Posted by JEFFREY GETTLEMAN and MARLISE SIMONS on 15 12 2010 | Leave a comment
LAMU, Kenya — The prosecutor of the International Criminal Court is seeking to indict several high-ranking Kenyan politicians, including the finance minister and a former national police chief, for crimes against humanity in what he calls an orchestrated campaign to displace, torture, persecute and kill civilians during Kenya’s election crisis in 2007 and early 2008.
These are the first serious charges sought against Kenya’s political elite for the violence, and are intended to address one of Africa’s glaring weak spots — disputed elections — which have led to turmoil in Zimbabwe, Ethiopia, Nigeria and, most recently, Ivory Coast.
“This is a different kind of case,” Luis Moreno-Ocampo, the court’s chief prosecutor, said of the accusations, which are scheduled to be announced Wednesday. “This isn’t about militias. It’s about politicians and political parties. It’s about investigating leadership.”
And, Mr. Moreno-Ocampo added, “this isn’t just about justice. For Kenya, this is survival.”
Among the top six politicians named are Uhuru Kenyatta, finance minister and son of Kenya’s founding leader, Jomo Kenyatta; Mohammed Hussein Ali, the former police chief, who stands accused of unleashing police officers to shoot unarmed demonstrators; and William Ruto, arguably Kenya’s most divisive political figure, widely accused of instigating violence but revered as a hero within his ethnic community, the Kalenjin. Some of the worst episodes of violence, including the burning of a church with dozens of women and children inside, occurred in predominantly Kalenjin areas.
The case follows an international effort to help pull Kenya back from the brink of chaos after the disputed election in December 2007 set off widespread protests and ethnically fueled fighting, which swept the country and killed more than 1,000 people.
“Finally, we have our day,” said Maina Kiai, a former Kenyan human rights official. “This is the first time we have high-ranking people facing the law where they have no control and they can’t bribe their way out of it.”
Mr. Kiai and many others say Kenya has had a dangerous habit of whitewashing sensitive investigations, often setting up high-level commissions but never punishing the culprits. This record of impunity has led to mass killings around previous elections as well, and many Kenyans fear that the next election, in 2012, could be worse if the ringleaders of 2007 go free. Others worry that prosecutions will inflame tensions instead.
The case brings the court into some uncharted territory. All of its previous cases have focused on militias and war zones, and this is the first time that Mr. Moreno-Ocampo has stepped in on his own initiative, without a request from the home country or by the United Nations Security Council.
Mr. Moreno-Ocampo has been criticized for solely prosecuting Africans and for being overzealous, particularly in his dogged pursuit of genocide charges against President Omar Hassan al-Bashir of Sudan. The effort to arrest Mr. Bashir has proved very difficult and alienated some African countries.
This time, Mr. Moreno-Ocampo plans to ask the judges at The Hague to issue a summons, not an arrest warrant. That would allow the accused to turn themselves in and spare Kenya, at least initially, the awkwardness of having to hand over its political elite. Mr. Moreno-Ocampo has also implicated leaders from both sides, the government and the opposition, a decision many Kenyan observers say could be crucial in influencing what happens next — peace or more bloodshed.
“If the I.C.C. is seen as having done a balanced job,” said John Githongo, a former anticorruption official who was forced into exile and recently returned to Kenya, “then it will be more difficult for the elite to mobilize people violently against it.”
But, Mr. Githongo added, “Kenya is now a volatile country. The politics are bubbling. A lot of change is happening at the same time. Anything is possible.”
In recent days, Kenyan police commanders have put their forces on high alert in anticipation of Mr. Moreno-Ocampo’s announcement. But officers were given explicit orders to use restraint, especially with live bullets. Many Kenyans expect Mr. Ruto’s supporters in the turbulent Rift Valley to be the most upset.
The case is expected to face legal hurdles as well. The prosecutor is seeking to charge all six men with crimes against humanity. But several international-law experts and a judge at the court have questioned whether the violence of 2007, while serious, fits that definition.
“The question is not whether the crimes have happened,” wrote Judge Hans-Peter Kaul, one of three judges who reviewed the prosecutor’s investigation. “The issue is whether the I.C.C. is the right forum before which to investigate and prosecute these crimes.”
It was not, Judge Kaul concluded. The two other judges disagreed, allowing the investigation to proceed. But experts said the question of the court’s jurisdiction would linger.
After the disputed election, Kenya’s leaders vowed to pass a new constitution; set up a local tribunal to prosecute the election killings; and undertake land reform, police reform and a number of other ambitious reforms whose urgency was exposed by the election turmoil.
Kenya’s political class accomplished some of these tasks, including the peaceful passage of a new constitution in August that devolves power and establishes a bill of rights. But efforts to set up a local tribunal were typically blocked by the very politicians who were implicated. Now some Kenyan politicians, including several of those named in the charges, are trying to resuscitate the idea.
According to Mr. Moreno-Ocampo, the evidence predates the disputed election in December 2007, in which Kenya’s incumbent president, Mwai Kibaki, was declared the winner, despite mounting evidence that the real winner was Raila Odinga, an opposition politician who is now prime minister.
Mr. Moreno-Ocampo says Mr. Ruto (who used to be a minister but was suspended recently because of corruption accusations); Henry Kosgey, the minister of industrialization; and Joshua arap Sang, a radio broadcaster — all well-known opposition figures — began planning a year before the election to attack supporters of the governing party. After Mr. Kibaki was declared the winner, prosecutors say, the network they cultivated burned homes, killed civilians who had supported Mr. Kibaki and systematically drove people off their land.
In response, prosecutors say, Mr. Kenyatta, Mr. Ali and Francis Muthaura, the head of the civil service, “developed and executed a plan” for “suppressing and crushing” opposition protests and keeping the governing party in power.
The police were sent to opposition strongholds “where they used excessive force against civilian protesters,” and Mr. Kenyatta and Mr. Muthaura deputized one of Kenya’s most brutal street gangs, the Mungiki, to “organize retaliatory attacks against civilian” opposition supporters, the prosecutor contends.
But many observers say evidence from the earliest days of the crisis implied that some of the killings were spontaneous expressions of rage, not centrally organized, and that the organized violence was planned at local levels, by chiefs and elders, not necessarily by top politicians.
The suspects have denied any wrongdoing. Mr. Ruto has called the evidence “cooked up.” He has said that witnesses have been bribed and that the case “will in the end amount to fraud.”
Mr. Kenyatta said in October that he was “not concerned personally by the I.C.C. warrants” and that “once due process has taken place, the truth eventually will come through.”
Neither of the two political protagonists whose rivalry set off the violence, the president and the prime minister, are implicated in the case. Many experts believe this is one reason that Kenya will ultimately cooperate.
“The Kenyan government is not Zimbabwe,” said Mr. Kiai, the former human rights official, referring to Zimbabwe’s antagonistic relations with the United Nations and the West. “International acceptance is important to Kenya.”
Jeffrey Gettleman reported from Lamu, and Marlise Simons from Paris.
source: The New York Times