Between December 2007 and February 2008, in the aftermath of a disputed presidential election, tensions in Kenya erupted into a civil conflict that rocked the entire continent. The violence, which claimed the lives of 1,200 people and displaced at least 300,000 more,⁽²⁾ was directly fomented by politicians and civil servants, but was exacerbated by criminal gangs and long-standing ethnic divides. The intensity of the clashes left the watching world dumbfounded: though far from perfect, Kenya was viewed as a beacon for peace, democracy, and stability in a turbulent region. A power-sharing compromise between the incumbent, Mwai Kibaki, and the purported winner of the elections, Raila Odinga, eventually restored order.⁽³⁾

In the peace deal, the parties agreed that the architects of the violence would be prosecuted in Kenya or at the International Criminal Court (ICC),)⁽⁴⁾ a permanent court with jurisdiction over a limited class of international crimes.⁽⁵⁾ Until recently, however, there was little progress in bringing the culprits to justice. Following the Government’s failure to establish a special tribunal, the ICC agreed in March 2010 to investigate Kenya’s post-election violence.⁽⁶⁾ In December 2010, the Court named five prominent political leaders and one radio executive as key suspects and summoned them to stand trial at The Hague.

It is still too early to draw permanent conclusions regarding the implications of these investigations. On one hand, supporters welcome the initiative as a move towards the greater accountability of a hitherto untouchable political elite. Conversely, detractors fear that the ICC’s involvement could trigger further violence.⁽⁷⁾ This article adopts a cautiously optimistic perspective. If early reactions to the ICC’s announcement are confirmed, and future rulings are adequately enforced, the judicial process can indeed strengthen Kenya’s peace. Furthermore, casting a brighter spotlight upon Kenya’s traditionally opaque political process could help overcome the entrenched culture of impunity enjoyed by its leaders, potentially creating beneficial spill-over effects for institutional reform across the board.

High stakes in Kenya

In the absence of a world Government, crimes against humanity like those perpetrated in Kenya were customarily prosecuted on an ad hoc basis, or referred to international tribunals sanctioned by the United Nations (UN) Security Council.⁽⁸⁾ The establishment of the ICC in 2002 was a radical departure from this status quo, altering the framework of international law. The ICC was granted jurisdiction to prosecute individual perpetrators of crimes against humanity, crimes of genocide, and war crimes.⁽⁹⁾ According to Chief Prosecutor Luis Moreno Ocampo, the Court serves the dual purpose of convicting criminals and shaping behavioural change.⁽¹⁰⁾ Deterring would-be criminals is thus a paramount objective.⁽¹¹⁾ The ICC’s clout has grown in recent years, and it has increasingly challenged the de facto immunity of political leaders in countries on the margins of global geopolitics.

Despite its ambitious goals and relatively short existence, the ICC has drawn criticism from a range of sources. Realists insist that the organisation has no real “teeth,” and does not command sufficient authority to compel member states to honour their treaty commitments.⁽¹²⁾ As a result, enforcement could prove problematic, especially if the suspects are major domestic power-brokers. It is also argued that, far from serving as deterrents, indictments could actually spur further violence. If avenues for reconciliation are foreclosed, the accused might conclude that they have no other option but to entrench their positions and perpetuate the cycle of conflict.⁽¹³⁾

ICC supporters maintain that the organisation is the last, best hope of stemming the tidal wave of atrocities afflicting the world.⁽¹⁴⁾ Due to its unique mandate, the Court has the potential to serve as a credible law enforcement mechanism and a powerful deterrent. However, as argued by John Bolton, an outspoken critic of the ICC’s relevance, deterrence ultimately depends on perceived effectiveness.⁽¹⁵⁾ To make leaders think twice before acting illegally, there must be successful indictments. Therefore, the stakes in Kenya are high for the ICC: the world is watching closely, and these investigations will influence the Court’s future credibility.

