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Kenya Divided on Trying of Violence Perpetrators

The ethnic violence following the December, 2007 elections in Kenya resulted in the deaths of nearly 1,500 people. Amid international pressure to hold those guilty of the violence accountable, Kenyan leaders are struggling to meet international demands while balancing domestic political realities.

With prosecutions in the International Criminal Court looming, if Kenya does not act, the Kenyan coalition government is having trouble finding the political will to meet the international community's demand to try the perpetrators of the post-election violence.

Kenyan leaders received an extension this week from the ICC to set up a local tribunal after Parliament rejected, for the second time, the administration's proposal creating the court.

University of Nairobi Professor Kamodho Waiganjo says the insistence among Kenya's top government leaders to try the suspects locally is driven by a fear that an ICC investigation might end up implicating top government officials, potentially reaching as high up as President Mwai Kibaki and Prime Minister Raila Odinga.

"The ICC usually targets people at the chief executive level, so obviously Kibaki and Raila [Odinga] would prefer a local tribunal for that reason," Waiganjo said.

The contested election results between Mr. Kibaki and Mr. Odinga set off the violence that threw the nation into weeks of chaos.

In the agreement mediated by Kofi Annan last year, the new coalition government agreed to set up a local tribunal as part of the national reconciliation process. Annan had given Kenya until August this year to form a tribunal, saying he would hand the list of suspects over to the ICC if Kenya failed in meeting its obligation.

The August deadline was the result of an earlier two-month extension granted by Annan.

A high-level Kenyan delegation held urgent meetings last week with Annan and ICC chief prosecutor Luis Moreno-Ocampo to secure additional time to form the tribunal.

The deal cut with Ocampo gives Kenya one year's time to start trying the suspected human-rights violators. But Kenya officials are to give the ICC a detailed update on the investigations of the suspects in September.

The debate on the bill in parliament highlights some of the political obstacles blocking the formation of the tribunal. Some MPs objected to a clause that held superiors accountable for actions taken by their juniors. Others pushed for the case to be given immediately to The Hague, citing a lack of faith the political will existed to go through with the prosecutions.

Following the bill's defeat in Parliament, Kenya government leaders are reportedly considering bypassing the legislative body completely and using executive powers to set up a special division of the nation's High Court to try the suspects.

Those who advocate for immediate referral to The Hague argue a local tribunal can not be trusted to bring justice to the highest levels of Kenyan leadership.

The general secretary of the National Council of Churches of Kenya, Peter Karanja, says the government cannot be trusted to carry out the prosecutions.

"The fact that one and a half years after the post-election violence we should be asking about the mechanisms that would be used to try the suspects is actually an indication the government is either unwilling or unable to try the post-election violence suspects," Karanja said. "Kenya does not have a track record of cracking down on impunity."

Some critics of the ICC extension contend suspected politicians will use the delay to continue pushing the tribunal deadline closer to 2012, the date of Kenya's next scheduled election. Professor Waiganjo says that the nearer that date gets, the more difficult it will be for Kenya to conduct a fair tribunal locally.

"I think that the reality is that the closer we get to the elections of 2012, it is going to be impossible to manage a process like that local," Waiganjo said. "So the closer we get to 2012, I think we need to internationalize the tribunal."

After the December 2007 election, violence flared up along ethnic lines after Mr. Odinga accused Mr. Kibaki of rigging the vote count. Kenyan politics is largely dictated by shifting coalitions of ethnic groups.

Experts fear that unless necessary reforms are taken - such as the ratification of a new constitution - the country may not be prepared for a peaceful 2012 election.