Kenya: Impact of the ICC Proceedings
International Crisis Group
Although the mayhem following the disputed December 2007 elections seemed an exception, violence has been a common feature of Kenya’s politics since the introduction of a multiparty system in 1991. Yet, the number of people killed and displaced following that disputed vote was unprecedented. To provide justice to the victims, combat pervasive political impunity and deter future violence, the International Criminal Court (ICC) brought two cases against six suspects who allegedly bore the greatest responsibility for the post-election violence. These cases have enormous political consequences for both the 2012 elections and the country’s stability. During the course of the year, rulings and procedures will inevitably either lower or increase communal tensions. If the ICC process is to contribute to the deterrence of future political violence in Kenya, the court and its friends must explain its work and limitations better to the public. Furthermore, Kenya’s government must complement that ICC process with a national process aimed at countering impunity and punishing ethnic hate speech and violence.
In the past, elites have orchestrated violence to stop political rallies, prevent opponent’s supporters from voting, and – as in the 2007-2008 events – intimidate rivals. In the aftermath of the crisis, a Commission of Inquiry into Post-Election Violence (CIPEV), chaired by Kenya Court of Appeal Judge Philip Waki, was established to investigate the facts and circumstances of the election violence. Among its major recommendations was creation of a Kenyan special tribunal to try the accused organisers. Mindful of the history of political impunity, it recommended that if the government failed to establish the tribunal, the Panel of Eminent African Personalities that under Kofi Annan’s chairmanship mediated the political crisis should hand over a sealed envelope containing the names of those who allegedly bore the greatest responsibility for the violence to the ICC for investigation and prosecution. (…)
A bill to establish a special tribunal was introduced twice in parliament but on both occasions failed to pass. (…) Annan consequently transmitted the sealed envelope and the evidence gathered by Waki to the ICC chief prosecutor, Luis Moreno-Ocampo, on 9 July 2009. Four months later, on 5 November 2009, the prosecutor announced he intended to request authorisation to proceed with an investigation to determine who bore greatest responsibility. (…)
When Moreno-Ocampo announced, on 15 December 2010, the names of the six suspects, many of the legislators who had opposed the tribunal bill accused the court of selective justice. It appears many had voted against a Kenyan tribunal on the assumption the process in The Hague would be longer and more drawn out, enabling the suspects with presidential ambitions to participate in the 2012 election. To many Kenyans, however, the ICC’s involvement sends a signal that entrenched impunity for wealthy and powerful politicians will not be permitted to endure. If national courts are unable or unwilling to prosecute perpetrators of gross electoral violence, the international court can. For a political class used to impunity, this is a likely game changer for how politics are conducted in the country.
The 2012 presidential and legislative elections will play out against the backdrop of a significant ICC role that Kenyan politicians will be unable to influence. (…)
(…) The ICC is expected to announce in late January 2012 whether it has confirmed charges against each of the six suspects and will proceed to trials. The court’s rulings will introduce an additional – possibly crucial – factor into an already pivotal election.
If the court, as is expected, confirms charges for both cases on the same day, this could be a crucial step to help defuse a rise in ethnic tensions. There are real fears that if charges are dropped for suspects of one ethnicity and confirmed for those of another, ethnic tensions could increase sharply, regardless of the legal merits. The ICC’s decisions will continue to play a pivotal role in Kenya’s political process, especially in the crucial 2012 election. The court appears cognisant that these will not be viewed by many Kenyans simply as legal decisions and that the timing and framing of proceedings and rulings will inevitably have an impact in heightening or tamping down tensions. Accordingly:
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Please see report.