The Ocampo Six

When identifying key suspects, the ICC went straight for the jugular: the “Ocampo Six,” as they are frequently referred to in the media. These suspects include prominent political figures and the most recognisable name is Deputy Prime Minister and Finance Minister, Uhuru Kenyatta. The charges against Kenyatta include his purported affiliation to the Mungiki, a Kikuyu criminal gang, which killed, raped, and threatened individuals from other tribes.⁽¹⁶⁾ His inclusion carries important symbolic value: Kenyatta is the son of Kenya’s first president, and a prime candidate to succeed President Kibaki in 2012.⁽¹⁷⁾

The other suspects are: William Ruto, Higher Education Minister and a popular leader of the Kalenjin tribe; Francis Muthaura, Kenya’s most senior civil servant; Maj-Gen Hussein Ali, former Commissioner of the Kenya Police; Henry Kosgey, member of Odinga’s Orange Democratic Movement (ODM) and one of the country’s longest serving political leaders; and Joshua arap Sang, a controversial journalist and radio broadcaster.⁽¹⁸⁾ These individuals are suspected of directly organising and inciting violence, or of failing to intervene despite overwhelming intelligence. Whether by coincidence or by design, the suspects on the ICC’s list are evenly split: Kenyatta, Muthaura, and Hussein Ali are close allies of President Kibaki, while Ruto, Kosgey, and Sang have affiliations to Prime Minister Odinga.

The push towards greater accountability

The ICC’s investigations would be significant in any country, but particularly in Kenya where members of the political elite are believed to enjoy de facto judicial immunity.⁽¹⁹⁾ This situation is attributable to the gradual deterioration of institutions that could hold Government in check, and has arguably worsened since the post-election violence.⁽²⁰⁾ In fact, the coalition’s formation compounded fears that the two factions were colluding to safeguard their respective vested interests. In the words of John Githongo, Kenya’s former anti-corruption tsar: “there seems to have been a very democratic distribution of spoils: all sides have their snouts in the trough.”⁽²¹⁾ Although Kenyan civil society had previously linked the “Ocampo Six” to the post-election violence, popular opinion reflected a general scepticism that offenders would actually be brought to justice, due to their strong political ties.⁽²²⁾

Therefore, many Kenyans welcomed the ICC’s bold inclusions in their list of suspects as a positive development: sidestepping the flawed domestic judiciary was viewed as the only way of ensuring impartial trials.⁽²³⁾ Prosecutor Ocampo became a very popular figure in Kenya, and enjoyed broadly positive coverage in the country’s media.⁽²⁴⁾ As long as the investigations maintain such popular support, peace in Kenya is likely to endure. Those responsible for committing crimes against humanity, whether summoned to The Hague or not, would find it harder to attract followers for their political ends. Moreover, having witnessed the public shaming of top leaders, future agitators might think twice before incurring the wrath of the ICC and, most importantly, Kenya’s population. Given the high-profile nature of the trials, other leaders in the region might take notice and refrain from violating international law.

The potential spill-over effects of the investigations transcend the mitigation of violence: indicting top leaders could lead to a major shift in perceptions. If the political class is no longer viewed as untouchable, civil society and progressive leaders may be emboldened to take stronger measures to hold their Government to account across a wider spectrum of issues, from corruption to nepotism.⁽²⁵⁾ It is still too soon to verify the existence of these trends, but the investigations have the potential of becoming the proverbial pebble that triggers an avalanche.

However, there are clouds on the horizon. Despite public statements supporting the ICC trials by both President Kibaki and Prime Minister Odinga,⁽²⁶⁾ Kenya’s political elite reacted strongly against the investigations. This was to be expected, given the status of the “Ocampo Six,” and it suggests that the Court is actually viewed as a credible threat to their interests. Citing the ICC’s exclusive focus on Africa, members of the Parliament dismissed the Court as a neo-colonial fabrication and a menace to Kenya’s sovereignty.⁽²⁷⁾ A week after the public release of the list of suspects, Members of Parliament (MPs) voted overwhelmingly for a motion to withdraw Kenya’s membership from the Rome Statute of the ICC.⁽²⁸⁾

There is reason to believe that the bill is little more than a show of political solidarity, rather than a threat that could conceivably derail the investigations. Parliament has no powers under the Constitution to withdraw Kenya from an international treaty,⁽²⁹⁾ and, in any case, a unilateral suspension of a treaty in the absence of exceptional circumstances is prohibited under international law (Vienna Convention on the Law of Treaties of 1969).⁽³⁰⁾ Furthermore, even if Kenya succeeded in withdrawing, this would have no impact on the fates of the “Ocampo Six:” Kenya would still be responsible for obligations that arose when it was a party.⁽³¹⁾ Finally, should the suspects decide to delay their trials by engaging in political manoeuvres or by triggering civil strife, the ICC can issue international arrest warrants.⁽³²⁾

