WHAT WE KNOW AND WHAT WE KNOW WE DON'T KNOW

At least some things are a little clearer now. The prosecutor of the International Criminal Court, Luis Moreno-Ocampo, has said he believes crimes against humanity were committed in Kenya during violence after the 2007 election. After meeting President Mwai Kibaki and Prime Minister Raila Odinga in Nairobi last Thursday, he said he will ask ICC pre-trial judges in December to let him go ahead with an investigation. He is confident he has a strong case against two or three people.
"I consider the crimes committed in Kenya were crimes against humanity, therefore the gravity is there. So therefore I should proceed," Moreno-Ocampo said.
Kibaki and Odinga have also put their cards on the table by not referring the Kenyan case to the ICC themselves. Presumably they do not want to be seen to be selling out on those in the court's sights, powerful people believed to include Cabinet ministers. The two leaders, who may be worried about their own perceived involvement in the violence that killed around 1,300 people, have said they will cooperate with the court, but given their inability so far to bring the financiers and fomentors of the killings to book, one has to wonder about their interpretation of the word cooperate.
The option of a Kenyan tribunal to try the suspects does still appear to be open -- a bill is to be tabled in parliament when it returns from recess -- but repeated efforts to establish a court that would meet international standards have so far failed. And even if the legislation to do so was passed, how many Kenyans would believe that justice would really be served by a local institution in a country where corruption and impunity are so widespread?
Now to what we don't know. We don't know how those who may eventually be indicted will react. Will they seek refuge in their political bases? Will these bases see any indictments as a strike against their community or tribe? Will they defend their perceived leaders? And lash out at communities or tribes whose leaders they believe should also bear responsibility, not just for the post-election violence but for the mishandling of a poll many believe was stolen. Members of Odinga's ODM party are already clamouring for those they believe stole the vote to stand trial at the Hague.
With these questions still hanging unanswered, reports that people are re-arming in the volatile Rift Valley, where Kikuyu and Kalenjin fought each other after the election, are alarming, even if the evidence in this report is a little patchy. However, there is also anecdotal evidence that people are either very afraid or very angry, and not just in the Rift Valley.
This little item from the Standard newspaper earlier this month is also interesting. Yes, journalists are often unpopular but this seems to show a dangerous willingness to incite violence in a very sensitive area.
Also worrying at the moment are some very strange goings-on within the Mungiki, a mafia-esque criminal gang overlaid with a patina of Kikuyu traditional beliefs. Last week, the spokesman of the gang's political wing, Njuguna Gitau, was shot dead in a street in downtown Nairobi. The Kenyan National Commission on Human Rights has said the killing was an assassination and that Gitau had reported threats to his life from the police earlier.
The leader of the Mungiki, Maina Njenga, who was released from prison in October and then denounced the Mungiki, has said he fears for his life. Two Mungiki members who were freed from prison at the same time have been lynched. The Mungiki, which is notorious for beheading its opponents and for extortion rackets, is believed to have links to politicians, some of whom paid its members to cause trouble after the 2007 poll. An internal power-struggle? An unofficial police crackdown against some members? And to what end? In any case, it seems to bode no good.
I cannot believe that the ICC prosecutor and the international community backing him have not thought through all the implications of indictments -- the possibility that these could re-ignite fighting between political groups and the tribes they draw their support from in a country where guns are ever more readily available. Moreno-Ocampo said in Nairobi that if he gets the go-ahead from the pre-trial judges the investigation should be completed in 2010 and the suspects named.
"And that will clean the situation, so you can have a peaceful election (in 2012)," he said.
I hope he's right but that statement seems to be assuming a lot.