From one perspective, a major agenda in contemporary peacebuilding policy is to improve in statebuilding efforts. A term “peacebuilding consensus” is often used to elaborate on those who see a direct link between peacebuilding and statebuilding, especially among practitioners in the development community. On the other hand, there are so-called critical wing of peacebuilding studies questioning the underlying assumption behind the peacebuilding consensus by pointing out the status quo as “virtual peace.” The critical circles of peacebuilding researchers are pointing out that peace that is being built through contemporary statebuilding efforts are less multidimensional as advocates would like to think, and stresses needs to pay attention to the social context of the country in concern. Paying attention to this intricate relationship between peacebuilding and statebuilding, this paper will set a following question: Do non-state actors contradict statebuilding? Incorporating non-state actors into statebuilding may sound like an anomaly for those following the path of the state monopoly over the legitimate uses of the force from works of Max Weber. However, can non-state actors be incorporated into statebuilding, and benefit overall peacebuilding and statebuilding efforts in the country concerned? To address these questions, this paper will refer to a case from the northern Kenya. In northern Kenya, a phenomena known as the community declaration is emerging since the beginning of the 1990s, and is starting to be acknowledged by the Kenyan Government through the National Steering Committee on Peacebuilding and Conflict Management within the Office of President. The first section will explain a discussion surrounding contemporary statebuilding policy with emphasis on critical engagement, and the second section will focus on the case study of community declarations from northern Kenya, mainly from 2001 to 2006. The third section will analyze the case study,and what lessons can be drawn from Kenyan case study for statebuilding practices. In short, community declarations originating from the northern Kenya suggest that, because non-state actors are diverse, some non-state actors can complement and be acknowledged by the state at the same time. Whether or not a government chooses a path of pacification or that of coexistence with non-state actors is a political decision to be made by both the government and people concerned. In that light, community declarations from Kenya can be perceived as an example illustrating a possible different route for statebuilding: i.e. hybrid political order.

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This paper aims to identify the changing logic of putting an end to impunity by analyzing inside/outside perspectives in the case study of Kenyan judicial reforms since the 2007 Post-Election Violence (PEV).

In Kenya, the PEV erupted in December 2007, killing at least 1,113 people, forcing the displacement of more than 350,000, and leading to countless reports of sexual violence and inhumane acts. In response to this severe violence, the United Nations, the European Union, and the United States have joined peace negotiations in Kenya and African countries. The International Criminal Court (ICC) has also increased its level of involvement, welcomed by Kenyans as a means to put an end to impunity in Kenya. However, in the 2013 presidential election, Uhuru Muigai Kenyatta and William Ruto, whom the ICC indicted, won the election with the public’s support while articulating a painfully critical position of the ICC. So, where has the philosophy of putting an end to impunity for the 2007 PEV gone?

Based on this reality, this paper first pointed out the significance of the judicial intervention by the ICC in terms of the actual situation of impunity surrounding electoral violence since Kenya’s independence. Then, this paper analyzed the fact that, although the judicial intervention was an opportunity to make progress in reforming the Kenyan judicial sectors, an environment that prioritized domestic stability over the punishment of those involved in the 2007 PEV began to emerge in Kenya. Finally, this paper reveals a transformation in the logic of putting an end to impunity directed at the 2007 PEV both inside/outside Kenya. The 2013 presidential election focused on domestic stability, although some issues were raised. Actors outside Kenya, such as the United States and Europe countries, also stopped seeking accountability for the 2007 PEV and went toward rebuilding relations with the Kenyan government since the 2013 presidential election. This transformation clarified the reality that Kenya’s internal logic, supported by Kenya’s external logic, created an environment of impunity for those who were involved in the 2007 PEV.

The above reality shows that Kenya used judicial intervention as an opportunity to reform its judicial system, obtain assistance from international donors, and even rebuild relationships with its security partners. While prosecution for those involved in the 2007 PEV has not been sufficient, Kenya has benefited in other areas than putting an end to impunity. This domestic transformation has not been driven solely by political elites but has developed with support from its citizens. This paper implies that Kenya’s prioritization of stability, which was transformed with the support of its citizens, has allowed Kenya to subsequently lead other African countries in anti-ICC policies in the arena of the African Union.

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