Popular opinion seems to confirm this analysis: in a recent survey, 73% of Kenyans expect the “Ocampo Six” to be tried before the ICC.⁽³³⁾ Therefore, it is not in the interest of Kenya’s Government to enact additional measures to shield the suspects. Further involvement could be perceived as an admission of guilt, or a condoning of the post-election violence. While the criticism that the ICC has focused exclusively on Africa is valid, it is an insufficient basis upon which to delegitimise the trials. Moreover, the investigations do not necessarily come at the expense of national sovereignty: the ICC is a court of last resort, and intervened in Kenya due to the inaction of domestic mechanisms.⁽³⁴⁾

However, the Government’s efforts are not confined to the Parliamentary motion. While reiterating the importance of Kenya’s membership to the ICC, President Kibaki instructed Vice President Stephen Kalonzo Musyoka to travel to African countries and win support for a bid to suspend the prosecutions.⁽³⁵⁾ South Africa and Uganda, amongst others, have already backed the initiative.⁽³⁶⁾ In fact, it appears that the upcoming African Union summit will approve a resolution urging the Security Council to order the suspension of ICC investigations in Kenya.⁽³⁷⁾ This is unlikely to deter the ICC judges: the Court disregarded a similar proposal in defence of Sudanese President Omar al-Bashir.⁽³⁸⁾

Despite these initiatives, Kenya is still a party to the Rome Statute of the ICC. Its leaders would do well to meet the country’s treaty obligations by honouring and enforcing the Court’s rulings, so that a peaceful Kenya can once again lead by example in a turbulent region.

Concluding remarks

The fortunes of Kenya and the ICC are inextricably linked. Success in Kenya would enhance the Court’s international credibility and its perceived effectiveness. On the other hand, by threatening potential perpetrators of crimes against humanity with tangible punishments, the ICC can become a powerful deterrent for conflict in Kenya and the wider region.

Undoubtedly, these scenarios are contingent upon the extent to which the current leaders will allow the investigations to continue unimpeded. But there is reason to be cautiously optimistic. This is the first time that the Court’s attention is directed at a respected member of the international community: previous indictments were targeted towards rebel commanders, such as Joseph Kony and Thomas Lubanga, or leaders of pariah states, such as Omar al-Bashir.⁽³⁹⁾ Kenya is fundamentally different. According to Muthoni Wanyeki, Executive Director of the Kenya Human Rights Commission, “Kenyans care what the world thinks, and they want answers.”⁽⁴⁰⁾

It would be naïve to conclude that the ICC, per se, can ensure Kenya’s long-term peace and fix the country’s flawed institutions. However, the Court does have the potential to mitigate the risk of future conflict by raising the costs of instigating violence. Moreover, by undermining the widespread conviction among Kenyans that their leaders are untouchable, the ICC’s involvement could be the catalyst for a gradual process of institutional reform. Therefore, allowing the investigations to proceed would be a small step in the right direction. After all, change must begin from somewhere.

NOTES:

