ICC: Fighting impunity must not begin and end in Africa

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BY MACHEL WAIKENDA

In word and in deed, Kenyans have since 2002, expressed a desire to see and do things differently, and for the better. They took to the streets when the government played stone-deaf to their pleas for a just, tolerant, all-inclusive and more equitable society. All levels of society took time to lend a voice to forging a better system of governance, including throwing out the Independence Constitution and writing a fresh one. Efforts, battles and sacrifices on this front culminated in a new Constitution in 2010.

Fast-forward to 2013 and the country is celebrating half a century of self-rule. In the letter and spirit of unity, Kenyans should commit themselves to defending the sovereignty our forefathers fought so hard for. There is every reason to jealously guard the pillars of our nation forged and consolidated by three former heads of state and every Kenyan.

President Uhuru Kenyatta can only strengthen and further this national cause. Together with his deputy William Ruto, they have outlined the Jubilee administration’s agenda to unite all communities, races and religions under one indomitable Kenyan family with a common vision and purpose. But even as we wake up to a momentous Jubilee anniversary, to extol the heroic deeds of thousands of Kenyans who dared to speak truth to colonial power, those who paid the ultimate price for our freedom, we find the country shackled by yet another hurdle at the International Criminal Court (ICC).

Our year of Jubilee happens to be the same year the ICC opened its first trial of a sitting president and his deputy, on charges of crimes against humanity. The trial continues daily despite prosecution demonstrating ineptitude ranging from witnesses recanting evidence to flimsy investigations being put forth in open court.

Time and again President Kenyatta and the Deputy President have publicly declared commitment to co-operate with the ICC based on mutual respect. In addition, pleas for excusal from physical presence at The Hague-based court as the cases progress to allow them execute their constitutional duties as the democratically elected leaders of a sovereign country further demonstrate their commitment to co-operation.

When the ICC was founded eleven years ago, the fight against impunity was a key objective. The ICC has jurisdiction in 122 countries, including 34 in Africa. For the last one decade of it’s being, what is perceived as undue concentration against African leaders has been apparent.

This featured prominently at the recent African Union Special Summit in Addis Ababa threatening the inevitable, to severely strain the court’s relations with the AU. In my view, the one-decade chronicle of ICC’s work and concentration in Africa is alarming. Just like many African countries, there are member states and signatories to the Rome Statute contemplating exit from ICC if the vigour and resolve to reprimand and appear to arm twist Africa is anything to go by.

An unequivocal declaration of displeasure in ICC’s conduct was made by African Heads of State, who have formally written to the UN Security Council seeking deferral of the Kenyan cases at the ICC facing President Kenyatta and his deputy to allow them to fulfil their constitutional responsibilities. As law scholars would opine, in every judicial process, justice must not only be done but must also be seen to be done.

On March 4, President Kenyatta and his deputy were democratically elected into office. Through the oath of allegiance, the institution of the presidency swore to preserve, protect and defend the Constitution of Kenya.

President Kenyatta is mandated by the Constitution to discharge his duties, even if that means he should not physically attend ICC trials.

Unfortunately, some people want Kenya, a stable country with a new Constitution complete with a working judicial system, to be lumped together with failed states. Even for purely academic purposes, how does Kenya compare in terms of respect to human rights with countries like Syria, Iraq, Venezuela, Palestine, Colombia, or Afghanistan? Why hasn’t the ICC prosecutor filed cases against leaders in these countries?

How come the ICC’s decade-long global purview and “map of the world” has focused on the DRC, Uganda, Central African Republic, Darfur/Sudan, Libya, Ivory Coast, Kenya and Mali? Would African leaders be wrong to see a race-hunt rather than a vigorous fight against impunity?

