Kenya: The ICC’s “Ocampo Six” Case Moves Forward, Setting Stage for Tensions

Kenya’s “Ocampo Six” are six political figures accused by International Criminal Court (ICC) Prosecutor Luis Moreno Ocampo of having played critical roles in fomenting political violence following Kenya’s 2007 presidential elections. In April, the suspects appeared before the Court for a formal presentation of the charges against them. In September, the suspects will return to The Hague for a “confirmation of charges” hearing, the last major stage before trials begin. Daily Nation explains the calendar:

The oral hearings for the case against radio presenter Joshua Sang and suspended ministers William Ruto and Henry Kosgey would close on September 20 but the judges may ask the parties for more information in writing.

If the judges are satisfied with the oral submissions, the three would know whether they will go to trial by November 20 but the date may be later if the judges ask the parties for more information.

The oral hearing of the case against Deputy Prime Minister Uhuru Kenyatta, Civil Service head Francis Muthaura and former police commissioner Hussein Ali will run from September 21 to October 11.

The three will then know their fate as early as December 20 or later if the judges ask for more information.

Many Kenyan leaders are still not on board with the process. Some of the suspects want the hearings delayed. Kenyan investigators are interviewing the suspects as the government appeals to the ICC to allow Kenya to try the accused at home. But it seems the case will go forward; Kenya already lost one appeal to handle the cases on its own.

The timing of the different phases of the case set the stage for domestic tensions to grow in Kenya. The next presidential elections won’t be until December 2012, but campaigning has already effectively begun. Uhuru Kenyatta, current Finance Minister and one of the accused, is a major presidential aspirant. Although several polls have shown that a majority of Kenyans support the ICC process, if campaigning heats up at the same time that the trial intensifies, Kenyatta’s supporters could begin to say that the ICC is interfering in Kenyan politics and unfairly targeting their champion. Further politicization of the ICC case would add to the potential for a tense election year.

To stress the point even further, I’ve become increasingly convinced that law is politics, or at least that there is blurry line between the legal realm and the political realm. Putting it more concretely, the ICC has become an actor not just in the legal sphere, but also in Kenyan politics. That involvement carries risks of unintended consequences, risks that are particularly chilling in light of fears that next year will be another bloodbath.

Africa News Roundup: Senegal, Nigeria, Niger, China in Africa, and More

Senegal’s President Abdoulaye Wade continues with his plans to seek re-election in 2012.

Nigerians will vote in state elections on Tuesday. Following last week’s riots, the government has deployed more troops and closed the borders. Defeated presidential candidate Muhammadu Buhari, meanwhile, continues to draw criticism, and was recently banned from entering Niger State.

Dele Olojede, publisher of Nigeria’s Next, has an op-ed in the New York Times on the presidential elections that is well worth reading.

In the country of Niger, the new President Mahamdou Issoufou has appointed his cabinet.

AFP reports on AQIM’s latest (alleged) activities in the Sahel:

Al-Qaeda in the Islamic Maghreb (AQIM) is building a new base in Mali near the Mauritanian border, with a view to attacking that country, security sources said Thursday.

“We have learned that vehicles are transporting AQIM fighters into the Wagadou forest, in a zone situated in the east in the Malian district of Nara, not far from the Mauritanian border. It is a new base they are installing,” one of the security sources told AFP.

In Burkina Faso, where there is ongoing unrest among soldiers, students, merchants, and others, President Blaise Compaore has appointed himself as defense minister.

Mr Compaore revealed the move in a cabinet reshuffle announced on national television.

Last week, he ordered bonuses for soldiers, sacked the head of the army and dismissed the government in a bid to reassert his authority.

New army chief Gen Honore Nabere Traore said mutineers would meet Mr Compaore.

“The crises are heading toward a solution,” Gen Traore said on public radio, adding that officials had “found adequate responses” to the mutineers’ demands.

in the Guardian, Joshua Rozenberg writes, “Prosecutor Luis Moreno-Ocampo is the best asset of those opposed to the international criminal court.”

