Kenya and justice

As complicated as politics may be in Kenya, it does have its lighter moments. Kenyans are never at a loss for an apt turn of phrase. "Don't be vague, go to Hague" sprang from the lips of Uhuru Kenyatta, a strong contender for the presidency and son of the country's founding father Jomo Kenyatta, four years ago.

But the wheels of justice have turned in the meantime and the irony is that Kenyatta himself faces charges at the International Criminal Court in the well-known Dutch city.

Prosecutors allege that together with the head of the civil service, Francis Muthaura, he incited militia belonging to the Kikuyu, Kenya's largest ethnic group, to mount violent attacks on the opposition.

Former agriculture minister William Ruto and and radio presenter Joshua Arap Sang will also be in the dock. They are accused of having planned Kalenjin militia attacks on the Kikuyu.

Moving responsibility elsewhere

Kenyatta and a majority of parliamentarians did not seek to shift responsibility for investigations into Kenya's post-election violence to The Hague because they were prepared to account for their actions. They believed the International Criminal Court would take decades to prepare a case against defendants who allegedly masterminded the violence. In the meantime, they would be able to stay in power. There would never be any awkward court trials in Kenya itself.

They miscalculated badly. The ICC worked faster than expected and the trial will begin in April. It is possible that it will open on the very same day as a presidential run-off in Kenya, which many believe will be necessary after a first round of voting.

"Guilty until wealth is proven"

The action taken by the ICC is seen by human rights activists as a glimmer of hope for their country or "a God-sent opportunity." Those were the words of rights campaigner Joseph Omondi, who lives in Nakuru, some 150 kilometres northwest of the capital Nairobi.

The town was one of the epicenters of the post-election violence five years ago and Omondi was there in person. In Nakuru, as elsewhere in Kenya, the culprits have yet to face criminal proceedings. "Five thousand cases of post-election violence and nothing has been done," says Omondi. Kenyans have a turn of phrase for this perceived culture of impunity "You are guilty until proven rich."

The belief that if you are rich enough, or have influential friends, you can buy yourself out of a criminal trial has taken root during the elections and violence of the last 20 years.

The fact that politicians are being called to account for the first time in The Hague is a consequence of the UN-mediated peace process which was initiated after the unrest in 2007/2008.

As part of that process, a commission broadly established who was responsible for inciting the post-election violence. But a parliamentary veto followed and the Kenyan government refused to set up its own tribunal, so mediator Kofi Annan handed over a list of suspects to the ICC. 70 percent of Kenyans supported this move.

Awakening the dragon of Kenya's ethnicity

The price of justice could be high. Many fear that the trial will inflame ethnic conflicts still further.

Kenyatta and Ruto, defendants in court and former rivals, have long since sealed a pact. They are running on the same ticket in the presidential race and their supporters are being effectively asked to decide whom they trust the most – their own political leaders or a court in Europe!

Samuel Tororei is a political scientist and former member of the Kenyan Human Rights Commission. He says this vote-catching ploy by Kenyatta and Ruto could work because Kenyans' understanding of the law differs from that of the International Criminal Court.

"This country has yet to digest the fact that somebody can be called to account for something he did not carry out personally. People are still asking, did he actually burn down any houses, pick up a machete or kill anyone," Tororei said.

Kenyatta and Ruto insist they are innocent and accuse Prime Minister Raila Odinga of being behind the ICC's decision to prosecute them. Odinga is running for president again.

Five years ago he had a good chance of winning and cried foul as he lost to Kikuyu candidate Mwai Kibaki by a narrow margin. In the first few weeks after the election, opposition supporters murdered many Kikuyu, raped them or drove them from their homes. In a second wave of violence, a month after the election, Luo, Kalenjin and other ethnic groups from the alliance of opposition parties were the target of revenge attacks.

Personal cost of ethnic strife

Robert Opiyo from Nakuru remembers the outpouring of hate against the Luo all too well. He was on his way into town to buy food for his children. "A group of youths started following me. I ran, they ran after me. After they caught me, they beat me up and then circumcised me!"

The Luo are the only tribe in Kenya in which the men are not circumcised by custom. "I do not know how I managed to make it to the hospital," he said, recalling the trauma and physical injury. After fleeing to a camp for displaced persons, Opiyo, an engineer by training, acquired a house some years later and a plot of land which he farms.

He believes the charges filed in The Hague are a small step for justice. Nevertheless, he does not feel safe wedged between Kikuyu and Kalenjin neighbors and as a precaution has moved his family to relatives in a predominantly Luo area.

Many Kenyans have taken similar measures, whatever their ethnicity. Fear of unexpected attacks by agitated neighbors of a different ethnic group after the elections has prompted them to move to more secure premises. Obsevers are worried about the economic consequences of any possible fresh unrest. In 2008, tourism and other sectors suffered as investors took fright.

What if...?

The big question is what will happen if Kenyatta and Ruto (the pair are now referred to as Uhuruto) should win the election. Kenyatta does not believe there is a problem. Kenya is not a banana republic, he said in a recent interview. If he, as president, has to appear in court in the Netherlands, then the country's strong institutions would provide the necessary political stability. His opponents, however, suspect that if elected he would studiously avoid going to The Hague, like Sudan's President al-Bashir. Kenya could then feel the full wrath of international sanctions.