Kenya races to transfer ICC election violence case to Africa

Days after the conviction of former Liberian President Charles Taylor for war crimes, Kenya's president has accelerated his efforts to have the International Criminal Court cases against four senior Kenyan leaders transferred to a court in Africa.

Taylor’s conviction for war crimes on April 26 at The Hague based court sent shock waves across the African continents where senior political figures, including current Sudanese President Omar al–Bashir and former Ivorian President Laurent Gbagbo have been indicted. President Bashir is facing arrest by the court for war crimes and crimes against humanity committed in the Darfur region, while Mr. Gbagbo is under arrest at the Hague for charges of crimes against humanity for his role in the deaths of 3,000 people after he refused to cede power following disputed elections in late 2010.

For Kenya, where post-election violence left at least 1,300 people dead and 600,000 displaced following the flawed December 2007 elections, the International Criminal Court has set the stage for similar criminal cases against four senior Kenyan leaders deemed most responsible for orchestrating the violence. With two of those leaders – Deputy Prime Minister Uhuru Kenyatta and former Higher Education Minister William Ruto – both planning presidential runs in the upcoming elections, and still commanding support among their own ethnic groups, the Taylor conviction has become a rallying cry for Kenya to demand a "fairer hearing" on African soil.

The cases against Mr. Kenyatta, Mr. Ruto, former head of civil service Francis Muthaura, and radio journalist Joshua Sang were announced in January this year.

Drawing on documents and eyewitness accounts from victims and participants, the ICC's main prosecutor Luis Moreno Ocampo argues that these four men organized mob violence in the Central, Rift Valley, and Western provinces of Kenya, violence that sparked off after President Mwai Kibaki was declared the winner of the Dec. 2007 elections. In Western and Rift Valley provinces, mobs of ethnic Luo and Kalenjin supporters targeted ethnic Kikuyu neighbors who were presumed to have voted for President Kibaki, a Kikuyu. In Central province and in the town of Naivasha, Kikuyu mobs returned the favor, targeting the Luo and Kalenjin community who were presumed to have supported Ruto, a Kalenjin, and Prime Minister Raila Odinga, a Luo.

The violence raged for two months, before a mediation team led by Kofi Annan negotiated a new coalition government that included all the major players. Although those regions affected by the violence have since recovered, efforts to seek justice for the victims through a Kenyan-led tribunal have been rejected twice by parliament, a move that prompted the ICC to take up the case instead.

Now Kibaki is spearheading efforts to move the cases to the East African Court of Justice based in the Tanzanian town of Arusha. For Kibaki's supporters, trying the so-called "Ocampo Four" at the Hague is akin to ceding African sovereignty to European colonial powers. To date, all of the cases heard by the ICC have involved African leaders, a fact that many African intellectuals see as evidence that the court is simply a "neo-colonial" tool of rich Western nations against poorer African ones.

"The victims of the post-election violence deserve justice," Kibaki said in an address to the Kenyan parliament late April. The Kenyans facing triall also deserve a fair and legal hearing, he argued. He has called on citizens to remain calm, “even as we pursue the option of having a local mechanism to deal with any international crimes.”

The President's call for a trial at Arusha has drawn support from the heads of state of the East African Community. The EAC held at a meeting in Tanzania on April 28, and passed a resolution to expand the court’s jurisdiction to cover crimes against humanity.

The resolution had been preceded by another from the East African Legislative Assembly, which had urged the East African Community Council of Ministers to implore the ICC to transfer the cases to East Africa.

"We must never allow ourselves to return to neocolonialism," said Peter Munya, Kenyan member of the assembly, following the resolution.

Those who supported the resolution said that holding war-crimes tribunals at Arusha would strengthen local courts and dispense justice both to the accused as well as to survivors. Dora Byamukama, a Ugandan member of the assembly who was part of the Observer Mission to Kenya in the elections, said that the ICC cases were more symbolic, and failed to reach out at the core and heart of Kenyans. There is a precedent for holding war crimes tribunals at Arusha. Special tribunals were held there for war crimes committed in the Burundi civil war and the 1994 Rwandan genocide. 

The citizens will be facing another election later this year or early 2013, the first elections to be held under the new constitution, which was approved in 2010.

Kibaki, who has ruled the country since 2002, is expected to retire after the election. Kenyatta, the son of Kenya’s founding President Jomo Kenyatta, and Ruto have indicated their intention to contest in the 2013 Presidential elections to succeed Kibaki, despite the ICC cases. Local media reports say powerful elites around the president favour Kenyatta to succeed him.

The success of the ICC prosecutor in getting cases approved by the ICC surprised senior politicians, especially those allied to Kibaki’s wing of government and those who support Kenyatta, according to political analysts.

Since announcement of the cases, the politicians have backed efforts delay or withdraw them from the international court. The politicians successfully passed a non-binding resolution in parliament urging the president to pull Kenya out of the Rome Statue, the 1998 pact which established the ICC court.

While Kenyan politicians seem in broad agreement about moving the post-election violence cases to Arusha, Kibaki's efforts have stirred a heated debate among Kenyans over the suitability of the move.

Human rights activists have questioned the East African Court's capacity to handle the cases, saying the Rome Statute does not provide for the transfers out of the Hague. Activists have also argued the court is ill prepared to deal with the cases, despite the latest jurisdiction to handle criminal cases.

"The LSK (Law Society of Kenya) is opposed to the transfer of the cases," Eric Mutua, the LSK chairman told journalists in Nairobi on 30 April.

Among the court’s shortcomings, activists say, are its set-up, its mandate, and its funding.

"It’s a long shot," said Wainana Ndung’u, the executive director of the International Centre for Policy and Conflict. 

"The problem is that those who [are] proposing to move the cases are employing political approaches rather than technical and legal," he observed. "I don’t see it working in the current circumstances. There is a lot that need to be done, if the court is going to able to handle criminal cases of this nature." 

Many activists praise the notion of strengthening of the East African Court, but some also accuse Kibaki of attempting to protect the accused.

The attention that Kibaki is according the Ocampo Four cases raises questions about whether Kibaki himself fears prosecution, after he relinquishes power in 2013.  

"He may want a friendly court in such a situation," said Ndung’u.