Kenya tries to block ICC prosecution of ministers over election violence

Daniel Howden
Thursday 10 March 2011 01:00

Kenya has begun a last-ditch effort at the United Nations to block the prosecution of members of its own government for crimes against humanity by coordinating violence after elections in 2007 that left more than 1,300 people dead and displaced 400,000 more.

This week's attempt at the Security Council comes after the International Criminal Court (ICC) summoned six suspects, including two cabinet ministers and the head of Kenya's civil service, to appear at The Hague on 7 April.

Kenyan diplomats in New York are calling for the ICC case to be suspended on the grounds that it will derail domestic prosecutions of those responsible for post-election violence. Kenya's Vice-President Kalonzo Musyoka met the president of the Security Council this week to warn that the ICC prosecution could spark renewed violence in the East African nation.

Nairobi is thought to have secured the backing of non-permanent security council members South Africa, Nigeria and Brazil. However, Western diplomats have signalled their support for a possible trial and said privately that the UK or the US may veto any proposed suspension to allow the ICC to go ahead. "Kenya has been advised that it doesn't have the support to do this," said a diplomat at the UN in New York. "These six are accused of very serious crimes that should be prosecuted."

Kenya's political elite has closed ranks around six suspects since they were named in December by ICC chief prosecutor Luis Moreno Ocampo. Known in Kenya as the "Ocampo 6", they include: the finance minister and scion of Kenya's founding family, Uhuru Kenyatta; the suspended agriculture minister William Ruto; and Francis Muthaura, the permanent secretary to the cabinet and right-hand man to the president, Mwai Kibaki.

Mr Moreno Ocampo alleged that Mr Ruto began plotting attacks on supporters of Mr Kibaki a year before the December 2007 election and worked with two others to coordinate a campaign of killing and forced deportations in western Kenya's Rift Valley.

Mr Moreno Ocampo charged Kenyatta, Muthaura and another man in a separate case. They are suspected of murder, deportation, persecution, rape and inhumane acts committed in retaliation against supporters of Raila Odinga, the current prime minister.

The post-election clashes erupted along tribal lines and were stopped only after former UN Secretary-General Kofi Annan mediated a peace agreement that created a coalition government in which Odinga was appointed prime minister.

The court's pursuit of Kenya's elite has been popular in the country itself, where recent opinion polls have shown two-thirds support for the ICC.

Elizabeth Evenson, international justice counsel at Human Rights Watch, said: "If the ICC can't be allowed to target those at the highest level of responsibility then it can't do the job that it was created to do."

No arrest warrants have been issued as the suspects are not seen as flight risks and until December's revelations the Kenyan government had appeared to cooperate with The Hague.

But last year's naming of the suspects sparked panic in Nairobi's political elite and parliament quickly voted to remove Kenya from the Rome Treaty which set up the ICC. Yesterday ministers queued up to challenge Mr Moreno Ocampo. "As a state, we wish to challenge the admissibility and jurisdiction of the case... and we shall make the challenge at the earliest opportunity," said Justice Minister Mutula Kilonzo.

The efforts to prevent the Ocampo 6 from facing international justice have stopped short of a full withdrawal of cooperation and all six suspects said yesterday that they would obey the summons.

The Kenya case has become an important test of ICC's credibility as it seeks to show that the court can prosecute high-level suspects while they are still in office. Previous efforts have floundered – Sudan refused to cooperate with the court's warrant for the arrest of President Omar al-Bashir.

The political wrangles over the Kenya case come amid warnings from Mr Moreno Ocampo that he will pursue members of Col. Gaddafi's regime over their role in alleged crimes against humanity in Libya. The prosecutor has been accused of overreaching in Kenya by targeting members of President Kibaki's inner circle and playing politics in Sudan where he was revealed as the source of leaks which sought to embarrass President al-Bashir over allegedly hoarding billions of dollars.

War crimes at the ICC

Yugoslavia Established in 1993, the ad hoc tribunal on war crimes – separate to the ICC proper – has indicted 161 people, with 48 sentenced. But the cases still drag on: Radovan Karadzic's trial appeal is not expected to finish until 2014.

Rwanda Also a tribunal, the international court that looked into the genocide in Rwanda began sitting in 1994. Many believe it has played a key part in the country's process of reconciliation.

DR Congo The ICC proper's first trial against warlord Thomas Lubanga, accused of recruiting child soldiers, has been beset by delays for five years. Three other suspects are also on trial.

Sudan Attempt to bring Sudan's Omar al-Bashir to justice has harmed the court's reputation. The President has travelled with impunity despite an arrest warrant.

Libya Whether Muammar Gaddafi ultimately faces trial or not, the unananimous UN referral to the ICC was seen as bolstering the court's authority.

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