence has become the byword for elections. With Moi set to leave the scene and the ruling cabal scared of the possibility of life without power, the entire future of Kenya might be up for the toss.

In 1992 and 1997 Moi used actual violence and the threat of violence to retain power. The orgy of violence left close to 2000 Kenyans dead and thousands displaced. No one was punished and the real truth remains buried in the official rhetoric of building peace.

Since then, the map of violence and impunity has continued to grow. Close to 40% of the country is now under one form of violence or another. The northern region bordering Ethiopia, Somalia and Sudan has become bandit territory. With the government focused on containing the activities of opposition politicians and other political challengers, insecurity in these regions has reached the levels of law intensity warfare, pitting rival militias of local political kingpins of the ruling party. With the political instability in Ethiopia, Sudan and Somalia, easy accessibility of arms has transformed the conflict from a political shouting match to a deadly affair.

With the Kenyan economy growing at below zero, the economic collapse has heightened the sense of despair. The uncertainty of whether President Moi will abide by the constitution and retire from politics or will seek to cling on has not helped the situation. With Moi playing a wait-and-see game over his exit investments have continued to board up for the possible eventuality.

In the meantime, many of Moi's close allies, variously implicated in planning violence and wanton corruption are proposing a constitutional manipulation that allows Moi to continue playing a role in Kenyan politics. With Moi back in power, either as president or Prime Minister in a new constitutional arrangement, they will be able to escape accountability for human rights violations. Prosecution of the corrupt and those behind political violence in Kenya, it has been argued, will only lead to further instability and violence. Some supporters and critics of the Moi government have argued that it is time to close the chapter and move on. Time to turn the page, so to speak.

In all this, however, the cries of justice continue unanswered. Closing the chapter may be easy to speak of for those who were not been personally touched by the violence and corruption of the government. But for those who lost relative and property and the millions who have been economically disappeared there can never be a closure. A new chapter will mean addressing their loss and misery.

Kenya is now at the threshold of writing a new constitution. Closing the chapter of corruption and political violence means that the new constitution will not remember this part of Kenya's past. For those who died under police fire while fighting for a new constitution, a closure without justice is an erasure of their memory and their existence. While a new constitution is a fresh beginning, it is not a forgetting of the past.

The negotiation of the future in Kenya still revolves around Moi. He still controls the machinery of political violence. He has used this machinery to play hostage-politics in the past. Indications are he is ready to use it again to allow himself to escape the reach of accountability. Allowing Moi and his allies to escape accountability for instigating ethnic violence may buy the silence of his extremist supporters. But will it be justice?