The Economist has some handy charts on China’s trade with Africa.

What are you reading today?

Kenya: ICC Rejects Delay, Begins Hearings for “Ocampo Six”

Today and tomorrow, Kenya’s “Ocampo Six” will appear in front of the International Criminal Court (ICC) in answer to summons from Chief Prosecutor Luis Moreno-Ocampo. These Kenyans – former MPs William Ruto and Henry Kosgey, former police commissioner Mohammed Hussein Ali, radio journalist Joshua Sang, Head of Public Service Francis Muthaura, and Deputy Prime Minister/Finance Minister Uhuru Kenyatta – stand accused of fomenting violence after Kenya’s contentious 2007 elections.

The affair has produced mixed reactions in Kenya. The ICC’s case against the “Ocampo Six” has displeased Kenyan leaders, who have called for a one-year deferral of the proceedings. The ICC has rejected Kenyan government requests for a special hearing and more time, but the UN Security Council will consider Kenya’s deferral request in its meeting tomorrow.

As it became clear that the initial hearings, at least, would take place, Kenyan leaders spoke out in the press and in public about the case:

The International Criminal Court hearings against Kenyan suspects is “unprecedented and unfortunate,” said Prime Minister Raila Odinga.

“Unprecedented because it has never happened to our citizens before,” Odinga said in an e-mailed statement from the East African nation’s capital, Nairobi, today. “Unfortunate because it is a big statement on the failure of our national institutions. From the ICC, we expect nothing but justice for the victims and a fair process for the suspects.”

In a special address yesterday, Odinga stressed themes of national unity. Odinga’s cautious statements, which are open to multiple interpretations, suggest to me that the hearings are making Kenyan leaders nervous about potential domestic fallout.

At the same time, some indicators show strong support among the Kenyan population for the hearings. Two polls, one conducted in December and the other released this month, say that around 60% of Kenyans want the case to go forward. I take such polls with a grain of salt, but it does seem that many Kenyans back the proceedings. That support potentially leaves Kenyan politicians at odds with some of their consituents.

What happens next? Moreno-Ocampo has laid out different stipulations for different defendants, which Kenya’s Daily Nation outlines here (see also their helpful list of trial participants here). Long story short, the case could take quite a while to resolve.

When I last wrote about Kenya and the ICC in March, it was unclear whether or not the “Ocampo Six” would even show up to the ICC. My suspicion at the time was that they might refuse, and clearly that hasn’t happened. It seems Kenyan government officials are still pinning their hopes on a UNSC-led deferral of the case, but that may not come. The Economist‘s Baobab has said that “the future of humanitarian law and of the ICC as an effective supranational body depends on the Kenyan case.” If so, the ICC has for the time being blocked a major challenge to its authority.

NTV Kenya has a video report on Uhuru Kenyatta, the defendant with the highest political profile:

Kenya: Will the “Ocampo Six” Heed the ICC’s Summons?

This week, Kenyan politicians and diplomats worked to convince UN and US leaders to delay the trial of the “Ocampo Six,” six Kenyans whom Chief Prosecutor Luis Moreno Ocampo of the International Criminal Court (ICC) has accused of fomenting electoral violence in 2007-2008. But the ICC has thrown down the gauntlet, summoning the six Kenyans to appear before the Court on April 7. Now the Kenyan government has a choice: will it tell the six (one of whom, Uhuru Kenyatta, stands some chance of becoming Kenya’s next president) to go, or will it defy the Court?

A BBC report on Nairobi’s reaction makes it seem that Kenya will choose the path of defiance:

Kenya says it will challenge the International Criminal Court’s right to try six Kenyans suspected of being behind post-poll violence in 2008.

[…]

In a statement, Kenya’s government said it would also challenge the ICC’s jurisdiction.

The ICC said the Kenyan government should bring the matter before the judges and then they will decide whether to grant the challenge.

The BBC’s Will Ross in Nairobi says now that the reality of the ICC trials is hitting home there has been a late rather panicky effort to save the politicians from going to The Hague with a promise that justice will be pursued locally.

