ICC prosecutor says Kenya must press charges

NAIROBI, Kenya — The long years of impunity enjoyed by Kenya’s power brokers may finally be drawing to a close.

During a visit to this East African country last month, Luis Moreno-Ocampo, chief prosecutor at the International Criminal Court (ICC), said he would seek to bring to trial some of those responsible for inciting and organizing the violence that followed disputed elections here in December 2007.

Calling the murders of about 1,500 people in the weeks after the poll “crimes against humanity,” Ocampo said that he wanted to begin an investigation that could result in senior Kenyan politicians, cabinet ministers and businessmen facing trial at The Hague-based court.

The ICC prosecutor laid out his plans at a press conference held jointly with the two leaders of Kenya’s fractious coalition government in Nairobi.

“I explained to [the president and prime minister] that I consider the crimes committed in Kenya were crimes against humanity and I consider that therefore the gravity is there, so therefore I should proceed,” he said.

Ocampo said he will ask the ICC pre-trial judges to give him a mandate to begin an investigation in December, a process that is likely to lead to the issuing of international arrest warrants.

If the ICC judges agree it will be the first time the prosecutor has unilaterally opened an investigation. Investigations underway — including in Sudan’s Darfur region, northern Uganda, Democratic Republic of Congo and the Central African Republic — have either been referred to the world court by the states themselves or by the United Nations Security Council.

Kenya signed up to the Rome Statutes that laid the groundwork for the establishment of the ICC in 2002 and so is obliged to assist in its investigations.

“We are ready and willing to work in cooperation with Mr Ocampo to ensure that those who bear responsibility for the crimes that were committed are brought to justice,” Prime Minister Raila Odinga insisted. “We are ready to work with his court so that we don’t see a repeat of what we saw last year.”

But there are question marks over the level of cooperation that will actually be offered. There has been no progress in establishing an oft-promised and much-delayed special tribunal to judge the masterminds the violence and so far not a single perpetrator has been brought to book.

Odinga and his coalition partner President Mwai Kibaki chose not to refer the case to the ICC when Ocampo visited Kenya — instead forcing Ocampo to open his own investigation — and Kenyan commentators see this as an attempt by the two leaders to avoid blame when their political allies find themselves wanted by the court.

This is inevitable because the violence was sparked when Kibaki claimed victory in the national election and Odinga cried foul.

A government commission of inquiry led by Justice Philip Waki last year came up with 10 names of those most responsible for the post-election violence, and although the list has remained secret it is widely thought to include senior politicians on both sides of the
political divide.

Ocampo has the so-called "Waki envelope" after it was given to him in July by former U.N. Secretary General Kofi Annan who played a key role in mediating an end to weeks of deadly chaos in early 2008 and brokering the power-sharing deal between Kibaki and Odinga.

The pressure on Kenya’s political elites has been growing ever since, but so far it has resulted in little progress toward either justice or political reform, both of which are needed if a repeat of the post-election crisis is to be avoided in 2012.

Most vocal in its calls for reform has been the U.S.

In September, U.S. Ambassador Michael Ranneberger talked of President Barack Obama’s wish to see an end to “45-years of impunity in Kenya,” as he announced that 15 cabinet ministers, MPs and senior bureaucrats would be slapped with travel bans if they continued to block reforms.

The only other African countries whose leaders have been censured in this way are Sudan and Zimbabwe.

This week Kenya’s attorney general became the first to be banned from the U.S. Amos Wako, the country’s top lawyer, has been widely criticized by human rights groups as well as a special U.N. investigator for his failure to prosecute any significant corruption cases during his 15-year tenure.

Wako responded to the travel ban with a mix of indignation, petulance and threat. He defended his record in office, said didn’t want to visit America anyway and finally threatened to sue the U.S. for defamation.