Kenya Waits for Next Move from the Hague

A Kikuyu man is attacked by rioters in the Mathare slum, Nairobi, Kenya, 20 Feb 2008

In Kenya, the divided government has abandoned efforts to form a special tribunal to try high level suspects implicated in the country's post-election violence, and many Kenyans are waiting to see how the chief prosecutor of the International Criminal Court in The Hague will respond.

Kenyan leaders decided this week to refer the cases of suspected instigators of last year's violence to a Truth, Justice and Reconciliation Committee, that was established to promote national healing. The government has offered vague promises that it will reform the committee's powers to fit its newly expanded role.

The International Criminal Court has said it would try the suspects, if Kenyan leaders failed to establish their own tribunal. Former United Nations chief Kofi Annan, who helped negotiate an end to the violence, recently turned over a list of key suspects to the International Criminal Court.

Kamodho Waiganjo, a law lecturer at Nairobi University, says that, in his view, the government's decision not to pursue a special court in Kenya was in effect a tacit message to The Hague that the International Criminal Court will have to handle the high level prosecutions.

"The proposals that the government presented to the ICC prosecutor was whether or not to have a local tribunal in the form of that [agreed upon] tribunal," he said. "So, the failure to agree to that was basically a surrender of the process to the ICC, without directly saying so."

International Criminal Court chief prosecutor Luis Moreno Ocampo gives a press conference in The Hague, Netherlands, 04 Mar 2009

ICC Prosecutor Luis Moreno Ocampo has the legal power to begin independent cases against Kenyan suspects at any moment.

Analyst Waiganjo says he thinks that the chief prosecutor will allow Kenya's leaders to buy some time as he waits to see what the new truth and justice committee will look like. However, the law professor says that, at this point, eventual ICC intervention appears inevitable.

"He already has enough problems with perception with problems in Sudan, so he doesn't want to be seen to be railroading African countries, especially where they feel they have a local solution," said Waiganjo. "So he's probably going to allow for time. But I don't think it's going to be a very long time, because he had already given timelines for September."

With the trial of former Liberian President Charles Taylor currently under way and with an arrest warrant outstanding for Sudan's sitting president, Ocampo has been criticized as unfairly targeting the continent.

The government decision not to establish a special court to try to try suspects in the election violence came after the third straight Cabinet meeting ended in deadlock over the proposed tribunal.