Ocampo leaves meeting empty-handed

Luis Moreno-Ocampo came away empty-handed after his meeting with President Kibaki and Prime Minister Raila Odinga on Thursday. That was the import of the brief statement issued on the steps of Nairobi's Harambee House by the International Criminal Court prosecutor and the two coalition government principals.

Mr Moreno-Ocampo had flown into the country specifically to secure a formal referral from the Kenya government so that the ICC can officially initiate investigations and pursue prosecution for key planners of the post-election violence.

By denying him the referral, President Kibaki and Prime Minister Odinga signalled that the government is not ready to cooperate fully with the ICC in investigations that could lead to the indictment and arrest of key Cabinet ministers for trial at The Hague or wherever else an international court may sit.

But on another tack, the lack of a referral gave Mr Moreno-Ocampo the green light to proceed on his own volition, while sparing the President and the Prime Minister the politically-sensitive responsibility of surrendering some of their key allies to the ICC cells where bail is usually not an option.

The statement, signed jointly by the President and the Prime Minister, repeated the rote pledge of willingness to cooperate with the ICC, but denial of the reference alone stands as a strong indication that that cooperation does not extend to giving the green light for Mr Moreno-Ocampo to move in on Kenya.

It may be an indication that ICC investigators who may seek to collect evidence and interview witnesses in Kenya will get less than full cooperation from the authorities; and that the government may not swiftly act on ICC arrest warrants.

Despite all the hype surrounding Mr Moreno-Ocampo’s visit, it probably should have been foreseen that at the end of the day, President Kibaki and Mr Odinga would not be prepared to take the political risk of being seen to have sacrificed some of their influential allies to the mercy of the international court.

As the day for Mr Moreno-Ocampo’s arrival drew nearer, a flurry of activities and consultations involving both the PNU and ODM wings of government indicated a growing sense of unease. Many powerful voices who initially were all for The Hague after efforts at a local special tribunal floundered, seemed to be getting cold feet.

Internal dynamics in both PNU and ODM indicated that powerful voices — notably allies of Deputy Prime Minister Uhuru Kenyatta and Agriculture minister William Ruto — openly against The Hague or any other retributive justice mechanism, were gaining ground.

In PNU, popular support in Parliament seemed to be in favour ICC arrests, but President Kibaki has been cautious, particularly over the threat of renewed violence in the Rift Valley if some key leaders from the region were indicted or arrested.

Voice for trials

Renewed hostilities would also complicate efforts to solve the issue of displaced people, thousands of whom have not been able to go back to their homes in the Rift Valley to date. Hence the tilt for healing and reconciliation rather than trials, the same argument used in July when the Cabinet rejected the revised Special Tribunal Bill pushed by Justice minister Mutula Kilonzo.

In ODM, Mr Odinga has been a strong voice for trials, whether through the international court or a special local mechanism. This has brought him into direct conflict with Mr Ruto, who openly expresses suspicion that those advocating trials are targeting him and other Rift Valley leaders.

The issue has split ODM down the middle, with Rift Valley leaders loyal to Mr Ruto threatening to deny Mr Odinga the vote that made him such a formidable candidate come the next elections. How the pendulum would swing was probably signalled about a week prior to Mr Moreno-Ocampo’s arrival. Mr Ruto got the opportunity to play a powerful role at an ODM executive committee meeting where the party strategy for the Ocampo visit was discussed.

The resolution was that ODM was for cooperation with Mr Moreno-Ocampo, but with the caveat that any trials for pre-election violence suspects should be preceded by trial for those who provoked the violence; in other words those who allegedly manipulated the elections to secure President Kibaki a second term. The party also demanded arrest and trial of the Police Commissioner and the Administration Police Commandant, whose forces are accused of many killings.

Common ground

It is instructive that before the ODM party meeting, Lands minister James Orengo had hosted Mr Ruto and other key leaders in an effort to repair fractured relations and find common ground.

As the ODM meetings were taking place, key figures around President Kibaki, including public service head Francis Muthaura and some selected security chiefs and permanent secretaries, were having their own strategy sessions. In the end, political expediency prevailed, and Mr Moreno-Ocampo came away empty-handed.