ICC hearings

Deputy Prime Minster Uhuru Kenyatta, Head of Public Service Francis Muthaura and former police chief Mohammed Hussein Ali are scheduled to appear in court at the ICC on Wednesday. They are accused of crimes against humanity, including murder, forcible transfer, rape and persecution. The ICC holds a confirmation of charges hearing to determine whether there is sufficient evidence to go to trial.

Three other suspects, suspended Minister of Higher Education William Ruto, member of parliament Henry Kiprono Kosgey and radio broadcaster Joshua Arap Sang, had confirmation hearings at the ICC earlier this month and are accused of crimes against humanity, including murder, forcible transfer and persecution.

According to ICC documents, the 2007-2008 post-election attacks left more than 1,100 people dead, 3,500 injured and up to 600,000 forcibly displaced. During 60 days of violence, there were hundreds of rapes, possibly more, and over 100,000 properties were destroyed in six of Kenya's eight provinces, the ICC said.

The violence had erupted between supporters of the Party of National Unity (PNU) and the Orange Democratic Movement (ODM) after President Mwai Kibaki of the PNU was declared the winner. ODM leader Raila Odinga claimed the elections were rigged.

Weeks of negotiations led by former UN Secretary-General Kofi Annan resulted in Kibaki and Odinga signing a power-sharing agreement in February 2008 to form a joint government and end the ethnic bloodshed. Odinga became prime minister. The deal also stipulated that the perpetrators for the violence would face justice in Kenya or before the ICC.

Justice at last?

There had been attempts to prosecute the post-election crimes locally, but to no avail. The government set up "The Commission on Inquiry on Post Election Violence" (CIPEV), chaired by Justice Philip Waki. But Kenya's political elite showed little readiness to support the process.

In 2008, Waki handed over the CIPEV report about the clashes to Kibaki and Odinga. The report called for the establishment of a special court to try those accused of masterminding the post-election violence.

At the same time, Waki gave a sealed envelope to Annan with the names of some of the alleged masterminds with the instruction to pass it on to the ICC should the Kenyan government fail to set up a tribunal. The ICC prosecutor Luis Moreno-Ocampo took up investigations in 2009, releasing the names of the six suspects in 2010.

Many Kenyans are relieved that the six men - more commonly known as the "Ocampo 6" in reference to the ICC prosecutor's name - are finally appearing in a courtroom to face charges. The Kenya Human Rights Commission, a non-governmental organization based in the capital Nairobi, welcomed the process.

"For the first time in the history of this country, we see that it is possible to actually have violations and hold people accountable in a way that respects everybody's rights," said Atsango Chesoni, the Commission's executive director.

Ethnic divide

Ethnic clashes have been a common feature in Kenya since the introduction of multi-party politics in the early 1990s. In the Rift Valley, Kalenjin militias were used to attack and kill members of other ethnic groups before the polls in 1992 and 1997, in an attempt to prevent opposition supporters from voting. However, none of the masterminds of these violent clashes has been brought to justice so far.

In the current case, the ethnic violence was directed against the Kikuyu in the populous Rift Valley, the area worst affected by the post-election violence. President Kibaki is a member of the country's most populous ethnic group. The Kikuyu in turn retaliated against supporters of Odinga, who is a Luo.

Abdullahi Boru Halakhe, an analyst with the International Crisis Group who specializes in Kenya, said many Kenyans were enthusiastic at first when the case got underway in The Hague.

"There were tremendous expectations about the ICC process initially," Halakhe said. "The polls that were taken before the suspects were named showed that Kenyan people, because they had very little faith in the national judicial process, supported the ICC." However, this support has dropped due to ethnic reasons, he said.

"Once the charges were confirmed, and Kenyans being who they are, where everything revolves around ethnicity, polls that were taken a couple of weeks ago showed that the numbers have tremendously dropped from the backyards of these politicians," Halakhe said. Support had fallen from the high 60 percentiles to some 30 percent, he said.

Few options

At the current stage, it's by no means clear that the perpetrators of the 2007 clashes will face the law. After the confirmation hearings are concluded, the ICC is left with three options. The charges could be dropped or confirmed for all of the suspects, the charges could be dropped for all of the suspects, or the charges could be dropped for some of the suspects and confirmed for others.

After the hearing on Wednesday, the judges will have 60 days to provide a written decision. If the chamber decides that there are "substantial grounds" to believe that a defendant has committed the crime alleged, the charge will be confirmed. Only then would the real trial begin for the now infamous "Ocampo 6."

With elections planned in Kenya in 2012, the world will follow the case closely. Ruto and Kenyatta have continued their political careers as if nothing much had happened. They have indicated that they want to run for the presidency in the next elections.

Authors: Ruth Aine Tindyebwa, Sabina Casagrande
Editor: Michael Knigge