(The writer is a political and communications consultant. Follow him on Twitter @MachelWaikenda)

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  • End Impunity

    Mr Waikenda, I am all for sovereignty but I will tell you one thing. Nobody has the sovereign right to murder and rape my Kenyan relatives and neighbours just because they are murderers are Kenyans. African leaders do not have the sovereign right to kill Africans. Secondly you tell us about 50 years of independence. Great. I advise you to read the TJRC report which Uhuru is dead silent about. In that report you will find out that Kenya has had 50 years of relentless political assassinations, 50 years of politically motivated massacres of Kenyans in their own homes, 50 years of massive ethnic cleansing, 50 years of state theft and land grabbing etc. You will also find out that the headquarters of all these crimes that have defined our country is State House Nairobi. Those are the facts. Now tell me what if anything has the so called reformed judiciary done to address any of these including the 2007/8 PEV. Nothing. The high number of African deliquents can be explained by the fact that most of them have been sent to the ICC by the African governments. So what is the problem.

    • Kenyan Sana

      Couldn’t put it any better. Bwana Waikenda needs to look at this issues from a non-partisan point. Lives have been lost and livelihoods destroyed yet we should just keep mum and move on? The ICC is the last hope of justice for many a victim.

      • drewpal

        This makes absolutely no sense. What justice for victims will be brought about by Ruto sitting at the hague listening to pointless drivel and coached lies?
        How do the victims benefit when the cases are finally thrown out? I’ve never understood this logic.

        • Kwessi Pratt

          Whats the best option, let guys free?

          • drewpal

            What nonsense question is this now Pratt?
            Let who free? You know someone that has been jailed?

            Anyways, My response was to the OP who thinks that the ICC trials will end in justice for victims. It will not. That is a fact.

          • Qwani

            Leave them alone! These are the biggest hypocrites and pretenders. They will come here saying that they want justice for the victims. These are nothing but crocodile tears. I can assure you that they even pray to the Almighty that UhuRuto are jailed. The sole reason is so that their candidate who lost the elections can finally have a chance of going to State House.

          • Kwessi Pratt

            This is absurd distortion! I personally dont want anybody to be jailed. However, I do want justice to take its full course. We never took Uhuru or Ruto to ICC! They were taken there by people who believed they were suspects! Events on the ground havent suggested they werent! This is because they have always claimed to have been fixed by Raila using KNCHR’s report. However, faced with the MOST SERIOUS CHARGES ON EARTH, they have NEVER EVER tried to come up with their own evidence that would contradict KNCHR report. Uhuru was deputy PM in Kibaki government. Ruto was hugely favored all along after schemes to rig elections became a distinct possibility. Neither Uhuruto in their previous capacities (even now!), nor Kibaki tried to place different evidence on the table. So what does that say to you? Evidence at ICC is even coming out differently! We should STOP using tribal emotions to cloud facts. Raila was never my candidate. But knowing what I believe is good for the country, I knew he was far better than now emperor suspects! Thats simply because he was not leashed by anyone and chances of bringing problems to the country were quite minimal. By the way, my views are patently based on facts not mere tribal loyalty, that seem to have made some you drunk, call it pugnacy if you want!!!!

          • drewpal

            Long pointless rant as is your norm. All you have said is that you prefered a candidate that will obviously never be president and this is always discernible. Just like the rest of us.

            As for Evidence, this is one more reason why I know you never think before you write.
            Evidence to prove the contrary? Are you insanely daft or do you simply not understand the concepts and provisions in the constitution of Kenya? Innocent unless proven guilty is the international and Kenyan standard.
            It is not for Uhuru or Ruto or anyone ever accused of anything to prove that they are innocent. It is for the accuser to prove their claims.
            This rubbish about Uhuru or Ruto providing evidence to show they did not commit any crimes is just that. Rubbish.
            And yet, even with this fact, at court, the duo have shown that ‘evidence’ adduced by the OTP is, much as your statements, rubbish.

          • Kwessi Pratt

            Suspect is NOT a normal person and thats why so many of them are rotting at Kamiti Maximum prison. This new stuff was only introduced to confuse and serve tribal agenda, if not to raise impunity to new heights. Why are police shooting suspects on sight if they are innocent? Even under emperor suspects this is happening almost on daily basis! Suspects around the world dont run for offices. They wait untill they are cleared or jailed. Point out a single country where suspects run the show? Even in communist countries you have to let go your ambitions! SUSPECTS ARE NOT NORMAL GUYS AND THATS WHY THEY ARE CALLED SO! And may be you dont understand what trial means. Its about one clearing himself or herself against set out incriminating charges! If you fail to prove your innocence you go to jail. Only in some instances where its your word against mine your argument can carry abit of weight. On the whole however, accused MUST establish his innocence, as are the cases at ICC! Thievery can only survive once or at the most twice. We are there already and believe you me, it WONT HAPPEN AGAIN!!!!

