Why ICC trial of six prominent Kenyans would be a first

The chief prosecutor of the world's only permanent war-crimes tribunal has accused six leading Kenyans of crimes against humanity in a case that could break Kenya's pattern of impunity.

After more than a year of investigations, the chief prosecutor of the world's sole standing war-crimes tribunal has accused six prominent Kenyans of orchestrating the post-election violence that killed 1,200 people three years ago.

Luis Moreno-Ocampo said on Wednesday that he has evidence that all were involved in the perpetration of crimes against humanity, including murder and ethnic cleansing. He has brought two separate cases, with three defendants each.

If judges at the International Criminal Court (ICC) agree, the six men will be summoned to appear at The Hague, Netherlands – and issued arrest warrants if they fail to comply.

If the two cases come to trial, it will mark a first for Kenya. There has never yet been a single successful prosecution for senior Kenyan figures implicated in a series of alleged gross crimes of violence or corruption.

“Kenya is turning a page in its history, moving away from impunity and divisionism toward an era of accountability and equal opportunity,” said President Obama in a statement Wednesday.

“I believe that the Kenyan people have the courage and resolve to reject those who would drag the country back into the past and rob Kenyans of the singular opportunity that is before them to realize the country’s vast potential.”

Florence Wambugu, a woman selling grilled maize on a street corner in an upmarket Nairobi suburb, agreed with Mr Obama.

“This is something we know we cannot do ourselves, even if so many of want these people to go to court,” she said.

“In Kenya, they would buy their way to freedom. There, in Europe, we hear that you cannot do that. They must face their music, and others wanting to copy their evil deeds will be made to think twice.”

The six accused

Mr. Moreno-Ocampo, the ICC's chief prosecutor, has drawn up two cases, with three accused in each.

The first involves William Ruto, the suspended higher education minister, Henry Kosgey, the industrialization minister, and Joshua Sang, a presenter on a local-language radio station.

All are accused of involvement in crimes against humanity including murder, ethnic cleansing, targeting supporters of rival political parties, and torture.

The second case involves Uhuru Kenyatta, the deputy prime minister and son of Kenya's founding father; Francis Muthaura, head of the civil service and a close ally of President Mwai Kibaki; and Maj. Gen. Hussein Ali, the former chief of police.

That trio is linked to crimes against humanity, murder, ethnic cleansing, inhumane acts, and sexual violence. Most of the men swiftly denied any wrongdoing Wednesday.

"These were not just crimes against innocent Kenyans," said Moreno-Ocampo, who is pursuing separate cases against Sudan’s president, Congolese warlords and Ugandan militia leaders.

"They were crimes against humanity as a whole. By breaking the cycle of impunity for massive crimes, victims and their families can have justice."

Kenyan president stands by those accused – so far

The ICC judges are expected to spend the next few weeks going through the 158 pages of evidence presented Wednesday by Moreno-Ocampo.

If they agree with him, the six men will be summoned to appear before the court, and arrest warrants will be issued if they fail to comply.

In what Mwalimu Mati, director of anti-graft watchdog Mars Kenya, called a “distressing sign,” President Kibaki has already stated that he will not ask those members of his government named in the list to step aside until charged.

“The people who have been mentioned have not yet been fully investigated as the pre-trial process in The Hague has only but began,” Mr. Kibaki said in a statement.

“They therefore cannot be judged as guilty until the charges are confirmed by the court. Calls for action to be taken against them are therefore prejudicial, preemptive and against the rules of natural justice.”

For Mr. Mati, this is not enough.

“These are people who will wake up tomorrow and go to work for the government, despite being accused of rape, murder and ethnic cleansing,” he said.

“Of course, they are innocent until proved guilty. But it does seem that the president is sending totally the wrong message by starting this whole thing by appearing to stand by them.”

But other Kenyans believe Ocampo has gone too far.

"Ocampo has thrown everybody off balance and this decision to charge these politicians does not reflect the mood of the people," says Nairobi lawyer Ken Ogeto.

Some have worried about another outbreak of violence in the Rift Valley, home to three of the six accused – Mr. Ruto, Mr. Kosgey, and Mr. Sang.

But in the Rift Valley town of Eldoret, scene of much of the post-election violence in early 2008, Ken Wafula says that the area remains calm, and adds, "I have not, as a non-Kalenjin, received any threats as it was during the post-election violence."

Muchiri Kioi contributed reporting from Nairobi.