If Kenya allows the six men to refuse the Court’s summons, it will find significant support in Africa. And the example set by Sudan in defying the Court no doubt plays into the Kenyan government’s decision-making process. Given that Sudanese President Omar al Bashir remains free, Kenyan officials may decide that the consequences of resisting the Court are not serious.

Kenya’s Conflict with the ICC Continues

In January, I wrote that the standoff between Kenya and the International Criminal Court over the so-called “Ocampo six” was one of 2011’s top stories to watch in Africa. On December 15 of last year, ICC Chief Prosecutor Luis Moreno Ocampo announced his intention to try six prominent Kenyans on suspicion of fomenting electoral violence in 2007-2008. Since then, the case has caused controversy within Kenya and internationally, raising important issues about the future of Kenyan politics, questions about international justice and African sovereignty, and new tensions in Kenya’s relationship with the US.

The matter of the “Ocampo six” reverberates strongly in Kenyan politics because of the high profile of the targets. They include Higher Education Minister William Ruto (suspended), Industrialisation Minister Henry Kosgey, Head of the Civil Service Ambassador Francis Muthaura, former Police Commissioner Major General (Rtd) Mohammed Hussein Ali, and KASS FM radio presenter Joshua arap Sang, all of whom are well known in Kenya. Perhaps most importantly, the sixth member of the list is Uhuru Kenyatta, son of Kenya’s first president, Jomo Kenyatta. The younger Kenyatta, who is currently both Finance Minister and Deputy Prime Minister, is a strong candidate to replace current President Mwai Kibaki. The accusations against Kenyatta and the others could affect the 2012 elections in Kenya.

Domestically, the situation has already divided Kenyans. One poll of around 2,000 mobile phone users indicates majority support for the trials among the population, but many elites have reacted to the ICC’s actions with hostility. A week after Ocampo’s announcement, the Kenyan parliament “voted overwhelmingly for the country to pull out of the treaty which created the [ICC].” President Kibaki also sided against the ICC, arguing that Kenya needed local tribunals to deal with the problems stemming from 2008’s violence. These decisions in turn angered some civil society groups.

Internationally, the issue is also making waves. Vice President Kalonzo Musyoka meets this week with UN Secretary-General Ban Ki Moon and with US government officials to urge a deferral of the case by a year. The AU supports Kenya’s request, but international organizations like Human Rights Watch have called on both the AU and the Kenyan government to allow the ICC’s work to continue.

The conflict has deepened feelings among some Kenyans, especially elites, that the ICC represents a new and insidious form of Western domination of Africans. The BBC reports that when the Kenyan parliament voted to leave the ICC,

MPs decried the ICC as a colonial, anti-African court and said that Kenya was surrendering its sovereignty.

“It is only Africans from former colonies who are being tried at the ICC,” Kenya’s Daily Nation paper quotes Energy Minister Kiraitu Murungi as saying.

“No American or British will be tried at the ICC and we should not willingly allow ourselves to return to colonialism,” he said.

This feeling has intersected with ongoing tensions in the US-Kenya relationship. These tensions concern punitive measures the US has already taken against Kenyan elites in response to the 2008 violence. Revelations about Kenya in the Wikileaks embassy cable dump exacerbated these tensions, and now Kenya’s Daily Nation is writing about “How Kenya Rejected America’s ICC Plot.” The newspaper sees the US as an aggressive and hypocritical actor aiming to undermine Kenyan sovereignty:

The American government tried for years, without success, to pressure Kenya into signing an agreement to protect Americans who might be wanted by the International Criminal Court.

Documents released by the whistle-blower website WikiLeaks show US frustration that Kenya resisted all types of inducements, arm-twisting and threats to sign the so-called Article 98 agreement.

That is a bilateral agreement by which Kenya would undertake not to hand over to The Hague any American citizen sought for war crimes, crimes against humanity, genocide, mass murder or other crimes of that nature.

Ironically, the US is now at the forefront in pressing the government to accede to ICC trials for key officials facing possible indictment for the post-election violence.

