NAIROBI, Kenya – In the aftermath of Kenya's disputed election, a mob set fire to a church where hundreds were taking refuge. Stone-throwing gangs wielding machetes killed scores of people, and police fatally shot protesters.
Three years later, the International Criminal Court prosecutor wants to try six prominent Kenyans for their roles in inciting that violence. But now Kenya is lobbying other African countries to support a proposal to defer the cases, saying the trials could threaten attempts to reconcile the country.
Several opinion polls conducted in the past year show broad public support for the ICC process, though, and critics warn such a delay would prevent justice for the more than 1,000 people killed during weeks of rioting and ethnic clashes.
"The political elite is working not so much in the interest of justice for victims of postelection violence as in the interest of trying to shield those who bear the greatest responsibility that have been named by the ICC," said Njonjo Mue, the head of the Kenya office of the International Center for Transitional Justice.
The ensuing violence after the disputed December 2007 presidential election exposed deep divisions over land and economic inequality, and marked the country's darkest time since independence from Britain in 1963.
A power-sharing agreement was later reached that allowed Mwai Kibaki to retain the presidency and made his election rival, Raila Odinga, prime minister. As part of that agreement, Kenya held a referendum and approved a new constitution last year.
Now Kenyan authorities say with those changes that the country might be able — and better suited — to try the suspects implicated by the ICC rather than having them go before an international criminal tribunal. Last month, legislators went so far as to call for the Kenyan government to withdraw from the ICC altogether.
Fadi El Abdallah of ICC declined to comment on the lobbying effort by Kenyan leaders, but some Kenyans fear the government's latest moves are a sign the suspects won't ever face trial. On Tuesday, dozens of protesters gathered in Nairobi to criticize the parliament's actions.
"It just looks suspiciously like an argument to try to protect people from justice and prevent the truth coming out," Ngwatilo Mawiyoo said of the legislators' nonbinding resolution to leave the ICC.
ICC Prosecutor Luis Moreno Ocampo has said that a deputy prime minister, the secretary to the Cabinet, two former Cabinet ministers, a former police chief and a prominent journalist bear the greatest responsibility for the December 2007-February 2008 violence.
Moreno Ocampo wants the ICC to charge the six with crimes against humanity including murder, rape and torture. But he has asked judges to issue summons to the six men, rather than arrest warrants. All six have said they will comply with summons. Judges are studying his evidence and are expected to make their decision in the coming months.
The ICC, established in 2002, is the world's first permanent war crimes tribunal. However, it has no police force and depends on member states to enforce its orders. In recent months, Kenya has given mixed signals about its support for the ICC despite being a member.
The country was heavily criticized, for example, when it invited Sudanese President Omar al-Bashir in August to witness the signing of Kenya's new constitution. As a member state, Kenya should have arrested al-Bashir, who the ICC has accused of genocide and crimes against humanity in Darfur. A month later, the government did allow the ICC to open an office in Kenya.
Kenyan Vice President Kalonzo Musyoka told The Associated Press the country is still committed to cooperating with the ICC and denied that Kenya's efforts to seek a deferral is a way of blocking the cases.
Still, the vice president issued a veiled criticism of the ICC prosecutor, saying: "One gets the feeling that there could also be political considerations and if that is the case, as a lawyer, I will have my own objections."Musyoka is leading a high-level lobbying mission to key African nations to get them to support Kenya's deferral proposal. Kenya hopes the mission will see the 53-member African Union favorably consider its plan when African leaders meet for a regular summit on Jan. 30.
And if the African Union supports Kenya then the AU may lobby the U.N. Security Council, which is the only body under international law that can request the ICC to defer a case it is investigating or trying. The council can delay a case for 12 months, and then could renew the deferral after a year.
Musyoka has been to South Africa, which is one of three African countries currently sitting on the Security Council. The other two are Gabon and Nigeria, which Musyoka says he plans to visit as well. Two Cabinet ministers have also been assigned to lobby six other African countries.
But even if Kenya succeeded in getting African support for a deferral, it appears unlikely the council would take such an action. To date, it has only received one request for a deferral in the al-Bashir case, and it was dropped when Sudan concluded the council would not pass the proposal. That request was made by the African Union and the Arab League.
"Now if the AU was not able to make that case with regard to the Bashir case, and the Darfur case being much more volatile than what we have in Kenya, I think it is unlikely that the case will be made with regard to Kenya," said Mue, the head of the Kenya office of the International Center for Transitional Justice.
While Kenyan leaders are saying they could try the suspects at home, critics point to the lack of progress made on the issue so far.
Kenya committed itself to setting up a credible and independent local tribunal to try suspected perpetrators but in February 2009 parliament voted against a constitutional amendment that would have formed such a court. Later in 2009, a similar amendment was proposed but parliament is yet to conclude debate on it.
Emotions remain raw over the lack of closure after the postelection violence, and some say the future of the ICC cases shouldn't be decided alone by lawmakers or politicians.
"This thing (the violence) did not just affect them. It affected all of us. Our voices need to be heard," said Nairobi resident Waithera Wambara.
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Associated Press writer Mike Corder in The Hague, The Netherlands contributed to this report.
