Lest we Forget...

By Mzalendo contributor Moreen Majiwa A barrister by training Moreen is currently a Programme Associate in the Collaborative Initiative Programme at Urgent Action Fund-Africa.

As it becomes ever more evident that Kenya has date with ICC, headlines concerning the matter have dominated the dailies.  Promises by the President and PM to cooperate fully with the International Criminal Court have given way to protests, and mixed messages from government officials vis–a–vis the ICC’s intervention.

The legality of the ICC’s intervention has been questioned on grounds of infringement of sovereignty e.g. the case brought by Joseph Gathungu.  In addition, Central Kenya Parliamentary Group Chairman Ephraim Maina and MPs Jamleck Kamau, Simon Mbugua, Kareke Mbiuki and Ferdinand Waititu have accused ICC of using a report that targets the Kikuyu community in its investigations.

Meanwhile, the Minister for Justice and Constitutional Affairs  Hon. Mutula Kilonzo continues protest against ICC intervention citing the availability of local option to prosecute perpetrators of the 2007/2008 post-election violence but has since clarified that he is not opposed to the ICC intervention.

In an environment in which the government’s stance on ICC is at best vague one cannot help but wonder if the word cooperation has taken on a meaning opposite to its traditional one. It is important that we avoid being dragged into the political circus and steer clear of the government's flip flopping on its support/lack of support for the ICC intervention.

Lest we forget the normal Kenyan was the worst affected by the post election violence of 2007/2008. We cannot afford to forget the killing of more than 1,000 people, the displacement of over 300,000, some of who are still living in displacement camps, the callous brutality of the security forces, extra-judicial kills and disappearances, and the publicly raped women. We need to keep this clearly at the fore of our collective conscience as Kenyans. Only then we can decipher what we are told from what is really happening and distinguish fact from conjecture to determine the true intent behind our MPs protests to ICC intervention, particularly in light of the failure to institute a credible, independent local process to bring the perpetrators of the 2007/2008 violence to book.

Though much has been said about the nature of ICC intervention and its bias the processes by which ICC takes on a case is clearly outlined in the Rome statute which Kenya has signed, ratified and domesticated and which is now law by virtue of the new constitution. In cases of sufficient gravity, and many would be hard pressed to make the argument that the post election violence was not sufficiently grave the ICC will only intervene if the country in question, in this case Kenya  is unwilling or unable to genuinely carry out the investigate or prosecution. Unwillingness is characterised by the initiation of proceedings created for the purpose of shielding the person (s) concerned from criminal responsibility or where proceedings are improperly delayed or conducted in a manner that is not consistent with the intention to bring the person/persons concerned to justice. Inability speaks to the lack of institutional capacity or lack of a credible independent national judicial system capable of prosecuting perpetrators.

From the failure and lack of active government support for national processes one can only draw the   conclusion that the government is either unwilling or unable to carry out investigations or prosecutions, or both. Of the local processes the Truth Justice and Reconciliation Commission (TJRC) has been plagued by scandals since its inception and lacks both credibility and popular legitimacy. Very few know about how or where the TJRC is carrying out its mandate and for what is supposed to be a public truth telling and healing exercise the TJRC seems pretty secretive. But of even more note is that fact that the TJRC cannot to prosecute any of the perpetrators and as body with no prosecutorial powers its ability to bring persons concerned to justice is called into question. Under scrutiny the Special Tribunal option fares worse. The issue of the formation of a special tribunal to try suspected perpetrators was strongly resisted. Only after considerable pressure from NGOs and the international community, repeated threats by Kofi Annan to hand over the famous Waki envelope to the ICC, and impending ICC intervention were bills for the formation of a special tribunal tabled before parliament by Imenti Central MP Gitobu Imanyara and Former Minister of Justice  and Constitutional Affairs and MP for Gichugu Martha Karua. Both bills were rejected. But one questions the motives of a special tribunal borne out of not the desire of our leaders to see justice done, but under intense national and international pressure.

However more important than the wrangles in the government over whether to cooperate with and support ICC in its investigations are the wishes of the Kenyan citizenry. Polls have shown that a majority of Kenyans, 54%, back the ICC intervention. It is up to us to ensure that the government’s public policy falls in line with our public opinion and not the other way round. It is imperative that those responsible for the crimes committed during following the 2007/2008 elections be brought to justice. The matter of justice is crucial to ending the culture impunity, ensuring accountability as well as preventing a recurrence of the violence come 2012. Seeing as a credible and independent local process for trying the perpetrators of the post election violence is yet to materialise the ICC seems our best option.

Posted by Mzalendo Editor on Oct. 14, 2010

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