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ICC case highlights divide between political elite and Kenyans hungry for change

A vast majority of Kenyans support an investigation against politicians accused of inciting violence, despite parliament's vote to pull out of the International Criminal Court.

By Scott BaldaufStaff writer, Muchiri KioiContributor / January 21, 2011

Members of the civil society demonstrate in support of the International Criminal Court in Kenya's capital Nairobi on Tuesday. The ICC has named six suspects they say were behind Kenya's post-election violence in 2008, which left 1,220 people dead and more than 350,000 displaced.

Noor Khamis/Reuters

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Nairobi, Kenya

When Luis Moreno-Ocampo, the International Criminal Court (ICC) prosecutor, named six top Kenyan politicians as suspected organizers of the mass violence of early 2008 that killed at least 1,200 people, many Kenyans cheered. Finally, many felt, the culture of impunity that allows Kenyan politicians to break the law at will has been shaken.

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But the celebrations were short-lived. Just days after Mr. Ocampo named his list of suspects last month and submitted his evidence to the ICC, Kenya’s parliament voted almost unanimously Dec. 22 to urge President Mwai Kibaki to withdraw from the ICC. Calling the ICC a tool of the West to punish developing nations, some Kenyan politicians, including Vice President Kalonzo Musyoka, went on a tour of African capitals to urge them to reject the ICC as well.

Now, Kenyans are wondering whether their country has truly changed, despite the ICC investigation and a new, stricter Constitution that has created an independent judiciary.

“This is the most delicate period, almost as delicate as the aftermath of the 2007 elections,” says Njeri Kabeberi, director of the Center for Multiparty Democracy in Nairobi. “How Kenyans behave, and how their leaders behave, is going to determine how this country will survive in the future.”

Kenya is fortunate to have a vibrant, if noisy, civil society, Ms. Kabeberi says, which can hold Kenyan politicians accountable for their actions. “If the next few months evolve with good decisions, we will have crossed over the bridge to a new Kenya. If they handle things carelessly, we can sink.”

Majority Kenyan support for ICC

The most striking aspect of Kenyan politics today is contained in this fact: While parliamentarians voted on the resolution to pull the country out of the treaty that binds it to the ICC, citizens were telling opinion pollsters that they supported the ICC. A Dec. 14 poll by Kenyan opinion polling firm Synovate found that 85 percent of Kenyans support the ICC investigation, and a Dec. 24 poll by Synovate found that 73 percent were either confident or thought it was possible that the so-called Ocampo Six would be convicted for their roles in encouraging ethnic violence following the flawed national elections on Dec. 27, 2007.

This gap between politicians and the public they serve may be troubling, but it shows that in a very real sense that the rules of politics have changed in Kenya. And the change has taken Kenyan politicians by surprise.

“If you look at the reaction over the last two years, it’s astounding,” says Muthoni Wanyeki, executive director of the Kenyan Human Rights Commission in Nairobi. “They really didn’t expect the ICC prosecutor to move as fast as he did. They thought this would drag on, but now they act as if they are cornered.”

Ms. Wanyeki says there has been a “seismic shift.” “Whether Ocampo has enough evidence or not, this is the first time ever that someone in the political elite will pay for what they did.”

Amid the large number of Kenyan politicians fighting a rear-guard action to undermine Kenya’s adherence to the Rome Statute, which created the ICC in The Hague, Netherlands, there are a handful who still give it full support. Martha Karua, an independent parliamentarian who once served as Justice Minister in the early days of the current coalition government, was the lone parliamentarian voting against the resolution urging Kenya’s government to pull out of the ICC.

Kenya’s current justice minister, Mutula Kilonzo – who like Ms. Karua served on the negotiation team that ended the post-election crisis – also has defended the ICC investigation and said that withdrawing from the ICC would be unconstitutional.

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