The International Criminal Court – a rethink.

(First published 11/9/10)

The ICC is widely seen as the solution to the horror that we visited upon each other during the period now referred to as Post-Election Violence (PEV). Majority of Kenyans are familiar with the term Hague and the name Ocampo even though they may not be aware of the intricate workings of international law. (Hague is the official seat of ICC and Moreno Ocampo is the Prosecutor of ICC)

The International Criminal Court is a court set up to prosecute individuals for genocide, crimes against humanity, war crimes, and the crime of aggression. The court came into being on 1 July 2002—the date its founding treaty, the Rome Statute of the International Criminal Court, entered into force—and it can only prosecute crimes committed on or after that date.

The Rome Treaty is a key point in this analysis. Kenya is a signatory of the treaty and it is thus bound to implement rulings done by the ICC. That is the reason why the PEV case is currently being investigated by Ocampo and also why the attendance of ICC – indicated President Bashir caused uproar. Not all countries are signatories of this treaty and some of the countries that are NOT signatories are USA, Israel and Sudan. So even as America preaches to us about justice and democracy it has not signed the treaty. I feel that it is within reason to ask why? Food for thought right there!

The ICC has being in existence for eight years and it has opened investigations into situations in five countries: Northern Uganda, the Democratic Republic of the Congo, the Central African Republic, Darfur (Sudan), and Kenya. Now I might be paranoid but how come it has only opened investigations in African countries? Is it a tool being used by western powers to pursue a neo-colonialism policy in Africa? Food for thought!

I confess that up to a month ago I was totally sold on the idea that ICC and Ocampo are the saviors that Kenya needs. I looked forward to a day when Ocampo rode into town and told us who was in the now infamous list and further when the leaders in that list were shipped off to far away Hague and the Kenya political landscape was changed forever. However the attendance of President Bashir to the Promulgation event made me reconsider my idealistic view.

The ICC is a court that does not have an army or an enforcement agency but rather it depends on the goodwill of member states to execute its rulings. Now picture a scenario where you commit a crime and the court passes judgment on you BUT there is no police to arrest you and your arrest is dependent on fellow citizens. The fellow citizens may or may not arrest you and the court can do nothing. That is the scenario facing ICC but at an international level. That is strike one against ICC.

The ICC due to logistical shortcomings can only handle a handful of cases and thus only the masterminds of the post-election violence can face charges and the actual perpetrators will have to be dealt with through other means. The masterminds of the violence are tribal kingpins who are able to rouse tribal animosity and rally their tribesmen behind them under the guise that their tribe is under attack. With Kenya still being a fragile country I feel that we cannot afford an experiment with the ICC and if we chose to go the ICC way then we have to be 100% sure that it will work. Picture a scenario where the tribal kingpins have been accused and charged at The Hague so they are ruined politically and have nothing to lose BUT they are still allowed to roam around in Kenya airing their hate-speech and their murderous followers are still scot-free. That is strike two against ICC.

Justice is a key issue in the post-election violence case. Some people say that we should only go after the masterminds and forgive the wananchi who carried out the atrocities. There are people who say that all involved in the post election violence should be thrown into jail and the key thrown away. Then there is the school of thought that we should forgive and forget and move forward to reconciliation.  All these perspectives have advantages and disadvantages and it is my desire to begin a conversation regarding this issue where Kenyans soberly analyze their quest for justice.

It feels to me as though a lot of Kenyans have washed their hands of the matter and are waiting to see what Prosecutor Ocampo and the ICC will do. I beg that we ponder on this matter and do not accept to be pawns of the international community or pawns of our political class.

Key questions to ask are: Have the countries where ICC has opened proceedings had a change in their situations? Given that ICC can only issue a ruling but has no power to execute, what would happen if the Kenya government refuses to hand over its leaders? If we open the simmering wounds through a rigorous court case, what are the mechanisms in place to treat the wounds and ensure stability of Kenya?

In conclusion let it be absolutely clear that I desire to see punishment being meted out to those who planned, financed and participated in the post election violence. However, before we open a Pandora’s Box I feel that it is prudent that we begin with the end in mind.

Let us put away our political and tribal considerations and serious ponder on the issue of justice and how best to achieve it. The Kenyans who died during the post election violence period and those who have had to endure life as internal refugees deserve at the very least that from us.



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