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Kenya Sends Mixed Signals as ICC Team Arrives

  • Michael Onyiego

Investigators from the International Criminal Court, or ICC, have arrived in Kenya to investigate suspected crimes against humanity committed during the 2007 post-election crisis. The Kenyan government has promised full cooperation. But recent comments by the Justice Minister have put the country's commitment to justice in doubt.

A team representing Prosecutor Luis Moreno-Ocampo of the International Criminal Court is in Kenya gathering evidence against the alleged masterminds of the chaos that swept across Kenya in late 2007 and early 2008.

The Kenyan government has promised full cooperation. But recent statements made by Justice Minister Mutula Kilonzo have many analysts concerned about the country's position.

Speaking to Kenya's Daily Nation newspaper, Kilonzo said the judiciary under Kenya's new constitution would allow suspects to be tried locally, adding that he preferred local trials over proceedings by the International Criminal Court.

The minister's remarks have provoked a public outcry, with many Kenyans accusing him of trying to disrupt probes into the violence. A statement issued by Moreno-Ocampo reaffirmed the court's commitment to the investigation.

On Monday, Kilonzo attempted to clarify his remarks, saying that those not tried in The Hague would be tried locally.

"You must understand I supported the ICC because cabinet refused to set up a local tribunal. My position has not changed. The prosecutor of the ICC cannot investigate murder, rape, arson, displacement, destruction of property and so on, so long as they are pegged to Kenya's penal code," said Kilonzo "He can only do so under the Rome Statue. We do not know whether the ICC will admit a Kenyan case."

An estimated 1,300 people were killed as a result of the ethnic violence that erupted after election rivals President Mwai Kibaki and Prime Minister Raila Odinga accused one another of fraud in the December 2007 presidential vote. The accusations set off two months of violence and forced some 300,000 people to flee their homes. More than two years later, many of those who were displaced during the aftermath of the elections have yet to be resettled.

International Criminal Court (ICC) prosecutor Luis Moreno-Ocampo (File)

International Criminal Court (ICC) prosecutor Luis Moreno-Ocampo (File)

Moreno-Ocampo expects to charge as many as six people in two separate cases when he presents his case to The Hague at the end of the year. Although the prosecutor has not revealed his list of suspects, many people in Kenya expect prominent politicians and business leaders to be named in the case. The president and prime minister have promised to fully support the ICC. But there are fears that the suspects might be shielded from prosecution by powerful allies.

In a May visit to Kenya, Moreno-Ocampo dismissed such concerns, promising justice for the victims of the violence.

"I believe that charges by the ICC will end in court. I have no doubt. I saw in my country President Videla who had a lot of power when he took office and one day we prosecuted him in court. I saw General Pinochet who was arrested when he was in London," said Ocampo. "I saw President Milosevic who was arrested in his own country. I saw Charles Taylor arrested and in The Hague. We are living in a new world in which power is not allowing you to commit massive crimes."

Moreno-Ocampo's pursuit of those responsible for the election chaos has earned him folk-hero status in Kenya. A recent public opinion survey by shows that more than half of the country prefers trials in The Hague to local tribunals, despite reforms being implemented under Kenya's new constitution.

Moreno-Ocampo's face can also be seen on buses in Nairobi, often alongside former U.N. Secretary General Kofi Annan, who helped end the violence in 2008.

But not everyone is happy with the ICC's involvement in Kenya.

A businessman from Mombasa, Joseph Gathungu, has filed a suit to stop the court's operations in Kenya. In a case brought to the Mombasa High Court, Gathungu argues that the investigation into the violence was illegal under Kenya's new constitution and that it violated the sovereignty of the east African nation.

Kenya's new constitution went into effect on August 27. Although some of the documents provisions have been implemented immediately, the laws will not be fully enforced until after national elections slated for 2012. In 2008, Kenya's parliament passed the International Crimes Act, which incorporated the Rome Statute and the ICC into Kenyan law. The prosecutor's team is expected to remain in Kenya until Wednesday. Moreno-Ocampo has promised to issue his first arrest warrants by December.