Although the mayhem following the disputed December 2007 elections seemed an exception, violence has been a com­mon feature of Kenya’s politics since the introduction of a multiparty system in 1991. Yet, the number of people killed and displaced following that disputed vote was unprecedented. To provide justice to the victims, combat pervasive political impunity and deter future violence, the International Criminal Court (ICC) brought two cases against six suspects who allegedly bore the greatest responsibility for the post-election violence. These cases have enormous political consequences for both the 2012 elections and the country’s stability. During the course of the year, rulings and procedures will inevitably either lower or increase com­munal tensions. If the ICC process is to contribute to the deterrence of future political violence in Kenya, the court and its friends must explain its work and limitations better to the public. Furthermore, Kenya’s government must complement that ICC process with a national process aimed at countering impunity and punishing ethnic hate speech and violence.

In the past, elites have orchestrated violence to stop political rallies, prevent opponent’s supporters from voting, and – as in the 2007-2008 events – intimidate rivals. In the aftermath of the crisis, a Commission of Inquiry into Post-Election Violence (CIPEV), chaired by Kenya Court of Appeal Judge Philip Waki, was established to investigate the facts and circumstances of the election violence. Among its major recommendations was creation of a Ken­yan special tribunal to try the accused organisers. Mindful of the history of political impunity, it recommended that if the government failed to establish the tribunal, the Panel of Eminent African Personalities that under Kofi Annan’s chairmanship mediated the political crisis should hand over a sealed envelope containing the names of those who allegedly bore the greatest responsibility for the violence to the ICC for investigation and prosecution. President Mwai Kibaki and Prime Minister Raila Odinga signed an agree­ment for implementation of CIPEV’s recommendations on 16 December 2008, and parliament adopted its report on 27 January 2009.

A bill to establish a special tribunal was introduced twice in parliament but on both occasions failed to pass. Not even last-minute lobbying by the president and prime minister convinced parliamentarians. Annan consequently transmitted the sealed envelope and the evidence gathered by Waki to the ICC chief prosecutor, Luis Moreno-Ocampo, on 9 July 2009. Four months later, on 5 November 2009, the pro­secutor announced he intended to request authorisation to proceed with an investigation to determine who bore greatest responsibility for crimes committed during the post-election violence.

When Moreno-Ocampo announced, on 15 December 2010, the names of the six suspects, many of the legislators who had opposed the tribunal bill accused the court of selective justice. It appears many had voted against a Kenyan tribunal on the assumption the process in The Hague would be longer and more drawn out, enabling the suspects with presidential ambitions to participate in the 2012 election. To many Kenyans, however, the ICC’s involvement sends a signal that entrenched impunity for wealthy and powerful politicians will not be permitted to endure. If national courts are unable or unwilling to prosecute perpetrators of gross electoral violence, the international court can. For a political class used to impunity, this is a likely game changer for how politics are conducted in the country.

The 2012 presidential and legislative elections will play out against the backdrop of a significant ICC role that Kenyan politicians will be unable to influence. Other factors also will come into play. The incumbent president, Mwai Kibaki, will not run. The constitution promulgated on 27 August 2010 has created powerful new positions, including that of an independent chief justice, and raised the bar for presidential aspirants. A successful candidate must obtain an absolute majority of votes as well as more than a quarter of the votes in at least 24 of the 47 counties. Political jockeying and alliance formation have already begun in earnest, in part as a response to the ICC proceedings.

The two most prominent suspects, Uhuru Kenyatta (the deputy prime minister, finance minister and son of Kenya’s first president) and William Ruto (the former agriculture and higher education minister), as well as the vice president and many other like-minded politicians, are exploring the possibility of uniting behind one candidate. The ICC is expected to announce in late January 2012 wheth­er it has confirmed charges against each of the six suspects and will proceed to trials. The court’s rulings will introduce an additional – possibly crucial – factor into an already pivotal election.

If the court confirms charges for both cases on the same day, this could be a crucial step to help defuse a rise in ethnic tensions. There are real fears that if charges are dropped for suspects of one ethnicity and confirmed for those of another, ethnic tensions could increase sharply, regardless of the legal merits. The ICC’s decisions will con­tinue to play a pivotal role in Kenya’s political process, especially in the crucial 2012 election. The court appears cognisant that these will not be viewed by many Kenyans simply as legal decisions and that the timing and framing of proceedings and rulings will inevitably have an impact in heightening or tamping down tensions. Accordingly:

• The International Criminal Court should recognise that public statements warning suspects and other politicians not to politicise the judicial proceedings, such as Judge Ekaterina Trendafilova’s on 5 October 2011 noting that continued hate speech would be considered in the pre-trial deliberations, can dampen and deter aggressive ethnic and political rhetoric.
   
• While the ICC is still popular, the Kenyan public’s approval of its role has been declining, due to deft media engagement by the suspects. In order to counter misconceptions of the court’s decisions, the court and its supporters, including civil society and other friends, should intensify public information and outreach efforts to explain its mandate, workings and process.
   
• The Kenyan government must recognise that the fight against political violence and impunity is its responsibility. It needs to close the impunity gap by complementing the ICC process with a parallel national process. It should begin by directing the attorney general to investigate other individuals suspected of involvement in the violence that followed the 2007 elections with a view to carrying out prosecutions in the domestic courts.

The government should also support Willy Mutunga, the new chief justice, in his efforts to reform the judiciary and restore public faith in Kenya’s system.

Nairobi/Brussels, 9 January 2012