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

The International Criminal Court's prosecutor Luis Moreno-Ocampo arrived in Kenya to investigate the political leaders who perpetrated violence after Kenya's disputed elections in December 2007. Some 1,500 people were killed.

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"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."

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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."

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

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