The Kibaki administration has obviously made some headway in the diplomatic effort to “defer” the ICC cases against “the Ocampo 6” suspects.  The endorsement of the African Union, although it should come as no real surprise, may help give cover to others looking for an excuse to duck facing up to issues of accountability for Kenya’s 2008 post-election violence.

The the tenor of discussions by Deputy Secretary of State James Steinburg with Kenyan politicians last week was reported differently in different media outlets.  I will hope that The Nation, which is ordinarily pretty reliable on those things that it is willing and able to report, has it right:

US Deputy Secretary of State James Steinberg while visiting Kenya said on Thursday that his government would not support the deferrals, especially if they were meant to protect the suspects.

“What is critical is to make sure accountability is achieved and impunity is avoided,” he said. Mr Steinberg said the UN Security Council had not communicated with the US as one of its permanent members on the AU’s deferrals request.

He added that because the ICC is the mechanism available and which Kenya submitted to, the US was in its full support.

“The US feels strongly that accountability is a critical element of making sure Kenya can move forward and deal with the past as well as build a strong future,” Mr Steinberg said in Nairobi.

News of the US position flies in the face of reports that the government is preparing for a second round of shuttle diplomacy that will take it to nations, some of which hold the key to the decision the country is seeking.

Let’s be clear  about the issue:  the point of this initiative by the Kenyan administration is to save the “Ocampo 6” from prosecution.  The decision to “go to the Hague” rather than institute a “local tribunal” was made long ago.  Only when Ocampo’s six suspects were named did the administration jump in and dispatch Vice President Kalonzo Musyoka to other African leaders to court support at the AU to block the prosecution.

Likewise, let us be clear about the timing in regard to the implementation of the new Kenyan Constitution and the next Kenyan presidential election in 18 months.  The constitutional referendum went to the voters way behind the schedule anticipated in the 2008 “national accord” establishing the “Government of National Unity” and the “reform agenda”.  The establishment of a local tribunal to address the post-election violence was never dependent on or tied to the new constitution–bills to establish a local tribunal were submitted in Parliament and voted down, allegedly in favor of “going to the Hague”.  Now that the new Constitution has passed, the political establishment is dabbling with implementing it.  Nothing has happened yet that fundamentally changes the nature of the Kenyan justice system, and it will take months or years even if Kenya’s political leaders change their minds (or characters) and work at it seriously.  Look at the Truth, Justice and Reconciliation Commission, which was also mooted as an alternative to prosecution for the post-election violence.

With the 2012 election 18 months away, it is simply too late for a new meaningful legal alternative to the ICC to try major players in crimes against humanity from the 2007 election.

The next step is apparently to lobby the UN Security Council to intervene to stop the ICC.

The current political elite in Kenya holds its status on a foundation of accumulated impunity.  Undermining this foundation involves change, inherently unpredictable, and risk.  A decision by the Security Council to politically interfere with the ICC process now to preserve that impunity for the Kenyan elite would strike me as a massive display of moral cowardice at a time when, if ever, we should all know better.

The polls have consistently shown that the great majority of the Kenyan people support the ICC process.  Most of Kenyan civil society is engaged to support justice.  This whole situation arose because members of the governing elite were not willing to trust the 2007 election to the people.  We need to stay the course on reform and the ICC now.