By Eric Stover and Victor Peskin, Los Angeles Times
Two recent events marked a potential turning point in Kenya’s troubled political history. The first was the unveiling of a proposed new constitution, which would limit the power of the president and provide for an independent judiciary. The second was a visit to Nairobi by Luis Moreno-Ocampo, the International Criminal Court’s chief prosecutor, who announced he would seek indictments and convictions of up to six masterminds of Kenya’s postelection violence that left more than 1,100 people dead and displaced hundreds of thousands in 2008.
Many Kenyans hope that ICC indictments and the proposed constitution, which they will vote on in August, will forestall ethnic violence in the lead up to the 2012 presidential election. Indeed, several factors suggest this optimism may be well-founded.
To begin with, a new constitution “will send a very strong signal that things are changing,” a foreign ambassador told us. The charter, though flawed, aims to address long-standing grievances such as land grabbing and an unrestrained security apparatus implicated in thousands of extrajudicial killings. But the real test will be in implementation, which may take years.
As for the ICC, one recent poll found that the majority of Kenyans back international prosecutions. Moreno-Ocampo is fortunate that Kenyan human rights organizations were on the ground documenting the crimes not long after they happened. He still faces the formidable challenge of securing “insider witnesses” who can link atrocities to high-level politicians. He must also prove the offenses rise to the level of crimes against humanity.
And he will need leverage to persuade Kenyan leaders to send suspects to The Hague-based court. Kenyans’ support for the proceedings will help, but bringing the indicted into custody will also depend on the international community’s applying pressure on Kenya. The government’s dependence on foreign aid renders it vulnerable to arm-twisting, particularly by Britain and the United States. (Although the U.S. is not a party to the ICC treaty, it backs the court’s pursuit of accountability in Kenya.)
Significant hurdles will remain. Kenyan leaders are legendary for obstructing justice. As one Western diplomat told us, those indicted by the ICC “will use every dirty trick in the book” to prevent their transfer to The Hague. Already, civil society groups that operate their own witness protection programs have reported increased witness intimidation. Some Kenyan government officials tried at the last minute to block Moreno-Ocampo’s visit to Nairobi.
To avoid more violence, Moreno-Ocampo must act evenhandedly, without singling out one political party or ethnic group for blame for the widespread violence in 2008. Kenyan rights activists report that some rival groups, particularly in the volatile Rift Valley, are preparing for renewed bloodshed. “The likelihood of another explosion is significant unless things go well,” said a foreign ambassador. The prosecutor is expected, at the very least, to indict officials from both of the two main political parties, whose members are drawn from Kenya’s two largest ethnic groups. Some activists and diplomats hope that Moreno-Ocampo will go further by indicting high-level police and security officials who allegedly ordered postelection killings.
Ideally, the ICC will be the harbinger of a new culture of accountability. Many in Kenya — and Moreno-Ocampo himself — hope indictments will rekindle interest in creating a domestic tribunal to adjudicate the violence, which the Kenyan parliament failed to establish last year. Such a tribunal could bring to justice scores of mid- and low-level suspects.
With so much at stake in Kenya, it is important that Vice President Joe Biden, who is scheduled to visit the country Monday, joins others in the international community to support the ICC in several ways:
First, insist that Kenyan authorities hand over those who are indicted and punish those who intimidate witnesses. If the government fails to cooperate, targeted sanctions such as travel bans against key Kenyan politicians should be levied.
Second, urge Kenya’s parliament to establish a domestic tribunal, in addition to the ICC proceedings. Funds should be pledged to support witness protection, forensics and services for victims, especially survivors of sexual violence. A fair and effective tribunal will open the way to an independent judiciary, which is a cornerstone of the proposed constitution.
Finally, warn Kenya’s leaders that the international community will not tolerate a repeat of political violence. Kenya has long been a commercial center, a hub for aid distribution and a pillar of stability in the region. But its future looks precarious as many of those responsible for the past violence remain in power. If the world is not vigilant, renewed instability could send Kenya into chaos, and take its neighbors down with it.
Victor Peskin is an assistant professor at the school of politics and global studies at Arizona State University. Eric Stover is an Open Society fellow and faculty director of the Human Rights Center at UC Berkeley School of Law.