Apr 8th 2010 | | From The Economist print edition
So far nobody has been charged with killing any of the 1,100-plus Kenyans who died in the violence after a disputed election at the end of 2007. The Kenyans were meant to set up their own tribunals to punish the worst offenders. But since they failed to do so, the International Criminal Court (ICC) at The Hague has at last agreed to proceed with cases against unnamed powerful Kenyans who, for their own political ends, are suspected of inciting the violence and paying its perpetrators.
The court’s decision has been eagerly awaited for two years. It has been strongly endorsed by Kofi Annan, a former secretary-general of the UN, who helped bring peace after the election by persuading the president, Mwai Kibaki, and the opposition leader, Raila Odinga, to form a unity government. Mr Kibaki, a Kikuyu, stayed on as president, with his pals keeping a grip on finance and security. Mr Odinga, a Luo who claims kinship with Barack Obama, became prime minister, with people in his wider and looser alliance getting a raft of lesser ministries. The bloated coalition’s first task was to set up a special tribunal to charge those responsible for the election violence. But nothing happened. Cases against several thousand people accused of such crimes as arson, rioting, looting and shooting were opened. Thanks to police bungling few have ever come to court.
All the more important, then, to hold the higher-ups to account. The ICC is keen. Its chief prosecutor, Luis Moreno-Ocampo, an Argentine, says the Kenyan case is among the most clear-cut in his docket. Plentiful evidence was gathered at the time by human-rights workers, journalists, security men and diplomats. There is no shortage of witnesses, though the ICC wants a witness-protection programme put in place. Most Kenyans seem to trust the court. Messrs Kibaki and Odinga sound co-operative. Mr Odinga says he will send anybody the ICC asks for to The Hague. Mr Kibaki says he agrees. The justice minister insists his ministry is ready to help. Mr Moreno-Campo says his team will start work in Kenya in May. Verdicts, he reckons, could be handed down in 2012.
But there are snags galore. For a start, the ICC’s timetable means the trials would take place amid Kenya’s next elections, when the risk of violence is highest. A trial just then might well be portrayed as a show-trial. Then there is the tricky question of whom the ICC would pick to send to The Hague. Mr Moreno-Ocampo has hinted there will be only a handful of prosecutions, perhaps a couple from each side of the ruling coalition. A senior politician from the Kalenjin group might, say, be charged with responsibility for killing Kikuyu women and children in the Rift Valley, while a senior Kikuyu could be accused of paying off Kikuyu gangs to kill opposition backers in Nairobi. Most Kenyans seem to want bigwigs put in the dock, in the hope of ending impunity for top people that has so damaged the country.
It will be hard to nail them down. The rich have expensive lawyers. Mr Kibaki may find excuses for refusing to give up one of his allies. Mr Moreno-Ocampo, for his part, must display the balancing skills of a trapeze artist. If he is thought to favour one side or another, violence could erupt. If the ICC seems to wield too heavy a stick, the accused may stir up anti-colonial feeling—still a potent force—in their defence. Above all, the ICC must navigate the murky waters of Kenyan politics, where alliances can change with unexpected speed. For example, the minister of agriculture, William Ruto, a Kalenjin, has reached out to a once-implacable rival, Uhuru Kenyatta, the minister of finance, a Kikuyu who is a son of Kenya’s founding president and who, by some estimates, is Mr Kibaki’s chosen successor.