Kenya and the ICC: Court of last hope?

Luis Moreno-Ocampo’s arrival on 8 May and five-day visit to Nairobi came and passed quietly. It was documented by soft clicks of media cameras and by sharp but measured musing of social commentators. There was no civil unrest to challenge the tour and not even a visible protest in a capital that just two years ago was ripped open with street-level violence.

Without incident Moreno-Ocampo, prosecutor of the International Criminal Court (ICC), reportedly met with victims, witnesses and suspects, and wooed a watchful press.

Before the prosecutor’s arrival, opposition to the ICC in Kenya played out in an alleged government plot to block the prosecutor’s visit that quickly flopped. During the tour it was through an inquisitive media at a handful of press conferences that questioning the ICC presence was again dragged into discourse – because it hadn’t been there for a while.

The ICC investigation to pursue justice for the victims of the 2007–08 post-election violence – violence that left 1,220 dead, thousands more injured and over 350,000 people forcibly displaced, according to the Office of the Prosecutor – is now accepted as the crucial next step and better than any domestic option, says L. Muthoni Wanyeki, executive director of the Kenya Human Rights Commission.

ICC involvement, reluctantly, is dogma for getting something done.

‘At this point the ICC is the only option,’ Wanyeki says. ‘In our case it’s a court of last resort.’

Current Kenyan solutions to investigate post-election violence in addition to the ICC are the Special Tribunal, born from recommendation by the Waki Commission, and the Truth, Justice and Reconciliation Commission (TJRC).

The start-up of both these institutions has been riddled with funding problems and other political setbacks, including the contested appointment of Bethuel Kiplagat as chair of the TJRC, which resulted in one commissioner stepping down on principle after Kiplagat refused a request by colleagues for his own resignation. Kiplagat is now facing a potential sub-inquiry into his political history – as a high-ranking official under the former president, Daniel Arap Moi – which has essentially rendered the beleaguered commission defunct.

The Special Tribunal too has been unable to reach a foothold after an attempt to establish it with the Constitution of Kenya (Amendment) Bill 2009 by Mutula Kilonzo, the minister of justice and constitutional affairs, was blocked in Parliament.

‘There’s now overwhelming support within Kenya for the ICC – I think that’s based on a lack of alternatives,’ says Lionel Nichols, administrative manager of the Oxford Transitional Justice Research Group (OTJR).

Because of the idling TJRC and the Special Tribunal in parliamentary limbo, Nichols says that ‘for many Kenyans the ICC is their only hope’.

‘WE’RE NOT A FAILED STATE’

The start of atonement-seeking and the first initiative of juridical inquiry into post-election violence – the Waki Commission, headed by Justice Philip Waki – was not characterised by resigned support for ICC participation in Kenya’s problems.

After the Waki Commission put forward its recommendation for an investigative tribunal, support for a solely Kenyan solution was at least alive, if not widespread.

‘What was originally proposed [by the Waki Commission] would have been the best option, but the bill failed and at that point it was clear there was not enough will on the political side,’ Wanyeki says.

Nichols underscores the lack of political will to establish an effective and probing body like the tribunal, as expected suspects are high rankers in the political class in both the (President Mwai) Kibaki and (Prime Minister Raila) Odinga camps.

Not surprisingly then, initial criticism against involving the ICC as an external and international institution was levelled by both civil society and government.

The government’s position was and is still that an in-country process is the better solution, says Alfred Mutua, a government spokesperson.

‘Kenya should be able to take care of its own problems,’ Mutua says. ‘We understand the lack of faith by some because of politicization … but we’re not a failed state.’

When asked why the government wasn’t following through with funding for one home-grown option, the TJRC, Mutua affirms it has been allocated money but ‘that doesn’t mean it’s available on the spot’.

Kenya’s inability to conduct an independent, internal investigation is stunting the growth of its judicial institutions by simply not using and strengthening them, says Stella Ndirangu, a legal officer at the Kenyan Section of the International Commission of Jurists.

Transitional justice is being put on the shelf while the ICC steps in.

And as the ICC steps in, the proceedings are stepping out. The prosecutor will present his case in court in The Hague, the Netherlands. This creates a logistical barrier for victim participation in the trial.

The victims have steadily organised themselves into a determined lobby, Wainaina says, but their participation will be extremely limited by distance, whereas a Nairobi court proceeding would have cemented victims as a physical part of the process.

Critics also took aim at the ICC for making Kenya the fifth African investigation in the court’s short history. The unflattering continental focus won the ICC its share of criticism, and so too did Moreno-Ocampo’s own credibility as prosecutor, shaken by his record in office.

OPPOSITION DRIES UP

Attempts to stave off Moreno-Ocampo and his international mandate with an effective domestic response failed. The step that sealed ICC involvement was when the conflict’s technical arbiter, former UN Secretary General Kofi Annan, gave the symbolic nod by handing over a list of suspects drafted by the Waki Commission to Moreno-Ocampo.

The move came after an already extended deadline set by the Waki Commission to establish a tribunal had expired, and by that time the opposed had become the exasperated supporters.

‘The government failed to set up the Tribunal, so [the ICC go-ahead] was an indictment of the Kenyan leadership,’ says Ndung’u Wainaina, executive director of the International Center for Policy and Conflict (ICPC).

Wainaina is a reluctant supporter.

‘Kenya failed its own national proceedings. This is an option this country drove itself into.’

The failed tribunal and current state of the TJRC is proof that accountability for the violence is not a government priority, Wainaina says.

‘The Kenyan government at any one time was never genuine about prosecuting the masterminds,’ he says.

The lack of commitment and serious intention to prosecute by the political elite secured support for the ICC. At this point, to dump international involvement and leave justice to a government with a deplorable reputation for accountability would be an endorsement of impunity, Wainaina says.

But the ICC alone cannot ensure blanket accountability for the people who incited mass killing and violence; Moreno-Ocampo has resolved to pursue the most responsible and has narrowed his mandate to prosecute six accused. Wainaina warns that without a concurrent domestic process to the ICC investigation, which at most will hold six people criminally accountable, there is a risk of an ‘impunity gap’.

THE LOCAL AGREEMENT

Kenya’s illegitimate criminal justice system has been highlighted by the ICC entrance.

‘It’s a very serious indictment of Kenya’s criminal system,’ Wainaina says, including ordinary criminal courts and the High Court. ‘There has to be a tremendous overhaul.’

The best complement to the ICC investigation to ensure accountability and victim participation, and to revamp the domestic criminal process, is to establish the Special Tribunal, Ndirangu says. Alone, the ICC cannot battle impunity.

The TJRC is not an alternative to domestic prosecutions either, as the cabinet suggested in a 30 July 2009 ruling, Nichols says.

‘The victims are demanding there be a justice component at home, and not just truth-seeking,’ Ndirangu says.

Nichols echoes the need for the Special Tribunal but warns – as Kenyans have already witnessed – that its establishment will continue to be slowed by domestic politics.

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* Dana Wagner is a recent journalism and political science graduate from Carleton University.
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