The US is itself not a party to the ICC and has over the past six years waged a worldwide campaign to protect its military forces and civilians from jurisdiction of the international court.

The pressure applied by the US included visa bans against ministers and other officials, cutbacks in military cooperation and development aid; and travel warnings that adversely affected the flow of American tourists to Kenya by depicting the country as unsafe because of terrorism threats.

The ICC issue includes more parties than just the US and Kenya, but it could affect that relationship more than any other.

A final thought is that if Uhuru Kenyatta becomes the next president of Kenya (and my speculation that he might win comes from a knowledgeable Kenyan acquaintance, not from hard data, so take this with a grain of salt), the ICC’s credibility may slip further in Africa. If in 2012 there are two African heads of state (Kenyatta and Sudanese President Omar al Bashir) who refuse the ICC’s summons, the Court may end up looking ineffectual. The stakes, then, in Kenya’s battle with the ICC are high on both sides.

Kenya: President Kibaki Criticizes US Ambassador Ranneberger over Wikileaks Revelations [UPDATED]

Two weeks ago, I wrote that US Ambassador Michael Ranneberger’s calls for prominent Kenyan officials to step down would put US influence in Kenya to the test. New Wikileaks revelations about US attitudes toward Kenya are now prompting Kenyan elites, including President Mwai Kibaki, to criticize Ranneberger. Some Kenyan officials are even calling for the ambassador’s recall to Washington. It does not seem now that Ranneberger’s rhetoric will produce the changes he sought, and in fact he may lose his post, which could in damage US prestige in Kenya.

VOA reports:

Since the release of classified cables by WikiLeaks on December 8 and 9, Michael Ranneberger has been called a rogue ambassador and many politicians are demanding his recall to Washington.

[…]

Speaking [Sunday] at a celebration in Nairobi, Kenyan President Mwai Kibaki criticized Ranneberger for his alleged attempts to influence national affairs.

[…]

Ranneberger is widely known for his youth outreach efforts in Kenya. Recently, politicians have accused him of using U.S. aid programs to incite the nation’s youth and foment change in the country’s leadership. Last week, Prime Minister Raila Odinga asked Ranneberger to end his outreach campaigns.

The Prime Minister called Sunday for Kenya’s international partners to respect its people as well as its sovereignty.

In the WikiLeaks exposed communiqués to Washington, Rannenberger cited Kenya’s “rampant, high-level corruption” – as well as its “culture of impunity” – as the two main obstacles in the path of reform. He included the president and prime minister as part of an “old guard” with vested interests in the culture of impunity.

[…]

Nairobi University School of Diplomacy and International Relations Professor Gerrishon Ikiara said the damage done to the Ambassador’s credibility likely will prompt his recall to Washington.

Whether Ranneberger stays or goes, I think Washington should take Kenyan leaders’ reactions to his leaked statements seriously. I do not mean that Washington should stop urging reform and denouncing corruption in Kenya. I do mean that the attitudes Washington’s representatives display toward Kenya, both in public and in private, have repercussions that can undermine stated US policies in Kenya. At a critical moment for Kenyan justice – namely, today’s announcement by International Criminal Court Prosecutor Luis Moreno-Ocampo of six Kenyan politicians he will prosecute for “crimes against humanity during the post-election violence of 2008,” and fears that more ethnic violence is on the horizon – a more respectful attitude toward Kenya on the part of Washington could have given Washington more influence over the situation. Instead, the US must decide whether to recall a diplomat who has been publicly denounced by the leaders he is supposed to engage.

NTV Kenya has footage of President Kibaki’s speech:

UPDATE:

Moreno-Ocampo releases the names of top Kenyan officials he will prosecute. The BBC has more.

President Obama responds:

US President Barack Obama Wednesday called on all Kenyans to cooperate with an International Criminal Court investigation into the violence triggered after contested elections there three years ago that left more than 1,500 people dead.

“I urge all of Kenya’s leaders, and the people whom they serve, to cooperate fully with the ICC investigation and remain focused on implementation of the reform agenda and the future of your nation,” he said.