ICC case highlights divide between political elite and Kenyans hungry for change

When Luis Moreno-Ocampo, the International Criminal Court (ICC) prosecutor, named six top Kenyan politicians as suspected organizers of the mass violence of early 2008 that killed at least 1,200 people, many Kenyans cheered. Finally, many felt, the culture of impunity that allows Kenyan politicians to break the law at will has been shaken.

But the celebrations were short-lived. Just days after Mr. Ocampo named his list of suspects last month and submitted his evidence to the ICC, Kenya’s parliament voted almost unanimously Dec. 22 to urge President Mwai Kibaki to withdraw from the ICC. Calling the ICC a tool of the West to punish developing nations, some Kenyan politicians, including Vice President Kalonzo Musyoka, went on a tour of African capitals to urge them to reject the ICC as well.

Now, Kenyans are wondering whether their country has truly changed, despite the ICC investigation and a new, stricter Constitution that has created an independent judiciary.

“This is the most delicate period, almost as delicate as the aftermath of the 2007 elections,” says Njeri Kabeberi, director of the Center for Multiparty Democracy in Nairobi. “How Kenyans behave, and how their leaders behave, is going to determine how this country will survive in the future.”

Kenya is fortunate to have a vibrant, if noisy, civil society, Ms. Kabeberi says, which can hold Kenyan politicians accountable for their actions. “If the next few months evolve with good decisions, we will have crossed over the bridge to a new Kenya. If they handle things carelessly, we can sink.”

Majority Kenyan support for ICC

The most striking aspect of Kenyan politics today is contained in this fact: While parliamentarians voted on the resolution to pull the country out of the treaty that binds it to the ICC, citizens were telling opinion pollsters that they supported the ICC. A Dec. 14 poll by Kenyan opinion polling firm Synovate found that 85 percent of Kenyans support the ICC investigation, and a Dec. 24 poll by Synovate found that 73 percent were either confident or thought it was possible that the so-called Ocampo Six would be convicted for their roles in encouraging ethnic violence following the flawed national elections on Dec. 27, 2007.

This gap between politicians and the public they serve may be troubling, but it shows that in a very real sense that the rules of politics have changed in Kenya. And the change has taken Kenyan politicians by surprise.

“If you look at the reaction over the last two years, it’s astounding,” says Muthoni Wanyeki, executive director of the Kenyan Human Rights Commission in Nairobi. “They really didn’t expect the ICC prosecutor to move as fast as he did. They thought this would drag on, but now they act as if they are cornered.”

Ms. Wanyeki says there has been a “seismic shift.” “Whether Ocampo has enough evidence or not, this is the first time ever that someone in the political elite will pay for what they did.”

Amid the large number of Kenyan politicians fighting a rear-guard action to undermine Kenya’s adherence to the Rome Statute, which created the ICC in The Hague, Netherlands, there are a handful who still give it full support. Martha Karua, an independent parliamentarian who once served as Justice Minister in the early days of the current coalition government, was the lone parliamentarian voting against the resolution urging Kenya’s government to pull out of the ICC.

Kenya’s current justice minister, Mutula Kilonzo – who like Ms. Karua served on the negotiation team that ended the post-election crisis – also has defended the ICC investigation and said that withdrawing from the ICC would be unconstitutional.

ICC withdrawal won't stop case

Even if Kenya does withdraw, the process would take a year, and it would have absolutely no effect on the current ICC case since the crimes took place while Kenya was a signatory to the Rome Statute, and the investigation began at the behest of the Kenyan government when the treaty was in force. The Ocampo Six include former Education Minister William Ruto, Deputy Prime Minister Uhuru Kenyatta, cabinet minister Henry Kosgei, top civil servant Francis Muthaura, former police commander Hussein Ali, and radio journalist Joshua Arap Sang.

"We cannot pull out, unless we form a credible judicial system and plans are in top gear," says Mr. Kilonzo in an interview. "We will soon appoint a new chief justice and a deputy public prosecutor so as to restore sanity in our judicial system."

Kilonzo also poured cold water on efforts by his fellow cabinet members to bail out the Ocampo Six, including a proposal by Vice President Musyoka to force the Kenyan government to pay legal fees of up to 4.6 billion shillings ($57.5 million) for the Ocampo Six’s defense. Noting that the proposal to pay legal fees had been sent to Finance Minister Uhuru Kenyatta (himself one of the Ocampo suspects), Kilonzo says that Musyoka "cannot write to Uhuru, who himself is a suspect in this matter, because Kenyans can only read mischief."

Who else flouts ICC authority?

Kenya is by no means the only country to flout the ICC’s authority. The United States, while it participated in negotiations to create the statute, has steadfastly refused to sign the Rome Statute, at least in part to prevent its soldiers and commanders from facing war crimes charges for their conduct in Iraq and Afghanistan.

And Sudanese President Omar al-Bashir, indicted by the ICC for human rights violations, war crimes, and genocide for his role in the ongoing Darfur conflict, has refused to present himself to The Hague for trial. None of the half-dozen countries Mr. Bashir has visited in Africa and the Middle East have acted on warrants for his arrest.

For this reason, some Kenyan pundits say that Kenyan politicians – whether they support the Ocampo Six or not – are working hard to delay the possibility of an ICC trial over post-election violence. Some may also be hoping that their renewed proposal to create a local independent tribunal will obviate the need for a Hague trial.

Yet John Githongo, who served as President Kibaki’s top corruption fighter before resigning because of death threats, says that the days are numbered for Kenya’s old, corrupt, and violent political elite.

“They have never come across a problem that they can’t bribe, intimidate, or kill,” says Mr. Githongo. “This is not a direction that the elite would have chosen, and they will fight each step of the way.”

'Sowing seeds of war'

“Should they chose to break with the international community, then we shall see violence, we’ll Zimbabwe-anize,” Githongo says, adding that violence will be used by Kenyan politicians to steal resources from weaker Kenyans in order to perpetuate themselves in power, as Zimbabwe President Robert Mugabe’s party has done since 2000.

“The future of the ICC will be made or broken in Kenya,” Githongo says. “In the Kenyan elite, the ICC has come up against a very tough elite, well organized, well funded, sophisticated, and educated. But the elite is on the back foot, because the people want change.”

Jane Mati, a research fellow at the Mars Group Kenya, an anticorruption watchdog group, says Kenyan parliamentarians are “adept” at using Kenyan law that advance their own personal agendas. “The suspects will use all muscle they can to make sure [the ICC trial] doesn’t happen. And they will be sowing the seeds of the next war.”

Kenyans can only blame themselves for the politicians they elect, she adds. “They understand how to do outrageous things without outraging us.”

Her husband, Mwalimu Mati, adds, "Or they understand that we don’t know what outrageous means.”

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