Kenya and ICC Battle Over Impunity
9 Feb 2011
By Jon Rosen for ISN
Since 15 December, when International Criminal Court (ICC) chief prosecutor Luis Moreno-Ocampo requested summons for six individuals on charges related to the ethnic clashes that left more than external page1,100 dead and up to 600,000 displaced, a critical mass of political elites has rallied to impede the process.
A week after Ocampo's announcement, Kenyan MPs voted overwhelmingly to bring a bill to Parliament that would external pagewithdraw the country from the Rome Statute, the treaty that established the ICC. Yet such a move would not affect the current proceedings, since the cases were filed while Kenya was party to the Rome Statute and still under obligations to the court. So Kenyan leaders have now resorted to stalling tactics, drumming up African support for a bid to defer the case for a year through a petition to the UN Security Council, as allowed under Article 16 of the Rome Statue. On 2 February, the African Union (AU) external pagesubmitted a deferral request, following a weekend summit in Addis Ababa in which African leaders endorsed the move and AU Chairman external pageJean Ping accused Ocampoof applying "double standards" in his investigation.
"We Africans and the African Union, we are not against the ICC," Ping told reporters. "We are against the way Moreno-Ocampo is running justice."
Pursuing justice or playing politics?
According to opinion polls, a majority of Kenyans external pagesupport the ICC process, which was launched after Kenya's government failed to establish a local tribunal for key perpetrators of the violence. Nonetheless, Ping's words reflect widespread concern that Ocampo's list is arbitrary, biased against certain ethnic groups, and ultimately tainted by politics.
Chief among the criticism is Ocampo's failure to implicate President Mwai Kibaki or Prime Minister Railia Odinga, opponents in the December 2007 election and current partners in Kenya's coalition government. According to the ICC, prominent leaders of Odinga's Orange Democratic Movement (ODM) prepared a criminal plan to attack supporters of Kibaki's Party of National Unity (PNU) up to a year before the poll, which unfolded when then-incumbent Kibaki was declared the winner in a vote widely thought to have been rigged against Odinga. In response, officials on the PNU side mobilized criminal gangs and security forces to launch retaliatory attacks on supporters of the ODM in an ethnically-charged battle as much about land rights and perceived historical injustices as the row over the state house.
Though Ocampo insists he lacks evidence to indict the two principals, his naming of Odinga loyalist Henry Kosgey, and close Kibaki aide Francis Muthaura is evidence to some that culpability should go higher. Analysts have suggested that Kibaki and Odinga were left off the list to placate other African heads of state, or out of fear of threatening the coalition government, formed through negotiations after the disputed poll, which also led to the ICC investigation.
"Ocampo is a political player," said Macharia Munene, professor of International Relations at United States International University in Nairobi. "If he did something to destabilize the coalition government, he would be undermining the reason he is there."
While many in Kenya accept this logic, certain groups doubt Ocampo's work for other reasons. In Eldoret, site of some of the worst violence, many feel their ethnic Kalenjin community - with three names on the list - has been unfairly targeted. Here, accusations abound that Ocampo failed to conduct an independent investigation, relying instead on local reports on the violence that were manipulated to target Kalenjin leaders. Many accuse Odinga - a Luo who has since lost support of most Kalenjin - of colluding with Ocampo to keep himself off the list and the Kalenjin on it.
According to Ken Wafula, director of the Eldoret-based Center for Human Rights and Democracy, such claims have little truth and result from certain leaders' "political gimmicks" designed to exploit Kenya's ethnic divisions for their own power objectives. William Ruto, the most prominent Kalenjin on the list, has been particularly deceptive in his anti-Ocampo rhetoric, which - despite his long history of corruption allegations - is easily digested by most in his community.
Such posturing, says Wafula, is a prime example of why Kenya needs an outside body like the ICC to deliver - even if Ocampo's six are, as he argues, merely the tip of the iceberg.
"If you take the members of Kenya's Parliament, about 80 percent of them have participated in one way in violent campaigns," Wafula told ISN Insights. "The entirety of Kenya's political class are either practitioners of impunity or beneficiaries of impunity."
Too little too late
It's a damning indictment, one that Wafula says is the reason MPs external pagevoted against a bill to establish a local tribunal, where they would have been named and shamed in front of the Kenyan public - a move that prompted action by the ICC, which most assumed would take years to deliver justice. Now that this strategy has backfired, Kenyan officials are calling for justice at home, arguing the country's new constitution, adopted in August, provides the necessary legal framework to hold trials in Kenya.
Such maneuvering, however, is too little too late. By early March, the ICC's pre-trial chamber is expected to act on Ocampo's request, issuing summons - or arrest warrants if not satisfied that those implicated will appear voluntarily at The Hague.
Despite AU support, Kenya's plea for a deferral is likely to go unheeded. Under Article 16 of theexternal pageRome Statute, a deferral can be granted only if the Security Council (under external pageChapter VII of the UN Charter) determines the ICC process constitutes a threat to international peace and security. Since the court's March 2009 indictment of Sudanese President Omar Al-Bashir, AU bodies have made several unsuccessful calls to have his case deferred - a more reasonable plea than that of Kenya given continued instability in Darfur and the likely secession of southern Sudan.
In the Kenyan case, the deferral request is merely a last ditch effort by the political class to save its cherished culture of impunity. And if granted, it could have destabilizing consequences. According to Wafula, if the ICC process is seen to have failed, through a deferral or exoneration of key suspects, Kenya's next election, in 2012, could once again turn violent.
"If the international justice system fails, the perpetrators will say 'there is no where else you can take us now,'" he said. "The ICC must hold those named accountable. Otherwise, the arrogance of the 'victors' will take over the country and Kenyans will lose hope."
Though it is far from the ideal solution, and not above the whims of politics, most in Kenya agree the ICC is an ally in the fight to end impunity - a fight that will continue regardless of Kenyan leaders' attempts to stop it.