Kenya: Impact of the ICC Proceedings

  1. Kenya: Impact of the ICC Proceedings
    Africa Briefing N°849 Jan 2012
    OVERVIEW Although the mayhem following the disputed December 2007 elections seemed an exception, violence has been a com­mon feature of Kenya’s politics since the introdu…ction of a multiparty system in 1991. Yet, the number of people killed and displaced following that disputed vote was unprecedented. To provide justice to the victims, combat pervasive political impunity and deter future violence, the International Criminal Court (ICC) brought two cases against six suspects who allegedly bore the greatest responsibility for the post-election violence. These cases have enormous political consequences for both the 2012 elections and the country’s stability. During the course of the year, rulings and procedures will inevitably either lower or increase com­munal tensions. 

    If the ICC process is to contribute to the deterrence of future political violence in Kenya, the court and its friends must explain its work and limitations better to the public. Furthermore, Kenya’s government must complement that ICC process with a national process aimed at countering impunity and punishing ethnic hate speech and violence.

    In the past, elites have orchestrated violence to stop political rallies, prevent opponent’s supporters from voting, and – as in the 2007-2008 events – intimidate rivals. In the aftermath of the crisis, a Commission of Inquiry into Post-Election Violence (CIPEV), chaired by Kenya Court of Appeal Judge Philip Waki, was established to investigate the facts and circumstances of the election violence. Among its major recommendations was creation of a Ken­yan special tribunal to try the accused organisers. Mindful of the history of political impunity, it recommended that if the government failed to establish the tribunal, the Panel of Eminent African Personalities that under Kofi Annan’s chairmanship mediated the political crisis should hand over a sealed envelope containing the names of those who allegedly bore the greatest responsibility for the violence to the ICC for investigation and prosecution. President Mwai Kibaki and Prime Minister Raila Odinga signed an agree­ment for implementation of CIPEV’s recommendations on 16 December 2008, and parliament adopted its report on 27 January 2009. A bill to establish a special tribunal was introduced twice in parliament but on both occasions failed to pass. Not even last-minute lobbying by the president and prime minister convinced parliamentarians. Annan consequently transmitted the sealed envelope and the evidence gathered by Waki to the ICC chief prosecutor, Luis Moreno-Ocampo, on 9 July 2009. Four months later, on 5 November 2009, the pro­secutor announced he intended to request authorisation to proceed with an investigation to determine who bore greatest responsibility for crimes committed during the post-election violence. When Moreno-Ocampo announced, on 15 December 2010, the names of the six suspects, many of the legislators who had opposed the tribunal bill accused the court of selective justice. It appears many had voted against a Kenyan tribunal on the assumption the process in The Hague would be longer and more drawn out, enabling the suspects with presidential ambitions to participate in the 2012 election. To many Kenyans, however, the ICC’s involvement sends a signal that entrenched impunity for wealthy and powerful politicians will not be permitted to endure. If national courts are unable or unwilling to prosecute perpetrators of gross electoral violence, the international court can. For a political class used to impunity, this is a likely game changer for how politics are conducted in the country.

    The 2012 presidential and legislative elections will play out against the backdrop of a significant ICC role that Kenyan politicians will be unable to influence. Other factors also will come into play. The incumbent president, Mwai Kibaki, will not run. The constitution promulgated on 27 August 2010 has created powerful new positions, including that of an independent chief justice, and raised the bar for presidential aspirants. A successful candidate must obtain an absolute majority of votes as well as more than a quarter of the votes in at least 24 of the 47 counties. Political jockeying and alliance formation have already begun in earnest, in part as a response to the ICC proceedings.

    The two most prominent suspects, Uhuru Kenyatta (the deputy prime minister, finance minister and son of Kenya’s first president) and William Ruto (the former agriculture and higher education minister), as well as the vice president and many other like-minded politicians, are exploring the possibility of uniting behind one candidate. The ICC is expected to announce in late January 2012 wheth­er it has confirmed charges against each of the six suspects and will proceed to trials. The court’s rulings will introduce an additional – possibly crucial – factor into an already pivotal election.

    If the court confirms charges for both cases on the same day, this could be a crucial step to help defuse a rise in ethnic tensions. There are real fears that if charges are dropped for suspects of one ethnicity and confirmed for those of another, ethnic tensions could increase sharply, regardless of the legal merits. The ICC’s decisions will con­tinue to play a pivotal role in Kenya’s political process, especially in the crucial 2012 election. The court appears cognisant that these will not be viewed by many Kenyans simply as legal decisions and that the timing and framing of proceedings and rulings will inevitably have an impact in heightening or tamping down tensions. Accordingly:

    The International Criminal Court should recognise that public statements warning suspects and other politicians not to politicise the judicial proceedings, such as Judge Ekaterina Trendafilova’s on 5 October 2011 noting that continued hate speech would be considered in the pre-trial deliberations, can dampen and deter aggressive ethnic and political rhetoric.
    While the ICC is still popular, the Kenyan public’s approval of its role has been declining, due to deft media engagement by the suspects. In order to counter misconceptions of the court’s decisions, the court and its supporters, including civil society and other friends, should intensify public information and outreach efforts to explain its mandate, workings and process.
    The Kenyan government must recognise that the fight against political violence and impunity is its responsibility. It needs to close the impunity gap by complementing the ICC process with a parallel national process. It should begin by directing the attorney general to investigate other individuals suspected of involvement in the violence that followed the 2007 elections with a view to carrying out prosecutions in the domestic courts.
    The government should also support Willy Mutunga, the new chief justice, in his efforts to reform the judiciary and restore public faith in Kenya’s system.
    Nairobi/Brussels, 9 January 2012