          • drewpal

            This is rubbish. A suspect IS IN FACT A NORMAL PERSON. Until anyone can prove otherwise.
            There are NO suspects at Kamiti Maximum prison. At least make an attempt to understand the law or get your facts right before ranting.
            You are patently ridiculous. “Confuse and serve tribal agenda”? Are you serious? Have you ever bothered to read the constitution? Do you have an inkling of its contents?
            Are you simply incapable of rational thought? Police shooting suspects is a criminal act. That you do not know this is astounding.

            You, I suspect are a wannabe lawyer but simply lack the mental capacity required. This is the reason you attempt legal arguments but have zero knowledge.
            A trial is NOT about one clearing his/her name. It is a prosecutorial process brought about by the Government in the case of a government and the OTP in the case of the ICC to prove the GUILT of the suspect. Which they must. The suspect can sit at trial and do absolutely nothing, does not have to answer any question or present any witnesses nor counter the accusations laid out by the prosecutor. AND STILL, the prosecutor must prove that the suspect is guilty. Get that into your thick head or as I’ve earlier told you, shut up!
            The accused does NOT have to prove his innocence. EVER. This any first year law student will tell you. This, some primary school child knows. If you knew anything, you’d realise that suspects do not answer to incriminating charges. EVER. Otherwise there would be no need for a trial. Do you even understand that as you read it?
            Why not simply get some education before spewing nonsense Kwesi Pratt?
            This idiocy of scanning through online articles and then coming to post here as knowledge is absurd and boring. Educate yourself.

          • Kwessi Pratt

            And why this nonsensical conclusion? I believe you know the truth and that truth doesnt fit tribal feelings, if not tribal justice! By the way, who prevented us from being finished?

  • knightamani

    Mr. Waikenda, did you say “…the institution of the presidency swore to preserve, protect and defend the Constitution of Kenya”? well read article 143(4): “The immunity of the president under this article shall not extend to a crime for which the President may be prosecuted under any treat to which Kenya is a party and which prohibit such immunity” . Kenya is a party to the ICC treaty and therefore the constitution allows for the president to be prosecutedby ICC during his tenure in office. Now explain to me how thew President signed onto the AU decision asking for immunity for presidents during their tenure in office? which contitution was he defending?

  • Kwessi Pratt

    And why not, if Africa is indeed the bastion, if not ocean of impunity?

  • Qwani

    The homeguards of today, as was the case 50 years ago, relied on the colonialists for their daily income. They wept bitterly when the colonialists left. Today the colonialists have returned in the form of the ICC. They can barely conceal their joy. They will pretend they want justice for the victims. This is a blatant falsehood for the naked truth is that just like the ICC, they want UhuRuto out of office and have their own failed candidate ascend to State House through the easiest path posssible. Not even Bensouda is able to stand before TV cameras and declare to the whole world that she has a strong case. The initial aim of these cases were not to seek justice, but to ensure that UhuRuto remained engaged indefinitely at the Hague and that some puppet leader would sign over all the country’s lucrative contracts over to them. It has been, is and always will be about Africa’s resources. That is the long and short story of what this is all about.

    • Can’t Kill The Truth

      The homeguards of the colonial era are the ones who took power after they left. Do you know what John Michuki was doing during the colonial era. He was helping the wabeberu to destroy the mau mau fighters. He was so good at it that he was given the name kimendero whose job was to help crash the testicles of mau mau fighters. What hapenned to Michuki after the wakoloni left? He became the kimendero during the Kenyatta era and during Kibaki era and was the first to declare uhuru the new muthamaki. Read the history of the country before talking about things you have no clue about. I know tribalism makes many people blind to the truth but that is their problem. Those who roasted children like goats is Kenya in the PEV should carry their cross with a little dignity instead of relying on false nonsense.

