Africa Confidential’s February 4 “free article” titled “Rewards and Realpolitik” should be troubling to those in civil society in Kenya and in the West who, like I do, consider the pending ICC prosecutions in Kenya to be crucial for addressing impunity.

Africa Confidential suggests that the United States and France are giving serious consideration to acting in the U.N. Security Council to agree to defer prosecution of Sudan’s al-Bashir as part of the “carrot” approach endorsed by Envoy Gration and others to try to maximize his cooperation on the split with the South and on Darfur. Reportedly some detailed conversations at high levels of the State Department have taken place. A Sudanese source reportedly says that a deferment for the “crimes against humanity” charges for the six Kenyan suspects would be thrown in as part of a deal with the AU to provide diplomatic cover on accusations of a “double standard”.

Please take time to read the whole detailed article and weigh in if you care about this.

David Throup of CSIS wrote a useful thumbnail overview of the post election violence in Kenya and the underlying ethnic and political tensions. While David was controversial as an outspoken critic of the EU election observation in Kenya, it should be noted that his own calculations as initially discussed publicly in Washington had Kibaki losing the election and claiming victory through fraud, so in that sense he has been part of the overall international consensus regarding the voting. The crucial point is that there were different types of violence that happened for different reasons–thus demanding a differentiated response as reflected in ICC prosecutor Ocampo’s selection of cases to bring forward.

“The International Criminal Court and the Post-Election Violence in Kenya” by David Throup at CSIS’s Online Africa Policy Forum Blog.

Most Kenyans, according to opinion polls by the local press, however, believe that the six named individuals should be prosecuted. They are right–the era of impunity must be ended. Most of those displaced in 2008 still remain in encampments, too frightened to return to their homes. The next election may well be even more closely contested and violent unless a clear message is sent that the era of impunity is over and that perpetrators of violence will either be tried in Kenya’s courts or appear before the International Criminal Court. Both Kalenjin and Kikuyu as Kenyans have the right to live and farm in the Rift Valley and in other parts of the country. As Kenya becomes more ethnically intermixed, ideas of ethnic hegemony and arguably the era of ethnic-politics can no longer be tolerated.

There is, however, one danger. William Ruto and Uhuru Kenyatta are “big men”. . . The ICC preliminary charges may possibly intensify ethnic identities, uniting the Kikuyu and Kalenjin communities in a joint sense of persecution. Uhuru Kenyatta and William Ruto are highly regarded in their communities and would constitute a formidable alliance at the next election. The ICC and the international community should proceed with caution and encourage moderate voices which urge compliance in the hope of a better Kenya.

As far as Kenya goes, the perception that Ruto and Kenyatta and associates, with Kibaki’s help, successfully faced down the ICC and the international community generally, seems to me to be about the worst thing that could happen in terms of enshrining impunity and deterring further reform efforts by Kenyan citizens and civil society. Even if the Administration takes the approach of protecting al-Bashir, it would seem especially cowardly to sacrifice Kenya in the mix for the reasons suggested here.

The human rights community in the U.S. seemed to be caught off guard when the Administration issued blanket waivers for countries employing child soldiers, so presumably they will not be complacent now.