ANALYSIS: ICC's Kenya cases raise questions over future

By Michael Logan Dec 15, 2010, 21:00 GMT

The Hague/Nairobi - The International Criminal Court (ICC) on Wednesday stabbed at the heart of Kenya's establishment by naming key politicians, such as the son of the nation's first president, as suspects in its post-election violence probe.

It is a move that many hope will prevent a repeat of the deadly violence that followed disputed presidential polls in December 2007, and could rewrite the East African nation's political landscape.

Kenya was one of Africa's most stable countries until the violent outbreak, which came when Prime Minister Raila Odinga of the Orange Democratic Movement (ODM) - then just a presidential hopeful - accused President Mwai Kibaki of stealing the election.

More than 1,100 people died and hundreds of thousands were displaced as the police suppressed demonstrations and rival tribes set off on sprees of murder, rape and destruction that only ended when Odinga and Kibaki cut a power-sharing deal.

The highest-profile suspect that ICC Chief Prosecutor Luis Moreno- Ocampo named on Wednesday is Uhuru Kenyatta - deputy prime minister, finance minister and son of Kenya's founding father, Jomo Kenyatta.

Kenyatta, considered the political leader of Kenya's largest tribe, the Kikuyu, is accused of mobilizing the Mungiki - a Kikuyu criminal gang - to carry out revenge attacks on the Kalenjin and Luo tribes, which backed Odinga.

On the other side of the tribal divide, William Ruto - a former Odinga ally and the man who commands the loyalty of millions of fellow Kalenjins - is accused of organizing attacks on largely Kikuyu supporters of Kibaki's Party of National Unity.

The issues of tribe and corruption had much to do with the bloodshed. Analysts say a long history of competing tribes aiming for the presidency to gobble up resources for themselves and their kinsmen, with no fear of reprisal, opened the door for the mayhem.

Indeed, much of the violence against the Kikuyu in the volatile Rift Valley was aimed at removing the tribe from land gained under Jomo Kenyatta.

A new constitution that spreads power should lessen the impact of this culture, but many Kenyans are pinning their hopes on the ICC to end impunity among the political classes and prevent more violence.

United States President Barack Obama, whose father was a Kenyan, believes this is the way forward.

'Kenya is turning a page in its history, moving away from impunity and divisionism toward an era of accountability and equal opportunity,' he said in a statement after Moreno-Ocampo named the six accused, which also include Minister for Industrialisation Henry Kosgey and former police chief Major General Ali Hussein.

Not everyone is so optimistic.

'The ICC is only one element ... to deal with impunity. The most important thing will be how ordinary people treat political leaders once campaigns start next year,' John Githongo, Kenya's former anti- corruption chief, told the German Press Agency dpa.

Githongo worked closely with Kibaki's Kikuyu-dominated inner circle until he was forced to flee the country after uncovering massive corruption. One of the members of that inner circle was civil service head Francis Muthaura, whom the ICC accuses of ordering the police to use excessive force.

Githongo believes the ICC's poor track record and the financial resources of the accused will sorely test the court.

'This is the hardest case they have had,' he said. 'They are facing an elite with 50 years of experience in political intrigue and machinations. Their lawyers will be better than the lawyers of the ICC, better paid than the lawyers of ICC.'

What happens to Ruto and Kenyatta, who have both protested their innocence, will have a major bearing on the next elections, set for 2012.

Kenyatta was considered a natural successor to Kibaki. Ruto has been suspended from his ministerial position while undergoing investigation for corruption, but is still viewed as a kingmaker who can bring millions of Kalenjin votes to whomever he backs.

Kibaki's initial reaction was to say that nobody would have to step down, and Kenyatta will undoubtedly resist any pressure on him to resign.

There is also a long way to go before the cases reach trial. Moreno-Ocampo's request for summonses must be approved by judges, and a pre-trial chamber must decide if there is enough evidence to continue.

Moves are afoot to get Kenya to withdraw from the treaty obliging it to cooperate with the ICC, and there are fears that fresh plans to create the local tribunals that could have headed off ICC involvement in the first place are part of an effort to hinder the prosecutions.

But should the ICC cases actually go to trial, the proceedings could take place in 2012. This would mean Kenyatta and Ruto may have to console themselves with background political roles as they fight to clear their names.

'Should the judges agree with Moreno-Ocampo, it will be difficult for top leaders to be in contention. But it does not mean they cannot use their influence,' James Shikwati, the chief executive of the Nairobi-based Inter Region Economic Network, told dpa.