Moreno-Ocampo Moves to Involve ICC in Investigation

The Republic of Kenya held presidential elections on Dec. 30, 2007. The two main candidates were then incumbent President Mwai Kibaki of the Party of National Unity (PNU)-a coalition founded on Sept. 16, 2007-and Raila Odinga of the Orange Democratic Movement (ODM). According to the Institute for Education and Democracy (IED), exit polls had Kibaki winning with 50.3 percent of the vote and Odinga trailing with 40.6 percent. But before the elections, the media was predicting an Odinga win. By Dec. 30, 2007, the Electoral Commission declared Kibaki the winner with a lead of 232,000 votes. Odinga accused the government of attributing at least 300,000 votes to Kibaki that did belong to him. Odinga urged Kibaki to admit defeat. He also called for a recount. Electoral commission leader Samuel Kivuiti admitted that there were voter irregularities, but that this was not a situation for the electoral commission to deal with, but the judiciary's responsibility. Within the hour of announcing Kibaki's win, tribal violence ensued, mostly directed towards Kikuyus, Kabiki's tribe. The government went as far as suspending live television for some days. 1,500 people were killed and the entire nation was divided along tribal lines. The United States and the European Union refused to recognize Kibaki's win. By Feb. 2008, a power sharing deal was brokered by former United Nations Secretary General Kofi Annan. Kibaki would retain the office of president while Odinga would gain the newly formed office of prime minister. Both ODM and PNU received an equal number of minister positions. After the elections, it became clear that the post-election violence was not spontaneous. The Kenyan government was urged by the world community and international bodies such as the U.N. and the International Criminal Court to pursue an investigation into the violence. Kenya was urged to end its culture of impunity by bringing those responsible to justice. The coalition government pledged to do so, but has yet to show concrete evidence of such an investigation. This was no surprise considering that high-level officials in both parties were thought to be involved. On Nov. 5, 2009, the lead prosecutor at the ICC, Argentinean Luis Moreno- Ocampo, met with President Mwai Kibaki and Prime Minister Odinga in Kenya. The Christian Science Monitor reported that after the meeting, Ocampo said he would ask, "The court's [ICC's] judges in the Hague formally to open an investigation into what he said were 'crimes against humanity' carried out after the rigged 2007 election." Both men have said they will cooperate with the ICC's investigation. But many in Kenya are skeptical of these promises, citing the culture of impunity for high level government officials. Esther Onyango, a Kenyan woman, expressed her distress for Kenya to the Christian Science Monitor when she said, "The Hague is our last chance. . .Two years ago, this place was burning. We were promised afterwards that the big people who ordered this would go to jail. . .but nothing has happened." Festus Muchene, a 23-year-old politics student at the University of Nairobi, told the Christian Science Monitor, "We have had so many scandals in this country before, and we get commissions and inquiries, but no one follows up and no one is convicted. This is what will happen again if it is left up to our leaders to be their own judge and jury: not guilty all around for the big men, and maybe some sacrificial lambs sent to jail for token sentences. We cannot allow that." Although it seems that many Kenyans support Ocampo in his endeavor, there are those that do not. Vincent Kibati of the Rift Valley (the arena of most of the post-election violence) told the Christian Science Monitor, "They should not touch our people. If they do, let me assure you that we will take up arms. And this time it will be a real fire-fight. We are armed and ready." There are concerns that if action is not taken, post-election violence after the 2012 elections will be much worse. On Nov. 9, 2009, the VOA reported that Kenya's Minister of Justice Kilonzo Mitula wants U.S. financial support for electoral reform. He warns that reform is the only way to curb post-election violence. Kitula argues that if the Obama administration is really interested in bringing about reform in Kenya, the way to do it is to financially support Kenya as it seeks to modernize its electoral system. Kitula wants to make the system electronic, arguing that with this reform, "the 2012 elections will be transparent beyond reproach." Moreno-Ocampo said he understood how urgent the situation in Kenya was. He promised to work to bring the request to open the investigation by December. He also promised to work as quickly as possible to have the investigation complete by the end of 2010. By pursuing an investigation, Moreno Ocampo risks either legitimizing the existence of the ICC or bringing about it's demise. If the ICC can bring the perpetrators to justice, it will prove legitimate. If it cannot, it will prove a powerless international body.