Today, the International Criminal Court’s began its “confirmation on charges” hearings for the Ocampo Six, and the conventional wisdom holds that the proceedings will be a major test for some of Kenya’s savviest politicians. However, the ICC hearings also present an important hurdle for the nearly decade-old judicial body behind them, the International Criminal Court, and its outspoken Chief Prosecutor, Luis Moreno-Ocampo. Although the Court began in 2002, its relationship with Africa has been contentious, rife with misunderstanding, and seldom free from criticism.[i] Moreno-Ocampo, prosecutor since 2003 and the only person to hold the title, has taken ownership of the Kenyan indictments, propelling the process from the initial investigations, to the first Hague appearances last April, to the September confirmation hearings.
Last December, the Kenyan media quickly branded the indicted Kenyans as the “Ocampo Six”””but a more apt title may have been “Ocampo’s Six,” given the Argentine prosecutor’s level of involvement in the investigations. Ever since the prosecutor untied the ribbon on Kofi Annan’s mysterious envelope, the proceedings, and the six men involved, have been his for the keeping.
Across the continent and in Kenya specifically, it’s well known that the Court and Moreno-Ocampo have image issues. Many in Africa claim the Court smacks of neocolonialism: all of the ICC’s twenty-six indicted individuals are indeed African, and all of the current investigations and/or trials involve atrocities committed on the continent. Unfortunately, the objections do not come solely from corrupt politicians who invoke hackneyed sovereignty claims, either. Credible polling from Synovate last month indicates that only 56 percent of Kenyans favor the ICC process, down from 68 percent during October 2010.[ii] More importantly, declining support in specific provinces may demonstrate that some of the Ocampo Six have swayed opinions over their alleged plight at the hands of the ICC. In Rift Valley Province””home to the lion’s share of William Ruto’s supporters, not to mention land conflicts dating back decades””36 percent of those polled now favor the ICC trials, compared to 73 percent last year. [iii] In Central Province, home to many of the Kikuyu who have generally rallied behind Uhuru Kenyatta, ICC support now hovers around 37 percent, down from 61 percent earlier last year.
The precipitous decline in approval of the ICC process may also derive from the ways in which the Ocampo Six have branded themselves vis-í -vis the prosecutor. The indicted men have not only hired a London-based PR firm to mend their bruised public personas; more broadly, they’ve attempted to couch the investigations as “Ocampo vs. the Kenyan state.” Tens of MPs attended the last ICC appearances in April””all sporting baseball caps bearing the red, green, black, and white of the Kenyan flag. The attempts to link the Ocampo Six with Kenya writ large do not end with coordinated attire at The Hague, either. Last May, Vice President Kalonzo Musyoka‘s “shuttle diplomacy” was a blatant attempt to delay the proceedings using formal, inter-state diplomatic channels. When Musyoka travelled to the United States and the UN Security Council to delay the trials, he did it on behalf of Kenya.[iv]
With dwindling popularity and a growing sense of “Ocampo vs. Kenya,” pressure has mounted on the prosecutor””and it should. Of the six active “situations” under review at The Hague, the Kenyan proceedings are the first in which Moreno-Ocampo has invoked a clause in Article 13 the Rome Statute that allows him to refer the cases proprio motu. (In the five other situations, the UN Security Council or a signatory state to the Rome Statute has referred the case to the Court.)
Just as Moreno-Ocampo started the investigations, he also has followed up in person to underscore his commitment to the cases. He arrived in November 2009 to announce the commencement of the ICC’s involvement; returned to Nairobi in May 2010 to conduct investigations during a five-day tour; and appeared in December 2010 prior to announcing the much-anticipated indictments of the Ocampo Six, which he doled out evenly among ODM and PNU. Moreno-Ocampo has not merely attended behind-closed-doors meetings at the State House; rather, he has made a point during his trips to focus on victims of the violence. In December 2010, he attended the second National Dialogue and Reconciliation Conference coordinated by Kofi Annan. During his visit last May, Moreno-Ocampo also spent time in Mathare, where he heard insights from those who experienced the post-election violence firsthand and met with local NGOs operating in the area.
Nonetheless, two challenges face the prosecutor and, by extension, the Court. First, given the debate about the evidence in the Kenyan cases, there is a paucity of coverage regarding one indisputable fact: in 2012, Luis Moreno-Ocampo will retire. The Assembly of State Parties will convene to select a new prosecutor later this year. However, it’s unclear whether the new appointee will be able to continue the Kenyan investigations with the same conviction and rigor as Moreno-Ocampo. Similarly, if the evidence presented at the confirmation hearings does not warrant full-fledged trials, the next prosecutor will have a difficult time resuming indictments and following other avenues to try suspects. Second, reports indicate that specific Mungiki attacks during the post-election violence may have been planned at the State House.[v] If true, Kibaki may be called to testify; Raila Odinga may also have to appear. Their testimonies will engender broader speculation about the necessary scope of any ICC prosecutions. Put simply, were the indictments far reaching enough? It remains to be seen how the new prosecutor will handle the thorniest issues surrounding Kenya’s current and perhaps future investigations.
Kenya’s ICC confirmation hearings represent a test not merely for the country’s political leaders but””perhaps more importantly””for the Court and its soon-to-depart prosecutor. Expeditious proceedings and, if the evidence warrants it, fair trials will prove that the Court can answer lingering existential questions about its ability to mitigate future African conflicts. More importantly, successful investigations, which will likely involve the United States’ continued pressure on Nairobi, will bring much-needed justice to Kenya’s notorious impunity and ensure that its leaders comply with the Court’s decisions. That way, even when Ocampo departs, his can be sure his “six” will not.
[i] See recent African Union comments, “African Union Accuses ICC Prosecutor of Bias” Reuters, 30 January 2011. Available at: http://af.reuters.com/article/topNews/idAFJOE70T01R20110130?pageNumber=2&virtualBrandChannel=0.
[iii] See various recent treatments of conflict in the Rift Valley during the 2007-8 violence: Lynch, Gabrielle. “Courting the Kalenjin: The Failure of Dynasticism and the Strength of the ODM Wave in Kenya’s Rift Valley Province.” African Affairs 107, no. 429
(2008): 541-568. Lonsdale, John. “Soil, Work, Civilization, and Citizenship in Kenya.” Journal of Eastern African Studies 2, no. 2
(2008):305-314. Rutton, Marcel and Sam Owour. “Weapons of Mass Destruction: Land, Ethnicity, the 2007 Elections in Kenya.”
Journal of Contemporary African Studies 27, no. 3 (2009): 305-324. Anderson, David and Emma Lochery. “Violence and Exodus in
Kenya’s Rift Valley: Predictable and Preventable?.” Journal of Eastern African Studies 2, no. 2 (2008): 328-343.