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One thought on “Kenya: Impact of the ICC Proceedings

  1. ICG oo warbixin ka soo saartay howgalka Ciidamada Kenya ee dalka Somalia.

    War bixin ay soo saartay hay’adda qaabilsan xasaradaha caalamka ee marka magaceeda la so gaabiyo loo yaqaano ICG ayaa waxa ay ku sheegtay gabood fallada iyo qaladaadka dowladda Kenya ay ka gashay dalka ciidamaeedu ay ku jiraan ee Somalia .

    Warbixinta ayaa lagu sheegay in go’aankii bishii October ee sanadkii tagay Kenya ay qaadatay uu ahaa qatartii ugu horaysay oo Kenya ay u bareerto tan iyo markii dalkaasi uu qaatay xurnimada.

    Waxana sidoo kale ay warbixinta lagu sheegay in inkastoo aan indhaha laga dadin Karin qatarta Kenya kaga imaanaysa xarakada al shabab oo dalka Kenya ka geesatay qaraxyo iyo afduub .ay Kenya ku qaldanayd gelitaankii dalka Somalia ay ku gashay.

    Howgalkii Kenya ay Somalia ku gashay ayaa waxa ay ugu magac dartay Linda Nchi oo micna ahaan uu yahay badbaadinta dalka ayaa waxaa jira dowlado ku taageeray howgalkaas oo ay sheegay in Kenya ay ku saxsantahay in goob waliba ay kula dirirto ciddii ay u arakto inay wax u dhimayso dalka Kenya laakin warbixinta ayaa waxa ay leedahay inta badan dadka soomaalida waxa ay u arkaan soo gelitaanta Kenya ee Somalia mid dowladda Kenya ay ku doonayso dano gaar ah oo ay ku damacsantahay in dhul Somalia ku yaala ay ku qabsato.

    Warbixinta ayaa sidoo kale waxaa lagu yiri in dalka Kenya marka al fiiriyo dhaqaalihiisa hoos u dhac wayn uu ku yimid iyadoo taasi loo aaneeyay inay waysay dalxiisayaal kaga imaanayay dalalka yurub kuwaas oo cabsi darteed ka waabsaday in Kenya ay soo aadaan.

    Hay’adda qaabilsan xasarada caalmaka ee ICG loo soo gaabiyo ayaa warbixinteeda waxa ay sidoo kale ay ku sheegtay in dowladda Kenya ilaa iyo hadda aysan kala cadayn xilliga ay soo afjarayso howlagalka ay Somalia ka wado oo sida warbixintu ay sheegayso ay u muuqanayso mid dowladda Kenya ay ku sii nagaanayso dalka Somalia maadaama Kenya ay ku guulaysatay kamid noqosshada howlgalka midowga Africa uu ugu magacdaray AMISOM oo Somalia laga wado.

    Ugu dambayntii Hay’addan qaabilsan xasarada caalmaka ayaa warbixinteedu waxa dowladda Kenya ay ugu soo jeedisay talooyin ku aadan howgalka ay Somalia ku joogto: Waxana talooyinkan ay u dhigaanyeen sida tan: Ku socoto dowladda Kenya

    1 in istiraatiijiyad dhameystiran u sameyso howlgalkeeda Soomaaliya iyo ka bixitaanka ciidamadeeda sidoo kale in howlgallada ay kawaddo Soomaaliya ay noqdaan kuwo ay la kaashato ciidamada AMISOM si looga guulaysto xarakadaAl shabab.
    2-in Kenya cunaqabatayn ay saarto xarakada al shabab islamarkaana ay ku dadaasho qabshashada dekedda kismaayo oo ah meesha ugu ballaaran oo xarakada al shabab ay ka hesho dhaqaalada ay ku sii dagaalamayso.taas oo hadii Kenya ay ku dhaqaaqdo ku keeni karta al shabab in hoos u dhac dhanka dhaqaalaha uu ku yimaado oo ay waayaan qarashaad ay ku soo gataan hub ay ku dagaalamaan.

    3-In ay xiriir wanaagsan oo wada shaqeyn ah la yeelato ciidamada AMISOM iyo kuwa dowlada KMG Soomaaliya si Kenya ay ugu fududaato wiiqitaanka awoodda xarakada Al shabab 4 inay bilowdd dadaallo ay xal ugu raadinayso dalka Somalia iyadoo iskaashi la samaynays QM , maraykanka ,ingiriiska iyo dowladaha kale ee daneenaya xal u helidda dalka Somalia

    :5- In Kenya sidoo kale horumarsio qorshayaasha gobolka iyo kuwa calaamiga ah iyo sidoo kale inay si daacad ah ula shaqeyso beelaha gudaha iyo kooxaha jira iyo weliba in maamul ay u sameyso Kismaayo.

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