Kenya on tenterhooks as D-day draws nigh

By GAKUU MATHENGE
The moment of truth for Kenya is nine days away, and the country is on nervous tenterhooks.
The political class is on panic mode as International Criminal Court (ICC) Chief Prosecutor Luis Moreno-Ocampo promised to indict leading masterminds of post-election violence, and who are suspected to be leading political players and tribal chieftains who command considerable clout.
The Chief Prosecutor said last week he would be moving against the suspects by December 17.
Lawyers, too, are sharpening their legal knives to demolish the Ocampo case and retrieve their clients from the jaws of political destruction and economic ruin.
But both Ocampo and the ICC are also on trial in Kenya, as either victory or defeat in the Kenya case has far-reaching implications on Ocampo and the ICC’s credibility.
Kenya’s case is critical for the ICC and Ocampo for two reasons:
First, his eight-year term comes to an end in March 2011, and Kenya’s case may just earn him an extension (ICC chief prosecutors are hired for one eight-year non-renewable term).
Second, Kenya’s case is the first one initiated by the prosecutor himself, and therefore his credibility — and the ICC’s — is on the line depending on the way it goes.
The indictments will end the million dollar question and speculation as to who ICC investigators hope to pin responsibility on for the 2007/2008 post-election violence that left more than 1,300 Kenyans dead, hundreds of thousands others displaced and billions of shillings worth of property destroyed.
So far, only suspended Higher Education Minister William Ruto has been bold enough to go public about having been contacted by the ICC over the prosecutor’s investigation.
Five other alleged suspects are not yet known, but their identities will become public once the indictments are issued.
The list of witnesses is also not known and the ICC has tucked them away in safe houses in different countries until they are called to testify.
Speculation is rife on who could be on Ocampo’s list but he has kept it so secret that not even President Kibaki or Prime Minister Raila Odinga knows the targets.
Targets of probe
Neither do they have any say or influence on the matter.
"They may be President and Prime Minister of the Republic of Kenya, but this is one matter in which they are also spectators like the rest of us, and they can do nothing about it," a source told The Standard.
It should make the Principals particularly nervous because the ICC has repeatedly insisted that the targets of investigation are "those who bear the greatest responsibility", implying that if the principals themselves are not fingered, actors close to them would be.
Some experts think the reason Ocampo has constantly insisted on publicly engaging Kenyans "is to counsel them in advance, and socialise them to possible shock and trauma once indictments are made".
"Kenyans should also recall Ocampo is prosecutor, not a lawyer. A prosecutor is always your friend until you see the charge sheet. President Omar el Bashir of the Sudan had dinner with Ocampo in Khartoum only six hours before the indictment against him was made public in July 2008. I would understand if people are nervous," said Nairobi lawyer Kamotho Waiganjo.
The behaviour of a section of politicians has also betrayed panic and jarred nerves, some warning that they would frustrate ICC activities in Kenya if PM Raila was not among those indicted.
A group of 16 MP allied to Deputy Prime Minister Uhuru Kenyatta and Ruto claimed the ICC probe was aimed at fixing some leaders.
After Ocampo delivered his last speech to Kenyans giving hints of what his final submissions to the three-bench judge will be, Ruto listened pensively and emerged from the session to declare that Ocampo’s move was doomed as he might not have sufficient evidence to convict the six Kenyans he was targeting.
"If Ocampo is using witnesses identified by his hatchet man Hassan Omar of the Kenya Human Rights Commission, then they are going nowhere. All those witnesses were coached to fix some Kenyans, me included," declared an angry Ruto.
Prime Minister Raila Odinga told Ocampo to his face before he left that he must also bear in mind that a bungled election sparked off the violence.
"As you seek justice for the victims, also don’t lose focus as to what caused the chaos. It was the stolen election," said the PM.
But even as Ocampo readies himself for a battle with the Kenyan top six, a huge setback awaits the ICC any time this week if a Motion to be tabled by Chepalungu MP Isaac Ruto seeking to withdraw Kenya from the court goes through.
Yesterday Ruto and his Cherangany counterpart Joshua Kuttuny confirmed that intense lobbying was ongoing to have a simple majority pass the Motion that in effect will bring to an end any formal dealings between Kenya and the ICC.
Dirty tricks
"We are determined to stop Ocampo and his dirty tricks on Kenya. We want to retain our sovereignty as a country. We are set to reject the ICC as did the US and the United Kingdom," said Ruto.
Legal scholar and lawyer, Mr Kindiki Kithure, says Ocampo should not worry Kenyans as he was yet to win a conviction at the ICC.
Dr Kithure, who is also lawyer for the Eldoret North MP, said Kenya was also important to the Chief Prosecutor after losing an application to indict DR Congo’s Thomas Lubanga over failure to disclose exonerating evidence relating to the Great Lakes leader.
"Article 54 of the Rome Statute obliges the Persecutor to investigate both incriminating and exonerating evidence equally. In Lubanga’s case, the court said had he disclosed exonerating evidence, there would not have been justification for arrest warrants. In Kenya’s case, I have not seen him make as rigorous efforts in contacting and working with suspects like he does with accusers," said Dr Kindiki.
Meanwhile, the discomfort expressed by politicians unhappy with the ICC’s work should be a warning to Government over potential fallouts once the ICC acts.
Leaders and experts said the Government should not be caught flat-footed. "It is simplistic and naÔve to ignore these signals of mobilisations and targeting of individuals and groups perceived to be supporting the ICC process," said Nairobi lawyer Harun Ndubi.
Threats of violence
Safina leader and former Kabete MP Paul Muite said Kenyans should not be intimidated by threats of violence, or give in to bullying.
"Otherwise we will be surrendering our future and the future of the country to warlords, which is more dangerous. But the security agencies should be on the look-out and deploy to potential hotspots in the lead up to the indictments and after," said Mr Muite.
—Additional reporting by Beauttah Omanga