This comes ahead of an ICC decision expected January 19 on whether to confirm charges of crimes against humanity against six senior Kenyans. The six are charged for their alleged role in 2007-2008 post-electoral violence which left more than 1,000 people dead and hundreds of thousands displaced.
ICG and several Kenyan political scientists have warned that the international court's decision could reignite the political climate in Kenya ahead of presidential and general elections expected later this year.
The suspects include Deputy Prime Minister Uhuru Kenyatta, former Police Commissioner Hussein Ali and Cabinet Secretary Francis Muthaura, who are charged together. Members of parliament Henry Kosgey and William Ruto are charged in a second case, along with radio journalist Joshua Arap Sang. All six appeared voluntarily at ICC confirmation of charges hearings in The Hague in September/ October 2011.
"If the court, as is expected, confirms charges for both cases on the same day, this could be a crucial step to help defuse a rise in ethnic tensions," says ICG in its report. "There are real fears that if charges are dropped for suspects of one ethnicity and confirmed for those of another, ethnic tensions could increase sharply, regardless of the legal merits."
"The ICC's decisions will continue to play a pivotal role in Kenya's political process, especially in the crucial 2012 election," it adds. "The court appears cognisant that these will not be viewed by many Kenyans simply as legal decisions and that the timing and framing of proceedings and rulings will inevitably have an impact in heightening or tamping down tensions."
In addition, the policy group urged the Kenyan government to "recognise that the fight against political violence and impunity is its responsibility. It needs to close the impunity gap by complementing the ICC process with a parallel national process. It should begin by directing the attorney general to investigate other individuals suspected of involvement in the violence that followed the 2007 elections with a view to carrying out prosecutions in the domestic courts."
The report entitled "Kenya: Impact of the ICC Proceedings" called on the ICC to explain its work and limitations to Kenyans who have expressed fear that there could be a repeat of violence. "If the ICC process is to contribute to the deterrence of future political violence in Kenya, the court and its friends must explain its work and limitations better to the public."
John Onsembe, a Nairobi based analyst says the ICC's decision will have a big impact on Kenyan politics in the run-up to the presidential elections. "If the charges against Ruto or Kenyatta are confirmed, it will automatically lock them out of the presidential race and this means there will be new alignments," he says. "But if they are not confirmed, most probably they can unite to upset Prime Minister Raila Odinga from winning, because they have openly blamed him for their ICC woes."
Outgoing President Mwai Kibaki is constitutionally barred from seeking reelection for a third term in office.
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