Kenya's leaders split with the ICC

Kenyan leaders have finally split with the International Criminal Court, leaving the ICC to find alternative ways to pursue the perpetrators of 2007’s post-election violence which killed 1 133 people.

ICC chief prosecutor, Luis Moreno Ocampo, flew into Nairobi on November 5. His visit was widely expected to mark the final countdown for those Kenyan politicians and businessmen who instigated the violence. For some, it seemed the perpetrators would soon be packing their bags and heading to The Hague.
But within hours of his arrival, Ocampo learnt that the Kenyan government will not be referring the matter to him, despite previous agreements.

Ultimately President Mwai Kibaki and his co-principal in the coalition government, Prime Minister Raila Odinga, bowed to pressure from within their respective camps and could not muster enough political stamina to refer the case to the ICC.

This leaves Ocampo with one last option: to request the pre-trial chamber at The Hague to allow him to begin official investigations. Emerging from a meeting with Kibaki and Odinga, the prosecutor was clear that he will ask the court to allow him to do so next month.

But while Kenya’s political heavyweights were successful in blocking the government from referring the case, they were nonetheless shocked at the urgency with which Ocampo shifted gears while still on Kenyan soil.

Kenya’s post election violence erupted after the disputed 2007 presidential elections. It mostly affected the capital Nairobi and the Rift Valley, Central and Nyanza provinces. Following the violence the international community intervened and former United Nations secretary general, Kofi Anan, was sent to negotiate peace between the two main warring parties: namely the Party of National Unity, headed by Kibaki, and the Orange Democratic Party, led by Odinga.

The mediation process resulted in a peace deal where Kibaki agreed to share power with Odinga, with the latter taking the newly-created position of prime minister. But in signing the deal the two also agreed to pursue and punish those responsible for the violence.

The attempt to set up a local tribunal to punish the perpetrators, was stymied by Cabinet ministers and members of Parliament who, according to many, were themselves suspects. By referring the matter to The Hague, they apparently hoped to buy themselves more time, on the basis that the ICC had many other issues on its agenda. But Ocampo’s unexpected enthusiasm sent shivers down political spines—especially when he declared that Kenya could set a global precedent in terms of dealing with perpetrators of political violence.

More drama in the ICC-Kenya stand-off is yet to come. The fact that Kenya went back on its promise to refer the case also means Ocampo may not get state cooperation when it comes to investigating and arresting the culprits.

A special inquiry chaired by Court of Appeal judge Philip Waki has already identified a number of suspects for further investigation and possible prosecution. Their names lie hidden inside a sealed envelope. But the judge also recommended that the matter should go to The Hague if the Kenyan government failed to take action.

As Kenya moves closer to its next elections in 2012, the international community is keen to ensure that the 2008 violence is not repeated. But many of the suspected perpetrators have lofty political ambitions—with some, it is thought, aiming to become presidential candidates. They would probably do anything to avoid being tied up in a court process. Furthermore, political alliance- building ahead of 2012 has left the Cabinet and Parliament seriously divided, so there is little hope of any consensus.

Tough-talking Moreno has promised to make Kenya an example to the world, which means the ICC’s credibility is on the line. This has significant international implications,too. Where will the ICC’s spotlight fall next? On South Africa’s handling of last year’s xenophobic attacks, for example?

After all, South Africa is a signatory to the Rome Statutes which gives the ICC the mandate to investigate and prosecute such crimes.

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