On 23 January 2012, the fate of the six Kenyans accused by the International Criminal Court (ICC)'s Office of the Prosecutor (OTP) of committing crimes against humanity was made known by the ICC's Pre-Trial Chamber II (PTC II). Four of the six will be proceeding to trial in April 2013 in two cases. The defence teams for all four accused requested leave to appeal from the PTC II on 30 January 2012. Leave was granted but their appeals were denied on 25 May 2012.
The PTC II's confirmation of the charges against the four accused is particularly significant in that it represents the first ICC cases that will proceed to trial as a direct result of the OTP's exercise of its own mandate - rather than on the basis of a state referral or a UN Security Council resolution as has previously been the case.
Three scenarios pertained in advance of the PTC II's decisions: The PTC II could have confirmed all charges against all six persons in the two cases. It could have confirmed some of the charges against some but not all of the six persons in either or both of the two cases. Or it could have nullified all charges against all six persons.
In view of the continuing political mobilisation of ethnicity in Kenyan politics, and the potential that this has to influence understanding of and attitudes towards the ICC process in Kenya, each possible scenario would have had a distinct impact on Kenya's prospects as it moves towards its first general elections under its new Constitution. Given that the second scenario prevailed, and that charges were ultimately confirmed against presidential hopefuls of majority ethnic communities - one Kalenjin and one Gikuyu - the potential impact of these ICC proceedings on the political mobilisation of ethnicity should be closely followed.
Kenya's new Constitution was promulgated in August 2010 after almost two decades of demands for constitutional change. These demands gained new impetus as a result of the Kenya National Dialogue and Reconciliation (KNDR), the African Union (AU)-based mediation process which ended the violence that followed the 2007 general elections. It is the KNDR that also - eventually and indirectly - resulted in the cases being brought before the ICC. Beyond creating the Grand Coalition Government, the KNDR aimed to address both the causes and consequences of the flawed presidential elections as well as the violence that followed.
With that in mind - and in the context of the other legal, policy and institutional reforms either set in motion or ushered in by the KNDR to lessen the intensity of competition for the presidency, and increase accountability for the political mobilisation of ethnicity in that competition and thus reduce elections-related violence - it is useful to assess what the impact of the ICC has been in Kenya as well as what Kenya's prospects are moving forward. In assessing the ICC's impact, two aspects will be considered: complementarity (that is, the effect of the ICC on accountability in Kenya by advancing reforms throughout the criminal justice system); and deterrence (that is, the effect of the ICC on ensuring that violence of the nature experienced in 2007-8 does not re-occur). Given that deterrence is not only linked to retributive justice assured by legal accountability, but also to diverse factors that address not just the consequences but the causes of violence, the background to the 2007-8 violence is also examined. This reveals that while the elections were the catalyst for the violence, the attacks were fuelled by deeper, historical and material causes. In addition, the ICC is situated as just one indirect outcome of the KNDR agreements, which means that deterrence would depend not just on the ICC fulfilling one of its intended functions, but on full realisation of the other KNDR agreements.
The paper ends with a number of conclusions and recommendations aimed at mitigating risks associated with the scenario presented by the PTC II's decisions as well as to assist not just the ICC's retributive justice work in Kenya, but also other possible options for retributive and restorative justice.