afrol News, 31 March - Could a decision by judges of the International Criminal Court (ICC) on Kenya's post-election violence mean the end to the already shaky unity government?
This has been a reaction from most political analysts following the granting of authorisation to ICC's Chief prosecutor to investigate and probably prosecute perpetrators of the post-election violence that engulfed Kenya two years ago, leaving over 1000 people dead and hundreds of thousands displaced.
The decision comes following several failed attempts by the state authority to institute local tribunal into the alleged crimes against humanity. The ICC prosecutor, Luis Moreno-Ocampo has already handed over a list of 20 prominent personalities in Kenya's politics and socialites said to be the most responsible in the violence.
Last November, Mr Moreno-Ocampo sought authorisation to open an investigation into the violence after the disputed December 2007 polls in which President Mwai Kibaki was declared winner over opposition leader Raila Odinga, who is now Prime Minister. Earlier this month in a sealed list to the ICC he named the 20 people.
"The information available provides a reasonable basis to believe that crimes against humanity have been committed on Kenyan territory," the ICC's Pre-Trial Chamber II found in a majority decision of two to one issued in The Hague, where the court is based. "The majority moreover found that all criteria for the exercise of the Court's jurisdiction were satisfied, to the standard of proof applicable at this stage."
Judge Hans-Peter Kaul, dissenting, held that the crimes in Kenya do not qualify as crimes against humanity under the jurisdictional ambit of the Rome Statute, which established the court, and which Kenya ratified in 2005.
He concluded that there was no reasonable basis to believe that the crimes in Kenya were committed in an attack against a civilian population pursuant to or in furtherance of a policy stemming from a State or an organisation, which he said was required by Article 7 of the Statute.
But, the majority decision by Judges Ekaterina Trendafilova and Cuno Tarfusser cited the low threshold applicable at this stage of the proceedings.
When he sought the authorisation, Mr Moreno-Ocampo said Mr Kibaki and Mr Odinga, who agreed to serve in a power-sharing administration following the violence, had promised to cooperate with any investigation. "There is a reasonable basis to believe that the attacks against Kenyan civilians during the post-election violence constitute crimes against humanity under the ICC's jurisdiction," he said then.
The question now is, what happens if either of the political leaders is named, or their top allies? And, without much scrambling, many political views are that this could mean the dead end for the unity government's journey to democracy.
For some, the collapse of the 2008 political setup could actually elongate transitionally in Kenya's democratisation by having to setup yet another interim structure while seeking ways manoeuvre to fresh elections. This view, also holds that by so doing, the situation would perpetuate the rule by false democracy in Kenya and thereby denying Kenyan the true taste and experience of democratic governance.
The Kenyan truce model was actually a litmus test for Africa and attempts to replicate it in other African states did not reap much of the results. For instance Zimbabwe's power-sharing deal in last February, was just a non-starter and continues to cause more headaches for the regional Southern African Development Community bloc in as much as it does for the African Union and the rest of the world.
Trials in Madagascar were even rougher, with the rest of the African hot-spots opting for quicker and short-cut interim structures towards a resolute election date.
While flags will be upped and downed on either of the Kenyan sides of the 2007 post-election violence, what remains is the need for the attainment of justice, to the victims, the systems and for the perpetrators to be brought to book, as an international lesson to all those across Africa and the rest of the world to follow their actions and take responsibility. But, in the name of democracy, is this the way...?
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