Electing two accused to the presidency has guided state policy towards frustrating the ICC process, writes Davis Malombe.
Over 1 300 Kenyans died and more than half a million others were displaced as a result of the post-election violence that erupted following the disputed results of the 2007 presidential poll. For more than five years, the victims have waited for the people responsible for these atrocious acts to be held accountable.
The commencement of cases against Kenyans indicted for crimes against humanity by the International Criminal Court (ICC) this year is both significant and symbolic for the victims. But it is now clear that electing two of the accused people to Kenya's presidency and deputy presidency has directed government policy towards frustrating the ICC process rather than focusing on justice for victims.
On September 5, just days before the opening of the trial of Deputy President William Ruto, Kenya's Parliament passed a motion to withdraw from the Rome Statute, which created the ICC. Although this has no legal bearing on the current cases, it suggests a worrying trend for the future, given Kenya's pattern of election violence.
Kenya opted for the ICC process. Former president Mwai Kibaki and former prime minister Raila Odinga made a commitment to support the court, in line with Kenya's national and international obligations to ensure accountability for egregious atrocities. Even before he was summoned to appear, Ruto visited the ICC in The Hague, displaying his support.
Kenya's commission of inquiry into post-election violence, the Waki commission, recommended establishing a local judicial process to deliver justice for victims, but the recommendation was shot down by MPs who cited a lack of trust in the judiciary. Who can forget their clarion call: "Don't be vague, it's The Hague!"
President Uhuru Kenyatta, who is being tried separately, and Ruto were members of this Parliament. This response, coupled with the fact that the Kenyan authorities cannot show any credible investigations or prosecutions of those in leadership positions for the crimes committed during the post-election period, means that the ICC remains the victims' greatest hope for justice.
The Rome Statute recognises the centrality of victims in the judicial process, and ensures that their voices are heard and that they can seek reparations.
The fact that Kenyatta and Ruto are set to appear before the ICC for trial sends a strong message that no one is above the law.
This is significant especially against the backdrop of Kenya's entrenched culture of impunity, with people in power using their positions to circumvent or frustrate the course of justice.
The culture was mostly responsible for electoral violence in 1992, 1997 and again in 2007.
The ICC process has survived political and legal hurdles instigated by the Kenyan government, aimed at frustrating the cases.
The government challenged the ICC's jurisdiction over the cases, but lost the challenge when the judges could find no evidence that national investigations of those named by the ICC prosecutor were taking place.
More recently, the government has sought support at the African Union and the United Nations Security Council to end the ICC cases.
The 12th summit of African heads of states and governments passed a resolution in May calling for a referral of the cases back to Kenya, in spite of the fact that the AU was instrumental in the Kenyan cases.
The AU's panel of eminent African personalities, led by Kofi Annan, played a significant role in mediating the national dialogue and reconciliation accord that led to cessation of the violence, formation of a coalition government and establishment of the Waki commission.
The commission gave Annan its report and a list of people recommended for investigation and prosecution by the ICC, if Kenya failed to set up a credible tribunal to try the perpetrators.
The efforts to pull out of the Rome Statute and to co-opt the AU contradict the lessons learned from the 2007-2008 post-election violence. Indeed, though Kenya's political elite persists in its revisionary narrative that the ICC is inimical to national peace and that what the country needs is to "just forgive, forget and move on", justice and accountability are the foundations of sustainable peace and development for any state and society.
Our experience during the past 50 years has proven that a failure to address the past fully only perpetuates a culture of impunity, the very basis of the crisis of governance and development crisis in Africa and other developing countries.
Justice delayed is justice denied. The 2007-2008 victims have waited for more than five years. The ICC must deliver on their expectations that it will offer an opportunity for the truth about the post-election violence to be unravelled in an impartial judicial process.
Davis Malombe is deputy executive director of the Kenya Human Rights Commission