(1) Contact Edoardo Collevecchio through Consultancy Africa Intelligence's Conflict & Terrorism Unit (conflict.terrorism@consultancyafrica.com).
(2) ‘Kenya and the International Court: will they go quietly?’, The Economist, 29 December 2010, http://www.economist.com.
(3) ‘Kenya and the International Court: will justice be done at last?’, The Economist, 8 April 2010, http://www.economist.com.
(4) ‘Kenya MPs vote to leave ICC over poll violence claims’, BBC News, 23 December 2010, http://www.bbc.co.uk.
(5) ‘Rome Statute of the International Criminal Court’, UN Office of Legal Affairs, 19 December 2003, http://untreaty.un.org.
(6) ‘ICC: Judges Approve Kenyan Investigation’, Human Rights Watch, 31 March 2010, http://www.hrw.org.
(7) ‘Will ICC bring justice or violence to Kenya?’ BBC News, 15 December 2010, http://www.bbc.co.uk.
(8) Such tribunals would include the International Criminal Tribunals for Rwanda and the former Yugoslavia.
(9) ‘Rome Statute of the International Criminal Court’, UN Office of Legal Affairs, 19 December 2003, http://untreaty.un.org.
(10) Allen, K., ‘ICC throws spotlight on African injustice’, BBC News, 15 December 2010, http://www.bbc.co.uk.
(11) Mennecke, M., 2007. Punishing Genocidaires: A Deterrent Effect or Not? Human Rights Review, 8(4), pp. 319-339.
(12) Bolton, J., 2001. The Risks and Weaknesses of the International Criminal Court from America’s Perspective. Law and Contemporary Problems, 64(1), pp. 167-180.
(13) Mennecke, M., 2007. Punishing Genocidaires: A Deterrent Effect or Not? Human Rights Review, 8(4), pp. 319-339.
(14) Wippman, D., 2000. Atrocities, Deterrence, and the Limits of International Justice. Fordham International Law Journal, 22, pp. 473-488.
(15) Bolton, J., 2001. The Risks and Weaknesses of the International Criminal Court from America’s Perspective. Law and Contemporary Problems, 64(1), pp. 167-180.
(16) ‘Kenya and the International Court: will they go quietly?’, The Economist, 29 December 2010, http://www.economist.com.
(17) ‘About the Ocampo Six’, The Standard, 22 January 2011, http://www.standardmedia.co.ke.
(18) Ibid.
(19) ‘For and against the ICC’, IRIN Africa, 20 January 2011, http://www.irinnews.org.
(20) Allen, K., ‘Has Kenya’s power-sharing worked?’ BBC News, 3 March 2009, http://news.bbc.co.uk.
(21) Ibid.
(22) ‘Kenya MPs vote to leave ICC over poll violence claims’, BBC News, 23 December 2010, http://www.bbc.co.uk.
(23) ‘Will ICC bring justice or violence to Kenya?’, BBC News, 15 December 2010, http://www.bbc.co.uk.
(24) ‘Kenya and the International Court: will they go quietly?,’ The Economist, 29 December 2010, http://www.economist.com.
(25) ‘For and against the ICC’, IRIN Africa, 20 January 2011, http://www.irinnews.org.
(26) Mathenge, Oliver, ‘MPs lobby discounts anti-ICC bills’, The Daily Nation, 17 January 2011, http://www.nation.co.ke.
(27) All five cases under investigation by the ICC involve African states: Kenya, Uganda, the Central African Republic, the Democratic Republic of Congo, and Sudan. For more information, see: Allen, K., ‘ICC throws spotlight on African injustice’, BBC News, 15 December 2010, http://www.bbc.co.uk.
(28) ‘Kenya MPs vote to leave ICC over poll violence claims’, BBC News, 23 December 2010, http://www.bbc.co.uk.
(29) Mutua, M., ‘Kenya: bid to pull nation out of ICC an act in futility’, The Daily Nation, 1 January 2011, http://allafrica.com.
(30) ‘Vienna Convention on the Law of Treaties’, UN Office of Legal Affairs, 23 May 1969, http://untreaty.un.org.
(31) Mathenge, Oliver, ‘MPs lobby discounts anti-ICC bills’, The Daily Nation, 17 January 2011, http://www.nation.co.ke.
(32) ‘Kenya and the International Court: will they go quietly?’, The Economist, 29 December 2010, http://www.economist.com.
(33) Ibid.
(34) ‘ICC: Judges Approve Kenyan Investigation’, Human Rights Watch, 31 March 2010, http://www.hrw.org.
(35) Baguma, Raymond, ‘Uganda backs Kenya on ICC trial’, New Vision, 18 January 2011, http://www.newvision.co.ug.
(36) Ibid.
(37) Heinlein, P., ‘Kenya Wins African Support to Defer ICC Prosecutions’, VOA, 21 January 2011, http://www.voanews.com.
(38) Ibid.
(39) Faul, Michelle, ‘Is Zenawi next on ICC’s indictment list?’ Ethiopian Review, 8 March 2009, http://www.ethiopianreview.com.
(40) Allen, Karen, ‘ICC throws spotlight on African injustice’, BBC News, 15 December 2010, http://www.bbc.co.uk.

Written by Edoardo Collevecchio ⁽¹⁾