For months, even years, Kenya’s politics has been conducted under the shadow of looming indictments from the International Criminal Court and its ambitious prosecutor, Luis Moreno-Ocampo, against those high-level political leaders who allegedly directed violence, including massacres of women and children, during the post-election disorder nearly three years ago. From the very start of the ICC’s inquiry, my own considered view was that the settling of scores – moral, legal and political – from the post-election violence ought to be an internal Kenyan matter. To be sure, political leaders at the highest levels likely orchestrated some or much of violence, and because of extensive corruption in Kenyan politics, the chances of an independent court acting against these leaders was small.
The improbability of internal reform in Kenya is not reason enough to abandon the hope that Kenya can act as other nation-states do and bring to the dock wrong-doers, no matter how mighty. By at long last allowing the UN’s ICC to assume the role of adjudicator, Kenyan politics may gain some clarity, but the country’s civil society – and especially its home-grown reformers – will probably suffer a loss of strength and credibility.
If the facts bear out allegations against Uhuru Kenyatta and William Ruto, two leading politicians and possible presidential candidates at some future time, the best punishment is internal banishment from political activity and jail time – a double-barreled punishment to be imposed by Kenyans, for Kenyans, against Kenyans. The whole rationale of the ICC – that Kenyans cannot police their own affairs because they lack the capacity to do so, or the will to do so or the cleverness to do so – is suspect. What happened after Kenya’s failed election was no genocide on the scale of Rwanda, nor lethal criminality by a state actor on the scale of Charles Taylor in Liberia, and nothing approaching the misdeeds by insurgents and outlaws in Central Africa, Northern Uganda, Darfur or Eastern Congo. Kenya’s post-election violence was terrible but the breakdown of political order cannot be understood in the narrow terms of international law or the capacious terms of psychiatry. What is rarely acknowledged by anyone from the ICC, or the international humanitarian community, is that political violence is an instrument of power every day in Kenya. Police authority rests on the execution of the innocent and the guilty alike on the streets of Kenya’s cities. That violence is a tactic of the governors does not excuse it. But to reform Kenya’s dysfunctional political culture requires not legal rulings but a social and ethical transformation that transcends what any international court can do.
Moreno-Ocampo disagrees. He tells the New York Times: “This is a different kind of case. This isn’t about militias. It’s about politicians and political parties. It’s about investigating leadership.”
I hope the indictments lodged today by the ICC collapse. I hope Kenya’s political leaders, corrupt and selfish as they are, can be forced to make the hard, creative choices necessary to take ownership of the necessary process of giving the directors of the post-election violence their day of reckoning – creating a foundation for a new process of selecting presidents and members of parliament that helps Kenya balance ethnic, class and sub-regional tensions. Without a set of political arrangements designed by and for Kenyans, however, the intervention of the ICC threatens only to escalate the instability in Kenyan politics, weaken the democratic forces on the ground in the country and heighten the possibility that the next round of political violence in the country will draw even more heavily on ethnic and economic-class tensions.
So beware, Luis Moreno-Ocamp, what you wish for.
On Monday, Kenya’s President Mwai Kibaki announced his government would launch its own investigation. To be sure, his order comes very late in the game, and is designed, undoubtedly to create some kind of firewall against the ICC’s charges. But though his motives are impute, Kibaki ought to be given time to follow through with concrete prosecutions against the culpable in his own ranks – and in those of the opposition parties.