By Otuma Ongalo

Luis Moreno-Ocampo must rue the day he vowed that he would make Kenya an example to the world in the war against impunity.

In his naivetČ on the brand of justice our part of the world offers, he had envisaged landing in Nairobi and meeting a leadership yearning to crucify lords of impunity.

This was never to be. He arrived in Nairobi beaming with optimism but will jet back a crestfallen man.

Instead of meeting an enthusiastic President Kibaki and excited Prime Minister Raila Odinga, he found foxy fellows willing to run with the hare and hunt with the hounds at the same time.

Moreno the hound was assured total cooperation while rabbits — top post-election violence suspects — were granted an opportunity to dash deeper into the bush.

Following Moreno’s whirlwind tour, the two principals found themselves in a catch-22 situation. On one hand, they had to mollify aggrieved Kenyans and the international community that they are valiant soldiers in the war against impunity. On the other hand, they had to fight for self-preservation and that of their allies who have found themselves in hot soup for fighting their wars.

A typical politician thinks politics, not justice. And Kibaki and Raila are more than typical politicians. Raila’s ambitions for the top seat are still bubbling and there is no way he can hand a top suspect from Central or Rift Valley to Moreno without thinking of political backlash. Kibaki’s political career is on the homestretch but he too needs peace and harmony outside State House. Contrary to perceptions, he too has some friends he cannot let perish in their hour of need.

The two principals, like the Biblical Pontius Pilate, have now washed off their hands over the perception that they are betrayers of allies who fought for their cause.

In Matthew, Pilate — the governor of the Roman Province of Judea and judge at Jesus’ trial — washes his hands off Jesus and reluctantly sends him to his crucifixion.

By their refusal to refer the case to the International Criminal Court, the two principals may have washed their hands off the suspects, but have not necessarily cleared the culprits. All they are telling them is: "We exonerated you but what happens next is between Ocampo and you."

In the public court, Kibaki and Raila have lost the war against impunity. They have not been men enough to let suspects face justice and risk whatever ramifications. The public opinion could be harsh but it is not also lost to the fact that the two have to grapple with a conscience problem.

The elephant in the house is that those who burnt individuals at the Kiambaa church in Eldoret are individuals who were bitter that either ODM had lost or its victory had been stolen. Those who burnt individuals in Naivasha were PNU supporters on revenge mission. One cannot talk of ODM without mentioning Raila, the same way PNU is a mere shell without Kibaki.

Another hurdle the two principals had to grapple with is the fear of going against the grain in the wake of altercation between the African Union and ICC, especially over Sudan President Omar al-Bashir’s indictment. There is bad blood between ICC and the African Union, which perceives it as the West’s tool to interfere with the continent’s affairs.

While Kibaki and Raila may sigh with relief that they have successfully managed to run with the rabbit and hunt with the hound, their decision may come to haunt them later.

In essence, they have partially — if not wholly —trashed Waki’s recommendations and given Ocampo a leeway to initiate own investigations. Assuming Waki spared them in his dreaded envelope, ICC stands a high chance of finding them culpable in post-election violence.

The principals may not have been directly involved in or authorised the violence but under Rome Statue’s Article 28, a superior is liable for failure to exercise control over errant subordinates.