The ICC takes aim at Kenyan graft

Posted on October 5, 2011


Last Wednesday, I went out for some drinks with my new housemate for my first Kenyan social occasion. The local bar we went to was much like many I have visited in both South America and Asia over the last few months, with a television turned up loud and customers glued to the set.

The difference here in Kenya is that, at least for the next few months, they are not watching the poor quality soaps that so entertained elsewhere. For the time being, any Kenyan with an interest in the future direction of their country is watching broadcasts from the International Criminal Court (ICC) at The Hague, where some of the country’s most prominent politicians are testifying before confirmation hearings to decide whether they should face trial for crimes against humanity.

The case in question dates back to the violence that followed the disputed election in 2007, when President Mwai Kibaki managed to hold on to power in spite of the handling of the election being criticised by the opposition, Raila Odinga’s ODM, and various independent observers. 1100 were reported to have died and 630,000 more displaced in the ethnic violence that resulted from the results, and Kenya was briefly on the verge of civil war. A power-sharing deal was eventually agreed after prolonged international pressure, but ongoing problems remained and the issue is now back on the agenda as a result of the ICC hearings.

Kenyatta: the son of Kenya's fabled founder stands accused

The case has taken a while to come to court. The Kenyan government lost an application challenging the admissibility of the cases, and ultimately the case has come to trial on the international stage because of a failure on the part of the regime to properly investigate the violence and punish those responsible. Many have raised questions about the will of the government to find answers as to how the violence happened and avoid a repeat of the violence in next year’s presidential elections, yet this comes as no surprise to Kenyans and observers of Kenyan politics who are well used to corrupt politicians acting with impunity. In spite of protestations to the contrary, it must remain doubtful whether the government has the mechanisms in place to stop a repeat occurring next year.

The reason why ordinary Kenyans are taking such an interest in the proceedings, even at this early stage, is that it offers them a rare chance of seeing their politicians held to account, and possibly an opportunity to end the culture of graft and impunity that permeates their political elite. From the Goldenberg scandal under former president Daniel arap Moi to the Anglo Leasing affair more recently under Kibaki, presidents and ministers have been able to escape punishment while robbing the country of vast amounts of money. Kibaki, who was first elected on an anti-corruption platform in 2002, has proven to be no better than his predecessors, even prompting former anti-corruption chief John Githongo to resign and expose corruption within the government. Regardless of this, Kibaki and the ministers involved escaped punishment, and ongoing campaigns to force the regime to face up to corruption have been unsuccessful. Hence why, although three Odinga supporters are waiting to hear whether they will face trial for their alleged parts in the violence, it is the three men on the government side in the dock that are catching the main attention of the Kenyan public.

The court has heard from prosecutors that Deputy Prime Minister Uhuru Kenyatta, head of civil service Francis Muthaura and ex-police chief Hussein Ali created a plan that would keep Kibaki’s PNU in power by any means. They each face five counts of crimes against humanity over allegations that they paired the Mungiki, an outlawed organisation inspired by the Mau Mau independence fighters, with the police in order to unleash swathes of violence against supporters of Odinga’s ODM. Of course they deny it, with Kenyatta, who hopes to stand in next year’s elections and thus has the most to lose if the case does go to trail, politicising the trial by declaring himself a “peacemaker” and suggesting that Odinga, who is not accused, bore “political responsibility” for the violence.

The hope of ordinary Kenyans is that, by holding these politicians to account, the ICC can break the country’s culture of impunity and smooth the way towards a more accountable system of government, where those that commit crimes are punished at a local level without the need for international courts. But there is reason to be wary over the chances of these confirmation hearings leading to a trial. The ICC has been criticised when it comes to bringing cases before court, and indeed since its inauguration in 2002 only six cases have been opened, all in Africa, with no convictions as yet won. Chief Prosecutor Luis Moreno-Ocampo has been called upon by Human Rights Watch to close gaps in investigations and open more cases, and thus is under pressure to secure convictions this time around. This case has been dragging on for many months, with many more still to come, and it has not yet even been decided if there is sufficient evidence for the case to go to trial. If this is a message that Kenya’s political elite must change their ways, then it is a slow-burning one.

Lessons like these are hard learnt for those at the top of Kenyan politics. Politicians accused over the Goldenberg and Anglo Leasing scandals found it far too easy to keep or return to government positions. As recently as last month, Kibaki and Odinga came under fire in parliament for protecting individuals implicated in alleged corruption. Kibaki certainly has a track record when it comes to this, but Odinga’s avoidance of making a statement on the reappointment of ministers being investigated over the questionable purchase of the Kenyan embassy in Japan raises questions as to his own intentions towards stopping corruption. Though judicial reform appears to be happening, and a Witness Protection Agency has been established, Kenya has seen anti-corruption measures before under Kibaki with no visible effects. The hope that many will hold is that, with Kenya’s political elite still unable or unwilling to hold itself to account, the ICC can go one better in teaching the lesson that corruption and ethnically-motivated violence will not be allowed to continue. It is not a war that will be won with just one battle, however, with a study indicating that “continuation of the politics of the old guard” is likely after next year’s elections. With supporters of both sides accused of crimes against humanity, and the famous politica names of Kenyatta and Odinga likely to be involved in election campaigns in 2012, it remains to be seen whether the ICC can at least take a powerful swipe at the culture of corruption in Kenya. In the short term at least, the most Kenyans can hope for with regard to next year is that the elections are handled correctly and that any handover is achieved peacefully, as in nearby Rwanda recently.

Posted in: Issues, Politics