The International Criminal Court’s decision to investigate the 2007 post-poll violence in the Republic of Kenya marks the first instance where a case unrelated to conflicts among armed rebel groups and national governments will be heard at the world court. The case concerns a scramble for political dominance among the country’s pre-eminent tribal communities that is at odds with the democratic institutions and the rule of law. More than 1,100 people were reported to have been killed and thousands internally displaced in bloody ethnic clashes that broke out in the wake of the disputed Kenyan elections of 2007. The bloodbath was the handiwork of senior politicians with the connivance of the police, a judicial commission of enquiry concluded. ICC Prosecutor Luis Moreno-Ocampohas argued that there was a reasonable basis to believe that the incidents amounted to crimes against humanity which fell within the court’s jurisdiction under the Statute of Rome. With over 40 per cent of Members of Parliament occupying positions in the government, the current coalition, which is an outcome of the peace deal brokered by the former United Nations Secretary General Kofi Annan, echoes the scramble for power between President Mwai Kibaki’s Party of National Unity and Prime Minister Raila Odinga’s Orange Democratic Movement of the opposition. The coalition’s failure to meet internationally stipulated deadlines to set up a tribunal to investigate the atrocities reflects the obstacles encountered within the establishment to bringing the perpetrators to justice.
The mandate of the ICC extends to ending impunity for war crimes, genocide, and crimes against humanity when national mechanisms have either been exhausted or proved ineffective in rendering justice. These objectives represent the aspiration of the global community to bring about greater judicial accountability at the national level as well as to infuse hope where internal options have been undermined. However, serious issues of encroachment on national sovereignty and double standards remain. The attempts to resolve Africa’s protracted conflicts in the international arena have often met with scepticism, given the danger of potential retribution against witnesses and the victims of crimes. But it is by no means a problem for Africa alone. The United States and India have not reviewed their decision to keep out of the jurisdiction of the Hague court either, notwithstanding their professed commitment to the values of democratic pluralism and human rights. Without their entry, the court will continue to lack political weight and authority.