Controversy dogs Kenyan VP’s ICC trial

Critics say The Hague-based court is ‘flawed’ and work in Africa amounts to ‘race-hunting.

Looters fight over merchandise they rans
Kenya's 2007 post-election violence left hundreds dead and forced more than 600,000 from their homes [AFP]

Nairobi, Kenya Philip Kimunya pulls back his clothes to reveal scars on his hands and legs from five years ago, when he was trapped in a burning church in western Kenya during the inter-ethnic violence that followed the disputed elections in 2007.

Kimunya still wants those responsible for his injuries to be brought to justice. Like many Kenyans, he is riveted by the ongoing trial at the International Criminal Court (ICC) of two men accused of orchestrating the bloodshed.

Nowadays, he cares for his mother, who suffered a mental breakdown during the weeks of post-election carnage. “I want the trials to continue so that I can know how it happened that my life was disrupted so much,” he told Al Jazeera.

The violence that followed Kenya’s presidential elections claimed at least 1,100 lives, and forced more than 600,000 people to flee from their homes. Like Kimunya, many other survivors want to see the perpetrators brought to justice.

But achieving justice is not simple. Controversy around the current and upcoming ICC trials of Kenya’s leading politicians in The Hague continues to drive a wedge through the centre of this country of 44 million people.

This week, witnesses started testifying against deputy-president William Ruto, 46, who is accused of planning the atrocities. Prosecutors say he spent 18 months amassing militiamen, weapons and money ahead of the December 2007 poll.

Inciting violence

When his political party appeared to be losing, Ruto, who is from the Kalenjin tribe, allegedly unleashed waves of violence against supporters of then-president Mwai Kibaki, who hails from Kenya’s dominant Kikuyu ethnic group.

Gangs toting machetes, knives, and bows and arrows went on a rampage, torching homes and hacking victims to death. Reprisal attacks led to a spiralling ethnic conflict that was not resolved until international mediators stepped in and brokered a power-sharing deal.

There are allegations that the ICC is a European court targeting African leaders with a political agenda.

by - Njonjo Mue, International Centre for Transitional Justice

On Tuesday, the first prosecution witness, known only as P-0536 to protect her identity, choked with emotion as she told judges how a mob of machete-wielding youths set ablaze the church where she and her family had sought refuge.

Ruto shares the dock with Joshua arap Sang, 38, who allegedly used his Kalenjin-language radio station to whip up ethnic hatred against Kikuyus and other tribes.

Both defendants have pled not-guilty to three counts of murder, deportation and persecution of Kikuyus and others.

In November, a separate trial for President Uhuru Kenyatta is due to start. The 51-year-old son of Kenya’s independence icon, Jomo Kenyatta, is accused of enlisting his Kikuyu tribesmen to carry out retaliatory attacks on opposition supporters. He also denies the charges.

Global rights groups support the court action. Carla Ferstman, director of Redress, said trials can win “justice and truth” for victims. Netsanet Belay, from Amnesty International, warned of intimidation and an “extremely difficult environment” that has caused some witnesses to withdraw.

“For decades those who have turned Kenya’s elections into bloodbaths have gotten away with murder,” said Daniel Bekele, from Human Rights Watch. “This ICC trial tackles an impunity crisis in the country, and offers a chance for justice denied to Kenyans by their own government.”

Declining support

But within Kenya, public support for the ICC is waning. In July, the polling group Ipsos-Synovate calculated that only 39 percent of Kenyans wanted trials to proceed. That figure had dropped from 55 percent in April 2012.

This is partly because Kenya is torn between the desire for justice and the need for peace. Ahead of the most recent presidential vote in March, the one-time enemies, Kenyatta and Ruto, unexpectedly formed the Jubilee Alliance coalition and won a first-round victory.

President Uhuru Kenyatta, left, and his deputy William Ruto

Unlike the post-election mayhem of 2007-08, this year’s presidential election was largely calm. As well as winning the vote, the union of Kenyatta and Ruto – and their Kikuyu and Kalenjin followers – is seen as a source of peace and reconciliation.

“The political rhetoric is that the country is peaceful now because Kikuyus and Kalenjins work together in government,” said Njonjo Mue, from the International Centre for Transitional Justice. “But the reality is different. Those who endured rape, death and destruction of property still wait for justice.”

On the election trail, the candidates used the ICC as a campaign platform, warning voters of meddling prosecutors in the Netherlands, and whipping up nationalist sentiment in a country that was a British colony until 1963.

“It is no longer a secret that Kenyatta and Ruto applied ethnic manipulations of numbers to win elective positions not to serve the country and her interests, rather to shield themselves from accountability,” said Ndungu Wainaina, director of the International Center for Policy and Conflict.

Earlier this month, Kenyan parliamentarians voted to quit the ICC’s founding treaty, the Rome Statute, which Kenya joined in 2005. While the move was symbolic, it will take East Africa’s biggest economy at least one year to fully withdraw, and does not affect current trials.

Is ICC targeting Africans?

Lawmakers branded the court a “neo-colonialist” institution. The house majority leader Kithure Kindiki warned the “ICC has become a political court”, and its prosecution of Kenya’s leaders was a “humiliation … in a foreign country”.

Wariness of the ICC is not unique to Kenya. It is criticised because all its cases target Africans – from Sudanese president Omar Hassan al-Bashir for genocide and other crimes in Darfur, to the former Congolese fighter Bosco Ntaganda, who turned himself in to the US Embassy in Kigali in March.

The people who run this court want to increase their powers and are intoxicated by the idea of a supranational authority to police everything.

by - John Laughland, Institute of Democracy and Cooperation

At the African Union (AU) summit in May, leaders urged the ICC to refer Kenya’s trials back to Nairobi. Hailemariam Desalegn, acting as AU chairman, said the court’s “flawed” work in Africa amounted to “race-hunting”.

“There are allegations that the ICC is a European court targeting African leaders with a political agenda,” said Mue. “But these cases were either referred to the ICC by African countries or by the UN Security Council. Kenya was given several opportunities to try the cases at home, but the political elite declined to do so.”

The trials also open the ICC to criticisms that have dogged it since it began operating in 2002 – that its jurisdiction is limited by a membership that omits such major powers as the US, Russia and China. Israel’s absence is a bone of contention among Arab governments.

In The Standard newspaper, columnist Billow Kerrow criticised the “duplicity of the West”, which sees Kenya’s leaders targeted while others are not indicted. “Syria’s Assad has massacred thousands in broad daylight … yet, it is not an international crime,” he wrote.

Other critics say the court is overextending its powers. John Laughland, director of studies at the Institute of Democracy and Cooperation in Paris, said that Kenya’s post-election violence has no place in a tribunal for war crimes.

“The court was set up to deal with the laws of war, not judge on every single case of sporadic violence that happens around the world,” Laughland said. “The people who run this court want to increase their powers and are intoxicated by the idea of a supranational authority to police everything. 

“What frightens me about that is that it is all being done without following the basic constitutional principle that all power needs to be restricted and counterbalanced.”

Follow James Reinl on Twitter: @jamesreinl

Source: Al Jazeera