Prof Mahmood Mamdani’s talk last week focused on peace, justice and “ethnic” conflict. Mamdani is one of the region’s most engaged and noted public intellectuals. What follows is written with both appreciation and respect.

Applying to Kenya an argument first articulated in a New York Times essay he co-wrote with former South African president Thabo Mbeki, Mamdani stated that the violence in Kenya of 2008 was political, not criminal.

It had its constituencies as it was driven by issues — competing and different, colonial (ethnic) and post-colonial (national), conceptions of land ownership and rights in the Rift Valley.

It cannot be resolved by judicial processes as these can only apply or interpret — not resolve — these competing and different conceptions. It can only be resolved by political processes that negotiate these competing and different conceptions.

He further argued that it was the international community — together with an internal constituency of “human-rights fundamentalists”— that sacrificed such political processes at the altar of judicial processes — read the ICC court cases against President Uhuru Kenyatta and Deputy President William Ruto. Moving from an agenda of political reform to revenge.

First, let us recall — correctly — what the internal constituency of “human-rights fundamentalists,” together with the private sector and the “international community,” put on the table for the negotiations in 2008.

It was in fact the “fundamentalists” who lobbied for a comprehensive mediation agenda that went beyond a political settlement (addressing the trigger for the violence) to addressing the political instrumentalisation and mobilisation of ethnicity (the proximate cause of the violence) as well as political reform — including finalisation of the constitutional reform process and, yes, land reform (the structural cause of the violence).

Second, reaching a political settlement (addressing the trigger) was the hardest part of the negotiations and took the longest to do. Contrary to Mamdani’s thesis, agreeing to political reform (addressing the structural causes) — including constitutional and land reform — was easy for the political protagonists. Because (herein lies the rub) political reform has always been the bone that political protagonists in Kenya have thrown to pacify the people.

Third, and most importantly, the promise of political reform has always (always!) failed to be realised in Kenya because of the political instrumentalisation and mobilisation of ethnicity.

Thus, it is the political protagonists who have failed to act on reforms with respect to land. And it is the political protagonists who have continued to politically instrumentalise and mobilise ethnicity in so doing.

If “human-rights fundamentalists” have determined that addressing the political instrumentalisation and mobilisation of ethnicity has to be dealt with — including through judicial processes — it is on the basis of an assessment of what most impedes realisation of the promise of political reform. Which is individual political protagonists who have no credible constraint on their behaviour. Except the law.

L. Muthoni Wanyeki is Amnesty International’s new regional director for East Africa. This column is written in her personal capacity