In Kenya, ICC Ocampo's arrival stokes new look at election violence

The arrival of Luis Moreno-Ocampo to Nairobi today, on paper, is no more than a quick meeting to set up other meetings. But for many Kenyans, Mr. Ocampo's arrival raises hopes that the victims of the 2008 post-election violence – apparently orchestrated by top Kenyan politicians – may finally see some form of justice.

The Argentinian prosecutor of the International Criminal Court in The Hague has his work cut out for him. Kenya's political class, having signed in early 2008 an agreement to prosecute the kingpins of the election violence in Kenya or formally request the ICC's intervention, has ended up doing neither.

In his meeting today with President Mwai Kibaki and Prime Minister Raila Odinga – the two rival leaders at the crux of the election dispute – Mr. Ocampo will make clear that the ICC will intervene, with or without the government's help.

So while Ocampo – famous for filing war-crimes charges against the sitting president of Sudan for the deliberate targeting of civilians in the Darfur conflict – will almost certainly not fly home with a planeload of Kenyan war criminals, many Kenyans see this as a turning point, where leaders who may have once killed with impunity realize that their actions have consequences.

"Kenyans are divided and confused over all the euphoria of Ocampo's visit," says Wafula Okumu, a Kenya expert for the Institute for Security Studies in Tshwane (Pretoria), South Africa. "Some people will argue that Ocampo is trying to impose his will on the country, but Kenyans had a lot of opportunities and time to put this thing to closure, and ... failed to do so.

"So now, it's going to be very difficult time for the two principals [President Kibaki and Prime Minister Odinga], who will face pressure from their followers to get out of this mess. And they can't," says Mr. Okumu. "I think Ocampo's agenda is already set. He's going to let them know what will happen next in the carrying out of the investigation. The ICC is investigating in the field, collecting evidence. The process is inevitable."

No rigging, intimidation, looting

Ocampo's visit is just the latest signal to Kenyan politicians that the old manner of rigging elections, intimidating opponents, and looting the treasury are no longer acceptable for a country of Kenya's stature on the continent. Last month, former UN Secretary General Kofi Annan visited Kenyan leaders to remind them of the commitments they made to settle the deep issues that set Kenyans at each others' throats, and the US assistant secretary of State for Africa, Johnnie Carson, informed Kenyans that the US had identified and banned top Kenyan politicians from travelling to the US, because of their opposition to reform.

The sustained international pressure underlines that Kenya is too important to be allowed to return to the tense days after the Dec. 27, 2007, elections, when violence by political activists killed some 1,500 people, displaced around 300,000, and cut off key supply routes for food, fuel, and other essential supplies for most of Kenya's neighboring countries, from Sudan to Uganda, Rwanda, and beyond.

"I informed them, in December, I would request to the judges of the International Criminal Court to open an investigation and that is the process established by the Rome Treaty," Ocampo said today at a press conference at the president's residence. "I explained to them that I consider the crimes committed in Kenya were crimes against humanity, therefore the gravity is there. So therefore I should proceed."

Kenyans' patience wearing thin

Ocampo's visit comes at a time when Kenyan politicians are exerting pressure on Kibaki and Odinga to slow the process of any ICC investigation, and when progress toward rebuilding a stable government is beginning to halt. The patience of many Kenyans is wearing thin. On Kenya's radio shows, in its strident newspapers, and in tea rooms and front porches across the country, Ocampo's arrival is the dominant subject for chatter.

"There are some people who think he is coming to Kenya to arrest senior guys who are accused of doing the violence," says John Kanyi Kuria, a small businessman from Magina, 40 miles north of Nairobi. "It means that again all we are talking about is whether that election was stolen, and why the chaos happened afterward."

But, Mr. Kuria said, Kenyans strongly believe the key point is to expose the decades-long pursuit of power by the country's elite, which led to the election being rigged in the first place.

"That's what everyone's missing in this headlong rush to prosecute just the violence," says Tom Wolf, a Kenyan political analyst and pollster. "Kenyans' profound concern over the mess-up in the electoral process has completely escaped any and all of this judicial activity. It's not just judicial, it's intensely political."

The shift in attention away from the factors that led to the violence and toward prosecution Mr. Wolf said, shows the "profound imbalance" between Kenyans' yearning for electoral reform and "international institutions using their weight to bring down judgments on what's right and what's wrong."

Even the likelihood of prosecutions seems far off.

Senior Kenyan ministers agreed during meetings with Ocampo in July that the government in Nairobi would itself refer the case to the ICC if credible local prosecution mechanisms were not established by Sept. 30. That deadline passed without satisfactory progress. But now, sources close to both Kibaki and Odinga have said that there will be no "referral" from the Kenyan government.

"It was never going to happen that these guys shopped their mates to international justice," says a European diplomat in Nairobi, speaking on condition of anonymity. "If they did... there'd be names flying all over the place, maybe even including those two principals themselves."

Secretary: Ocampo entrance is premature

Privately, Ocampo's staff express confidence that there would still be a referral to the ICC from within the Kenyan government. If that doesn't happen, the office of the prosecutor has the power to refer the case itself to the ICC's Pre-Trial Chamber. With enough evidence, a case can be opened, with or without Kenyan government approval.

This possibility has incensed some.

Thuita Mwangi, permanent secretary for foreign affairs who advised on the establishment of the ICC in 1999, said that national courts must take pre-eminence over ICC proceedings. This is enshrined in the Rome Statute which established the Court, he said in an article Wednesday in Kenya's Daily Nation, headlined "Ocampo has no business taking over the poll violence cases."

"The available government options for prosecutions have not been exhausted," he argued, suggesting Kenya's courts could handle the cases. "It follows, therefore, that the entry of the ICC Prosecutor is both premature and clearly inconsistent with the letter and spirit of the statute."

Few agree.

"Kenyans know that that other option doesn't exist," says Mwalimu Mati, director of Mars Kenya, a governance and anti-corruption watchdog. "All our hopes have now tended to get pinned on Moreno-Ocampo, because the domestic prosecutorial system has quite obviously not been moving.

"People wanted justice and they still want justice, but if the ICC was not part of the scheme then we'd forget about any prosecutions because we know there is simply no political will to do anything here."

––

In Kenya's post-election violence, one radio station brought calm and urged nonviolence. Read more here.