On Wednesday December 15 the prosecutor of the International Criminal Court Luis Moreno Ocampo announced that the ICC was issuing summons against six Kenyan citizens involved in the post election violence that engulfed the country during sixty days at the end of 2007 and the start of 2008. This is a bold new move for a prosecutor who has been accused of double standards against African countries, but it gains significance when put in the context of the events in Côte d’Ivoire, the many violent elections around the world, and Kenya´s future contest in 2012.
According to the ICC hundreds of women were raped, more than 1,000 people died, over 3,500 were injured and nearly 600,000 became internally displaced during the violent episodes after the 2007 presidential elections in Kenya. These are terrible crimes and, according to Ocampo, they are crimes against humanity. In the document he presented before the three judges of Pre Trial Chamber II, Ocampo denounced deliberate planning to commit the crimes and gain control of certain Kenyan provinces by political party leaders of all camps.
This case represents a departure from the ICC’s previous focus on violations occurring during war and may be a precedent for future cases, as Ocampo’s recent statement about the situation in Côte d’Ivoire seems to show. In many cases post election violence erupts spontaneously. When political parties and leaders use it as a tool to advance their interests in an election, the entrance of the ICC into this new area might contribute to change the incentives to use violence. Knowing that they can be prosecuted for crimes against humanity at the ICC, party leaders may be dissuaded from engaging in planned violence should they face the possibility of an adverse outcome in a contested election.
This is the first case initiated by the prosecutor himself, and it risks fueling accusations of double standards for African countries. Such complaints were raised when Ocampo prosecuted Sudanese President Omar al-Bashir, and it may further alienate ICC supporters in Africa.
Regardless of the final outcome, the ICC’s new venture calls attention to the need for stronger electoral institutions. Democracies need more than free and fair elections; they need adequate legal structures to legitimately adjudicate winners and prosecute those who engage in systematic violence.