The International Criminal Court: A Time of Reckoning for Kenya and Africa

For a continent where numerous hideous crimes have for long gone unpunished, the establishment of the International Criminal Court (ICC) in 2002 was a major turning point to ending impunity in Africa. Many African states supported the Rome Statute with high expectations that the perpetrators of atrocities imparted on Africans would never again go unpunished. Then secretary general of the United Nations, Kofi Annan, praised the establishment of the court as an important step toward ending impunity.

Today, however, support of the ICC among Africans has waned considerably. An increasing segment of Africans no longer consider ICC a credible institution to adjudicate in cases of crimes against humanity and its activities are viewed with suspicion if not outright disdain. President Paul Kagame of Rwanda has referred to the ICC as an imperialist institution that was established to solely deal with African countries. The African Union President Jean Ping has criticized the ICC for purely judging Africans.

The scathing criticisms against the ICC are unfortunate. Recent episodes of civil conflict in the Ivory Coast, Liberia and Sierra Leone have involved wide-scale atrocities that fall under the ICC’s mandate. Atrocities of untold magnitude are still ongoing in Sudan and the Democratic Republic of Congo and the perpetrators are unlikely to be held responsible without international justice. But with limited capacity and a lack of political will to punish the perpetrators in their home countries, the ICC could play a pivotal role as an essential complement to local institutions. This is how the recent activities of the ICC in Kenya should be viewed.

On December 15, the ICC’s prosecutor, Louis Moremo-Ocampo, announced the names of six Kenyans who he intends to charge with crimes against humanity in connection to the 2007 post-election violence in Kenya. They include notable personalities, such as the Deputy Prime Minister and Minister of Finance Uhuru Kenyatta, the Minister for Industrialization Henry Kosgey, former Minister of Higher Education William Ruto, the former Police Commissioner Major General Hussein Ali, the Head of the Civil Service and Secretary to the Cabinet Francis Muthaura and journalist Joshua Sang. The six will be charged for crimes ranging from murder, rape and deportation. The main allegation is that they participated in inciting violence or failing to prevent it.

While it is too early to tell, the indictments are likely to have major implications on the Kenya’s politics and ethnic relations. All the more significant is that some of the indicted command broad support in their communities and were expected to be leading candidates for the 2012 presidential elections. With the announcement, the political fortunes of these individuals may have all but furnished.

The post-election violence in Kenya claimed over 1,000 lives, left scores of injured people and over 600,000 displaced from their homes and farms. It was the most severe conflict that Kenya has experienced since independence. There were other relatively minor conflicts around the 1992 and 1997 general elections that were largely politically motivated but these perpetrators were never held accountable. The action by the ICC is therefore seen as the only hope to ending impunity. Failure to deal with those who have in the past incited and engaged in violence against other ethnic groups could be disastrous as the country prepares to hold general elections in 2012 under a new constitution.

But for the ICC process to advance peace and unity in Kenya, it must be fair or else it is likely to increase polarization among the ethnic groups in the country. Already, large segments of Kenyans consider the process to be political rather than judicial. There is a feeling that selection of these six culprits has been largely arbitrary and others who may have had a more prominent role in the violence have not been touched. There is some credibility to these claims.

Two weeks before the 2007 Kenyan general election, a team from Oxford University and I conducted a nationally representative survey of likely voters. The focus was on violence and specifically whether local political representatives were advocating for violence against members of other ethnic groups. Twenty-nine percent of respondents indicated that their local representatives were either somewhat, much or extremely supportive of violence. Similar results were obtained in a post-election survey that we conducted in August 2008. From our surveys results, it is clear that there are many more perpetrators of violence out there, which creates a perception that Ocampo is not after the worst offenders but instead looking for some quick wins. Therefore, for credibility, the prosecutor should seek to demonstrate that those indicted by the ICC were not just marginal players but had a major role in perpetuating violence. This is necessary to prevent claims that the ICC process is being used to remove certain individuals from contention in the 2012 presidential elections. Likewise, the ICC should expand its focus to other regions outside of Africa so that it sheds the growing perception that the court was established primarily to deal with Africans.

The long-run success in fighting impunity in Africa must be the responsibility of Africans themselves through their local institutions. Besides cases of genocide, African governments must seek to establish credible judicial processes to deal with crimes such as murder, rape and violence within their own countries or even regionally. In countries with weak judiciaries, there should be support from the international community to establish local tribunals. The Kenyan government failed to establish a local tribunal in connection to the post-election violence promoting the prosecutor to request ICC judges to grant him authority to open formal investigations in line with the principle of complementarity—the idea that ICC should only act where states are not able or unwilling to prosecute crimes under the ICC’s jurisdiction. This was a major blunder on the part of Kenya’s government and Parliament and it is likely to be very costly with regard to the country’s ethnic relations. To have the ICC deal with crimes that could have been adequately dealt with locally is clear evidence of state failure, a label that Africans must try to shed.