NAIROBI, Kenya — Kenya’s shaky democracy is facing a defining struggle as the chief prosecutor of the International Criminal Court begins an investigation into political violence that is expected to lead him straight to Kenya’s wealthy and educated ruling elites.
Argentine prosecutor Luis Moreno-Ocampo arrived here last weekend for a five-day visit carrying with him the hopes of Kenyans desperate to see justice for the deaths of more than 1,100 people in violence that followed the last elections in 2007.
He is not alone in hoping that his investigation and subsequent indictments might end the impunity that has held sway since Kenya's independence more than half a century ago. But his will not be an easy job.
“Let’s be clear,” former anti-corruption chief John Githongo told GlobalPost, “the ICC has met one of the most serious bunches of gangsters on the African continent here in Kenya.”
For two months after the 2007 polls the country was convulsed by violence and riots, pogroms and forced evictions. The security forces cracked down with trigger-happy abandon: More than one-third of those killed were shot by police.
Nobody has yet been convicted in the creaking and corruptible domestic courts: not wielders of machetes, spears and fire, not armed servicemen, not businessmen who funded the gangs and not politicians who incited the violence and gained power because of it.
Since multi-party politics began in Kenya, elections have been ethnically divisive and violent. Hundreds died in 1992 and again in 1997 before 2007 exploded.
“Violence has long been a feature of political life but what happened in 2007 went way beyond anything we’d seen before. If nothing is done we can predict that next time will make 2007 look like chicken feed,” warned Anthony Kuria, coordinator of the Movement for Political
Accountability and a member of a government Commission of Inquiry set up to investigate the violence.
That commission, dubbed the Waki Commission after the judge who headed it, produced an exhaustive 556-page report detailing the violence. It also drew up a confidential list of alleged perpetrators that was handed to the ICC chief prosecutor last year after Kenya’s government
failed to deliver on repeated promises to set up its own local tribunal.
The confidential list, as well as the evidence of the Waki Commission and various human rights groups, forms the basis of the ICC investigation.
“The situation was extremely well-documented so we’re all making fairly educated guesses as to who they might be pursuing,” said Muthoni Wanyeki, executive director of the independent Kenya Human Rights Commission.
“The reason that this investigation is important is that Kenya has a history of knowing exactly who is involved in what, and watching them get off with nothing,” said Wanyeki.
Among 19 politicians on a list of 219 alleged perpetrators published by the state-funded Kenya National Commission on Human Rights (KNCHR) are three cabinet ministers.
Among these are higher education minister William Ruto of the Orange Democratic Movement (ODM) and finance minister Uhuru Kenyatta of the Party of National Unity (PNU). Both are accused of funding and planning ethnic violence for political ends.
Moreno-Ocampo has said he will look for senior politicians on both the ODM and PNU side of Kenya’s dysfunctional coalition government forced together under international pressure to end the post-election violence.
“For a long time we’ve not believed that anything can happen to the top flight political personalities,” said Hassan Omar, vice chairman of KNCHR. “So to say we can investigate these top politicians and we can actually see them in the dock has a very important psychological
impact in terms of Kenyans believing that justice can work.”
Both Ruto and Kenyatta firmly deny the allegations and have taken legal action in Nairobi to have their names removed from the KNCHR list of alleged perpetrators.
“In Kenya some people who are members of powerful political dynasties are regarded as above the law, they don’t ever have to be accountable,” said Mwalimu Mati, a lawyer and director of political watchdog Mars Group Kenya.
The politicians have, time and again, proved themselves to be above Kenyan law but now they face international law. In late March judges at the The Hague-based ICC granted its chief prosecutor permission to begin his investigation.
“The judges have decided there will be justice in Kenya,” Moreno-Ocampo said afterwards. “To contribute to the prevention of crimes at the next election [in 2012] we must proceed promptly. We will.”
He hopes to complete investigations by November before issuing indictments for between four and six suspects, but he will face challenges.
“Ocampo has met his match in Kenya against a political class that has been entrenched for almost 50 years and are masters at hoodwinking the international community,” said Githongo.
Kenya’s politicians are adept at saying one thing and doing another. They are, according to Wanyeki, “masters of motion without movement.”
Kenya’s urbane, wealthy and Western-educated politicians are a different kind of opponent than Moreno-Ocampo’s more usual thugs with guns like Joseph Kony in Uganda, or Mathieu Ngudjolo and Thomas Lubanga in the Democratic Republic of Congo.
Western diplomats — enthusiastic about the ICC investigation — fear that the prosecutor will be greeted cordially in public but behind the scenes will face, as one put it, “the whole gamut of obstruction from procrastination and obfuscation, to buying-off and bumping-off witnesses.”
But Moreno-Ocampo may also find help in unexpected places.
It was New Year’s Day 2008, and local radios broadcast the news that President Mwai Kibaki, an ethnic Kikuyu and leader of the PNU, had been declared the winner of hard-fought elections. Upon hearing the new, a mob of bow- and arrow-wielding Kalenjin men, supporters of Raila Odinga’s ODM, surrounded a church in Kiambaa, close to Eldoret town in the north Rift Valley.
They barricaded the wooden doors and threw mattresses doused with petrol against the walls and onto the roof then set it on fire. Thirty-five Kikuyus died in the blaze, most of them women and children.
Jackson Kibor, a 76-year old Kalenjin elder and former politician who owns a farm close to Kiambaa where rows of white crosses mark the plot on which the church once stood, is listed as an alleged perpetrator in the KNCHR report and was previously named in a Commission of Inquiry into the earlier violence in 1992 and 1997.
“What will happen will happen. So let it be,” Kibor told GlobalPost in an interview. “If there are witnesses who can positively link me to any act of incitement or violence, I'm ready and willing to face The Hague.
“I hear people saying my name is on [his] list. If it is there, I'll be tried and the judge's decision is final,” he said. “I welcome Ocampo to my farm. I will tell him all I know.”
The reason for this strangely placatory view is simple, according to Ken Wafula, executive director of Eldoret’s Centre for Human Rights and Democracy.
“Many Kalenjins here feel they were misused by their own leaders, chiefs feel that they were forced to collect money to finance the post-election violence,” explained Wafula. “Their consciences no longer allow them to keep quiet, they feel they did something wrong
and they want to speak out.”
Additional reporting by Robert Oluoch in Eldoret