      • Kwessi Pratt

        Freedom fighters are now mainly hopeless peasants. Home guards
        on the other hand, continue to lord on us as though independence was
        a monumental joke! I suspect a thief is calling innocents thieves to make us loose trail!!!!

      • Qwani

        Of course we all know Michuki was a District Officer during the colonial period. You claim Mzee Jomo Kenyatta was a homeguard and you tell me to read the history books??? I like the “tone” of your comment though. I like a person who speaks their mind or as they say in Texas, who shoots straight. It is hypocritical of people like you to feign sympathy for or even empathy with the PEV victims. People like you simply want UhuRuto to be the fall guys so that your long time political darling can ascend to State House eaaasily. When all this is over and it is decided that each PEV victim should receive Kshs75 million each and it is found that over 75% of those victims come from a particular ethnic group, it is people like you who will finally reveal their true colours.

  • Mwaura wa Wambari

    “Where justice is denied, where poverty is enforced, where ignorance prevails, and where any one class is made to feel that society is an organized conspiracy to oppress, rob and degrade them, neither persons nor property will be safe.”Fredrick Douglass

  • Grace

    Why are all contributors to this writing like it is concluded that the three accused are guilty, or the only guilty? Let time tell us the truth, because they all know (and they should not pretend they do not) that the three did not rape, maim, kill or burn property during the 2007/2008 clashes, but someone did, either sent or paid by someone (whom the court should establish). And they know too well that they did not call to people to go to the streets after the announcement of the election results. They also know too well that there had been tension brewing loooong before the results were announced, and that there were threats months before the elections that some tribe will pay if some candidate does not win. So please stop the hypocrisy, coz even if the ICC does not get the REAL CRIMINALS (which we all know are free somewhere because we all waited holding our breath for the envelop to be opened to see who really was mentioned, and many sighed when their persons were not in the list, coz they too feared for what they really knew), they sure know themselves and we know they are not at peace with themselves, and that one day, they will be known by the whole world.

    Victims who lived to tell the story also know the identities of those who attacked them. Why can’t the prosecutor follow the cue and find out who paid them, or who drew them to do what they did, coz largely it cuts across the many tribes in Kenya.

    • Kwessi Pratt

      ICC deals with highest “offender” responsibility. That means if someone sent another to rape, maim and murder, that sender is guilty of those things. And thats why we are having these guys at ICC. Were ICC as simplistic as you, there wont be anyone before it. And since their cases have been confirmed, they are being tried for direct criminality. Whether they are convicted or not, the bottomline remains they are patently accused of crimes against humanity! Trying to go around that with little qualifications doesnt amount to anything at all …. at all!!!!

      • Grace

        Oh, does it? How come you hold the opinion that they are patently accused of crimes against humanity, and you state they are being tried for direct criminality because their cases have been confirmed, yet you sound like you have concluded they are guilty as accused? Then there would be no need for trial, would there? We all know that the accusations leveled against the three have to go on trial where evidence of their involvement will be tabled for all to see, and until then they are innocent as by our laws? Even if they are convicted or vindicated, will the victims feel that justice will be seen to be served while the true rogues walk free? What say you about the real criminals – all those who sent people to the streets, those who sent people to do their dirty work, directly or indirectly, those we all held our breath in case their names were in the envelop? Do not try to think that comments on these topic portray any simplicity in thinking, no, but trivializing real issues does not help come to the bottom of the whole saga.

        • Kwessi Pratt

          Who are those true rogues? Kenyan state has failed to pin point those so called rogues simply because, impunity runs riot here! Pretentious accusations have been thrown around. However, we have never been furnished with any shred of substance at all! We have been told about KNCHR’s involvement, but again, no one has ever tried to give us a different report with those insights of yours. That reduces your works to mere fiction my dear! AND FOR YOUR INFORMATION, THESE GUYS ARE AT ICC BECAUSE OF DISINTEREST BY KENYAN AUTHORITIES IN TRYING THEM. SAME SAME AUTHORITIES THAT TRASHED CONSTITUTION TO MAKE THEM EMPEROR SUSPECTS! THEY ARE BEING TRIED FOR DIRECT CRIMINAL NVOLVEMENT! The trials are definitely about that fact, not about empty claims devoid of facts!!!!

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