Dear Readers – Please find the below article written by Allan Ngari, Project Officer in the Justice and Reconciliation in Africa Programme at the Institute for Justice and Reconciliation. The views and opinions expressed here do not necessarily reflect the views and opinions of the Open Society Justice Initiative.

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The adoption of the Rome Statute and the advent of the International Criminal Court (ICC) have significantly influenced democratic transitions and the rule of law in a number of African countries, but the specific intervention in Kenya by the ICC is only one tool for achieving long-term change in Kenya.

Kenya’s fate as a country struggling with transition was sealed when violence erupted following the publication of the results of highly contested presidential elections at the end of 2007. Almost four years later in September of 2011, the ICC Pre-Trial Chamber II began hearings to confirm charges in two significant cases, involving six Kenyans suspected of bearing the greatest responsibility for the December 2007 to January 2008 post-election violence.

These hearings began after the ICC Appeals Chamber conclusively decided in late August that the two cases before the court were admissible. The ICC rejected submissions by the government of Kenya expressing its ability and willingness to handle the post-election violence prosecutions on its own. It is expected that the Pre-Trial Chamber will deliver its ruling to confirm or deny the Prosecutor’s charges against the six suspects by the end of this year.

Critically, this decision will certainly shape the course of political manoeuvring in Kenya as preparations gear up for the next general election, expected to be held towards the end of 2012. Stern warnings have already been issued against incendiary statements, and particularly those that may heighten political tension and or increase the possibility of a repeat of past violent conflict. The so-called ‘Ocampo Six,’ named with reference to the ICC Chief Prosecutor, include deputy prime minister, finance minister and possible presidential candidate Uhuru Kenyatta, as well as other senior public servants and influential political leaders.

However, the tone of the 2012 polls will also be inescapably set by deeply rooted political and historic forces, with influence far beyond that of the ICC’s intervention.

Parallel to the gaining momentum of the ICC process, Kenya’s political elite and their followers have been cruising towards the national election. The work of the Court, in fact, appears to have had only a limited impact on the fluid mindset of the political class. Similar to other pre-election periods in the country, shifts in affiliations and formations of new political alliances for preferential presidential candidates remain a constant feature.

The truth beneath the surface in this seemingly peaceful East African country is that elections have always been a show of Kenya’s limited success in dealing with its lurking demons of ethno-political intolerance. In 48 years of independence, state patronage in dispensing the country’s bounty has always been circumscribed along ethno-political lines. With each regime change has come an inevitable vilification of the preceding government as having been incapable of confronting the nation’s challenges and of realizing the proverbial golden pot at the end of the rainbow. Numerous ethnic communities are disenfranchised through these processes, evoking uneasy analogies to the plight of the majority of black South Africans under apartheid. And though Kenya’s ethnic divisions are less blatantly segregating than the policies of apartheid, corruption, the embezzlement of state resources and irregular land allocation based on political favours remain rife, and these have far-reaching effects on ordinary citizens.

While significant divides persist along ethnic lines, the possibility of future electoral violence remains a real possibility. In this respect, little has changed since the ICC’s intervention. Prosecutorial zealots have argued in response that the Court should not be seen as a panacea for Kenya’s problems. The arm of the law can only go so far in bringing about profound social change; rather, it has been used with more success to address impunity gaps, for example.

However, both domestic and international law have also arguably lagged behind some of the most pressing challenges of the times. The Rome Statute of the ICC, adopted in 1998, is the first international treaty to codify the crime of apartheid – ‘committed in the context of an institutionalised regime of systematic oppression and domination by one racial group over any other racial group or groups and committed with the intention of maintaining that regime’ (Article 7.1[h]) – as a crime against humanity. This is laudable, but South African apartheid is now a monster of the past, slain by universal suffrage in 1994 well before the adoption of the Rome Statute. Although the effects of apartheid policies are felt to this day, these effects are not criminalised and neither is there the capacity or the political goodwill to conceive of such a criminalisation. These lingering effects of oppressive regimes and armed conflict often eat into whatever is left of the remaining societal fabric.

It does appear that the tone and intensity of political verbiage around ethnicity in Kenya has changed since the commencement of the ICC interventions. There have been significant steps towards promoting national reconciliation and social cohesion through national institutions such as the National Cohesion and Integration Commission among others. Tribal politics seems to be getting less coverage. The current cases before the ICC have also ensured that the issue of inter-ethnic differences remains a prominent issue in public discourse in a manner that cultural practices traditionally have not allowed. In many ethnic communities in Kenya, it is culturally unacceptable to confront wrong-doing, particularly when the offender is in a position of authority. This practice has, in some places, prevented open confrontation and critique of the underlying causes behind the electoral clashes of 2007.

What now needs to happen, beyond the current cases before the ICC and indeed the Court’s remit altogether, is substantive work to build lasting social cohesion across Kenya’s ethnic groupings. This will be essential for sustainable peace in the country. This cohesion must go beyond mere tolerance and co-existence, and should not rely on coercion to enforce cordial relations where deep-rooted resentment remains. Rather, these negative sentiments among ethnic groups must be challenged and resolved in order to build a cohesive nation, within a context of celebrating the good practices of cultural diversity.

Kenya is not alone in this challenge of social cohesion, which can also be found in other nations in transition on the continent. Perhaps as a continent, through the offices of inter-governmental agencies such as the African Union and civil society organisations, and even through communities and individual efforts, we should identify these challenges as universal but focus on localised and locally-owned solutions. Failure to do so will compromise our efforts towards justice and reconciliation across Africa.