December 7, 2022

ICC looks at Kenya: Backgrounder on how we got here

Last week the ICC Prosecutor applied to open an investigation into the post-election violence in Kenya. The three judges of the Pre-Trial Chamber will decide whether or not to allow him to begin investigating, but as the ICC is a court of last resort, I thought it would be useful give a brief summary of how it got to this point . . .

After the violence in Kenya following its contested election at the end of 2007, the Kenya National Dialogue and Reconciliation and the Panel of Eminent African Personalities, led by Kofi Annan, mapped out a way forward. One outcome of the process was the establishment of what became known as the Waki Commission.

In October 2008, the Waki Commission’s report was released. Its almost 500 pages are well worth the read. It showed that while the scale of the 2007 post election violence was unprecedented, violence had been a feature of Kenyan elections since multi-party politics were restored in 1991. It also showed that while in some instances the post-election violence was spontaneous, in other cases it was systematic and pre-planned, and that civilians were targeted based on their ethnicity and political preferences.

In addition to the recommendation of a number of reforms, in particular police reform, the Commission recommended the establishment of a Special Tribunal. The proposed tribunal would be based in Kenya, but independent of the Kenyan judiciary and would be staffed by a mix of Kenyans and internationals. The Commission handed Kofi Annan a sealed envelope with the names of suspects from its investigation, and Annan was to hand the envelope to the ICC Prosecutor if the Special Tribunal was not established in a timely manner.

While the proposal for a Special Tribunal was initially accepted by the “Grand Coalition” (the power-sharing government established in the wake of the violence), the government stalled and stalled. On July 3, a Kenyan delegation went to The Hague and promised the ICC to provide benchmarks on their plan towards establishing a “special tribunal or other judicial mechanism adopted by the Kenyan Parliament” by September. They also agreed that if efforts to conduct national proceedings failed, they would refer the situation to the ICC within a year.

A week later, and long after the timeline originally established by the Waki Commission, Annan handed the envelope over to the ICC. (I was living in Nairobi at the time and it was front page news every day). Two weeks later President Kibaki and Prime Minister Odinga came out with a statement from Cabinet (an unwieldy-sized group that served to satisfy the claims of different groups to power after the failed election) rejecting the establishment of a Special Tribunal. Given the complicity (at minimum) of those currently in the Grand Coalition, many Kenyans believed this was a step towards self-serving impunity.

No plan for establishing the Special Tribunal was forthcoming and so at the beginning of November, the ICC Prosecutor went to Nairobi to inform Kabaki and Odinga that if they didn’t refer the situation by December, he would seek authorization from the ICC’s Pre-Trial Chamber to open an investigation.

When he did this on Thursday it marked the first time that the Prosecutor has tried to use his proprio motu power to open an investigation (in English – he is trying to open an investigation of his own accord rather than waiting for any political authority, like a state or the UN Security Council, to refer it to him). This is the “rogue prosecutor” (Article 15) action that John Bolton so feared. Of course just because he makes an application to open an investigation under Article 15 doesn’t mean that the Pre-Trial Chamber will permit him to do so. They will only allow it if all the statutory requirements are met (i.e. it’s not such a rogue-encouraging provision of the Statute after all).

Hanging over this entire story are the elections scheduled for 2012, which most Kenyans I have spoken with fear will bring renewed violence. Part of the theory behind the Waki Commission’s aggressive timeline for the establishment of an independent tribunal (in combination with the establishment of a Truth and Reconciliation Commission) was to signal that there is no impunity for these crimes, with the hope of deterring their re-occurrence at the next election. Reports in the Kenyan press last week suggested the ICC Prosecutor is acutely aware of the ticking time bomb that the 2012 elections present – although whether with even the best of intentions the wheels of justice can move any faster in The Hague than they have to date, is a different question.

Even if the Pre-Trial Chamber does accept the Prosecutor’s application, and even if the ICC does move at a pace we have yet to see it capable of, the ICC is just one small part of what is needed in the build-up to 2012. It would be tragic (and entirely against the spirit of the Rome Statute) if the fact of the situation going to the ICC de-energized the calls for all the other necessary recommendations in the Waki report to be carried out – and soon.

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