Global Policy Forum

Prosecutor Arrives in Kenya on Trail of Post-Election Violence


By Daniel Howden

November 6, 2009


Some of Kenya's most powerful figures could find themselves in the dock at The Hague charged with crimes against humanity after the prosecutor of the International Criminal Court (ICC) said he would pursue the masterminds behind the country's post-election violence last year.

Luis Moreno-Ocampo arrived in Nairobi yesterday [November 5] for what is seen as the biggest test for the court since his decision to indict the serving president of Sudan, Omar al-Bashir. The chief prosecutor met with Kenya's President Mwai Kibaki and Prime Minister Raila Odinga before announcing that he would request permission from the pre-trial chamber at The Hague to start an investigation into the bloodbath that followed the disputed election.

Yesterday's move begins a process that could see influential members of Kenya's current government sharing quarters in the so-called "Hague Hilton" with the likes of Radovan Karadzic.

Mr Kibaki and Mr Odinga - who lead the creaking power-sharing government that emerged from peace talks - had the option to refer the case to the ICC themselves but chose to leave that to Mr Moreno-Ocampo in an effort to avoid a domestic backlash. The former poll rivals have been under intense pressure from close colleagues who are facing possible indictments.

The move follows the government's failure to set up a local tribunal to try those who masterminded the ethnic violence that left more than 1,100 people dead and tens of thousands more homeless. Most people died in ethnic clashes or were killed by the police after Mr Kibaki declared himself the winner of the poll in December 2007 and Mr Odinga cried foul. The reform package agreed as part of the peace deal to end the violence, which was brokered by former UN Secretary-General Kofi Annan, included a commission of enquiry into those who orchestrated the chaos. The government received the so-called "Waki list" of key suspects months ago, but has continually delayed taking action.

"The politicians have been judges in their own cases," said Omar Hassan from the Kenyan National Commission on Human Rights (KNCHR) who, like the majority of Kenyans, welcomed the intervention by the ICC. "Anybody in power would want to subvert a process leading to accountability for their own crimes."

The decision is also a departure for the ICC in Africa, which until now has confined itself to prosecuting cases coming out of civil war or armed conflicts. But the Argentinian prosecutor recently served notice that he intended to make Kenya "an example in managing violence". Speaking yesterday in Nairobi, Mr Moreno-Ocampo said, "I consider the crimes committed in Kenya were crimes against humanity, therefore the gravity is there."

Officially, the ICC prosecutor must wait until December to start work, but sources close to the investigation say that much of the evidence has already been compiled and that indictments could come as soon as February.

Since Mr Annan handed a list of a dozen of the most high-profile alleged masterminds to the ICC prosecutor last month, there have been howls of protest from senior politicians who argue that Kenya is capable of trying the suspects itself.

But among the public there is overwhelming support for high-profile ICC prosecutions in a country that has endured decades of crippling corruption scandals and where the political and business elite enjoy total immunity. Kenya was this year named for the first time among the list of "critically failed states" by the US-based Fund for Peace.

Some commentators have argued that Kenya's fragile coalition could be pulled apart by prosecutions aimed at a few individuals, launching the country back into ethnic clashes. But KNCHR's Mr Hassan shot back: "That argument is hogwash, there is no peace over justice, and there can be no peace without justice." There is little public confidence in Kenya's judicial system, which has a huge backlog of cases.

Post-election violence: political elite denies it all

The dozen names on the sealed list of suspects handed to the International Criminal Court are thought to include some of Kenya's most powerful politicians and businessmen. Uhuru Kenyatta has rebutted suspicions inThe New York Times that he is named. The finance minister and one of the richest businessmen in Kenya was among 219 names identified in a report on perpetrators of the violence by the Kenyan National Commission on Human Rights. He has applied to the court to have his name removed, along with agriculture minister William Ruto among the most powerful leaders in the Rift Valley area which saw the worst of the fighting. Mr Ruto also disputes the NY Times report.


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