Global Policy Forum

That Kenya's top political leaders would attempt to protect their own people was inevitable, just as it was inevitable that such efforts would fail. With the departure of International Criminal Court (ICC) prosecutor Luis Moreno-Ocampo on Saturday it is clear that those Kenyan politicians deemed to be most responsible for whipping up communal violence after the contentious December 2007 elections will face their day in court, not at home in Kenya, but at the ICC in The Hague.

Kenyan Prime Minister Raila Odinga told reporters on Saturday that his government could not officially refer the post-election violence cases to the ICC because "it is only when a legal system has failed that direct referral is done." But other top cabinet members such as Mutula Kilonzo, the Justice Minister, say the Kenyan government will cooperate fully with the ICC's investigation and will hand over accused Kenyans for prosecution.

It's a delicate high-wire act for Kenya's leaders, who must appear to protect the interests of their supporters ahead of a new election in 2012 but also must cooperate with international authorities or risk prosecution themselves. Failing to secure official Kenyan permission to proceed will now require Ocampo to seek permission from the ICC's own pre-trial chamber, which given the strength of the evidence in hand is expected to be approved quickly.

"On one hand, this trip is a failure, because the Kenyan government did not hand over the case to the ICC," says Wafula Okumu, a senior researcher at the Institute for Security Studies in Tshwane (Pretoria) South Africa. "But on the other hand, Ocampo is upbeat about this case. He has a quite strong case to present at trial. The evidence available from local human rights commissions and from the Waki commission (a national government investigation into the violence) gives him a very strong case."

Unlike other cases on the ICC docket, including the trials of former Liberian president Charles Taylor and former Serbian leader Radovan Karadzic, the case on Kenyan post-election violence has an almost perfect connect-the-dots trail of evidence between a few top Kenyan leaders and the violence that killed some 1,500 civilians. Roughly 1,100 victims were killed in mob attacks and 400 more were killed by the Kenyan police.

Some in Kenya worry that a court case may fuel a new wave of unrest.

"The technological advances in Kenya also make it strong, because most of the statements and actions were recorded on video, or audio tape, or print media," says Mr. Okumu. He says the hard part will be managing the repercussions of going after Kenyan politicians who may have used violence to gain power and may use violence to hold on to it. "It's going to be a very difficult time to prosecute the perpetrators of violence. The four to six people who are likely to be on Ocampo's list have to make a decision, either to have their supporters really oppose the indictments (and cause unrest) or to back another candidate in the upcoming elections who will guarantee their interests."

Moving quickly is paramount and Ocampo knows it. Kenya's next national elections are to be held at the end of 2012 but the country's leaders will hit the campaign trail far earlier.

In order to minimize the potential for violence several prosecutions of those who orchestrated it last time must be underway well before the next polls.

"Everyone is worried (about) the next election in Kenya," Ocampo told reporters on Saturday. "I understand the importance of speed and I am working to be sure that during 2010 we will be able to complete the investigations and to define who the accused are, they have to face justice and you can have a peaceful election."

Defining 'who the accused are' will not be difficult. Ocampo will be able to draw on a post-election enquiry headed by Philip Waki, whose investigations pointed to a list of 10 key suspects. That list has never been made public but it is in Mr Ocampo's possession.

"I think I have a strong case because the Waki Commission did a very good report and there are other reports from the UN and human rights groups," Mr Ocampo said.

"Once we start seeing some of our most famous, or infamous, politicians dragged to The Hague and standing in that dock, you can't imagine the impact that will have," said Mwalimu Mati, director of Mars Group, a Kenyan governance watchdog. "Finally there will be evidence that you can't get away with it any more in Kenya, and that will ease tensions ahead of the next election."

The difficulty, however, may be getting those "famous" faces to The Hague at all.

Kenya's prime minister, Raila Odinga, has promised full cooperation with the ICC.

"But will that really happen when one or two of his closest allies, whose supporters' votes got him and his party into government, are named by Ocampo," asked a Western diplomat who spoke on condition of anonymity. "If by the next election all we have is a bunch of indictments, summonses to appear, even arrest warrants... and those named still at large in Kenya, then the ICC is going to be exposed as powerless. That is extremely dangerous."

Ocampo's team is expected back in Kenya early in the new year to begin on-the-ground investigations.

"That'll be the first time we see whether the government really is going to cooperate or not," said Mr Mati.

An point which appears to have been missed in the clamor around Mr Ocampo's visit is that the ICC is likely only to go after at most a dozen senior figures suspected of masterminding the violence.

"What about all their foot soldiers," asked Gitobu Imanyara, an outspoken MP who is pushing for Kenya's parliament to enact a law to set up a local tribunal to prosecute lower-level suspects.  "Six guys at The Hague, if they ever get there, did not kill 1,100 people. We must not come at this whole thing half-hearted."