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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.

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ICC withdrawal won't stop case

Even if Kenya does withdraw, the process would take a year, and it would have absolutely no effect on the current ICC case since the crimes took place while Kenya was a signatory to the Rome Statute, and the investigation began at the behest of the Kenyan government when the treaty was in force. The Ocampo Six include former Education Minister William Ruto, Deputy Prime Minister Uhuru Kenyatta, cabinet minister Henry Kosgei, top civil servant Francis Muthaura, former police commander Hussein Ali, and radio journalist Joshua Arap Sang.

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"We cannot pull out, unless we form a credible judicial system and plans are in top gear," says Mr. Kilonzo in an interview. "We will soon appoint a new chief justice and a deputy public prosecutor so as to restore sanity in our judicial system."

Kilonzo also poured cold water on efforts by his fellow cabinet members to bail out the Ocampo Six, including a proposal by Vice President Musyoka to force the Kenyan government to pay legal fees of up to 4.6 billion shillings ($57.5 million) for the Ocampo Six’s defense. Noting that the proposal to pay legal fees had been sent to Finance Minister Uhuru Kenyatta (himself one of the Ocampo suspects), Kilonzo says that Musyoka "cannot write to Uhuru, who himself is a suspect in this matter, because Kenyans can only read mischief."

Who else flouts ICC authority?

Kenya is by no means the only country to flout the ICC’s authority. The United States, while it participated in negotiations to create the statute, has steadfastly refused to sign the Rome Statute, at least in part to prevent its soldiers and commanders from facing war crimes charges for their conduct in Iraq and Afghanistan.

And Sudanese President Omar al-Bashir, indicted by the ICC for human rights violations, war crimes, and genocide for his role in the ongoing Darfur conflict, has refused to present himself to The Hague for trial. None of the half-dozen countries Mr. Bashir has visited in Africa and the Middle East have acted on warrants for his arrest.

For this reason, some Kenyan pundits say that Kenyan politicians – whether they support the Ocampo Six or not – are working hard to delay the possibility of an ICC trial over post-election violence. Some may also be hoping that their renewed proposal to create a local independent tribunal will obviate the need for a Hague trial.

Yet John Githongo, who served as President Kibaki’s top corruption fighter before resigning because of death threats, says that the days are numbered for Kenya’s old, corrupt, and violent political elite.

“They have never come across a problem that they can’t bribe, intimidate, or kill,” says Mr. Githongo. “This is not a direction that the elite would have chosen, and they will fight each step of the way.”

'Sowing seeds of war'

“Should they chose to break with the international community, then we shall see violence, we’ll Zimbabwe-anize,” Githongo says, adding that violence will be used by Kenyan politicians to steal resources from weaker Kenyans in order to perpetuate themselves in power, as Zimbabwe President Robert Mugabe’s party has done since 2000.

“The future of the ICC will be made or broken in Kenya,” Githongo says. “In the Kenyan elite, the ICC has come up against a very tough elite, well organized, well funded, sophisticated, and educated. But the elite is on the back foot, because the people want change.”

Jane Mati, a research fellow at the Mars Group Kenya, an anticorruption watchdog group, says Kenyan parliamentarians are “adept” at using Kenyan law that advance their own personal agendas. “The suspects will use all muscle they can to make sure [the ICC trial] doesn’t happen. And they will be sowing the seeds of the next war.”

Kenyans can only blame themselves for the politicians they elect, she adds. “They understand how to do outrageous things without outraging us.”

Her husband, Mwalimu Mati, adds, "Or they understand that we don’t know what outrageous means.”

RELATED: The six men accused of inciting Kenya's post-election violence

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