, NAIROBI, Kenya, Jan 16 – The decision of the International Criminal Court is eagerly awaited by Kenyans, but more so by a group of people who were directly affected by the 2008 post election violence – the victims.
When the ICC took up the Kenyan cases, most Kenyans welcomed the move after having lost confidence in local courts to deal with the perpetrators.
Former Kenya National Commission on Human Rights Chairperson Florence Jaoko says victims have been looking at the ICC hoping it will give them solutions and also hold those involved accountable.
“For Kenyans they have seen the ICC as the only option. They have not seen any movement at the national level to show that justice will be done. They have been relying on the ICC,” she asserts.
Almost five years after the violence that left 1,333 people dead and 350,000 others displaced, Kenya has done little to initiate a local process to punish the perpetrators. It is also yet to resettle people still living camps.
The decision by the Pre-Trial Chamber II will have heavy impact on Kenyans especially those who suffered the brunt of the post election violence. Failure to confirm the charges will be such a big blow since the victims do not have any other process to look up to for justice, according to Jaoko.
“Not confirming the charges will lead to a lot of disappointment especially for the victims,” Jaoko says.
A victim in Naivasha who prefers anonymity told Capital News that they hope that the court will confirm the charges.
“We know our lives will never be the same again, those who killed our people and destroyed our property are out there. But those who get caught for helping them, let the ICC confirm the cases, it will teach all the bad people a lesson,” the victim said.
“If ICC does not do something, I don’t think we will have anyone to show us some effort of showing us justice, do you think the government cares? If they care why am I still in a camp with my family? I have not seen them (government) ask us who did these things to us,” the victim protested.
African Centre for International Legal and Policy Research (CILPRA) Director Godfrey Musila also thinks the ICC has filled a gap in terms of assuring victims of at least some justice.
“Perhaps ICC is the only serious option for victims in terms of prosecution. I want to leave it at prosecution, since ICC is very limited in terms of reparation. If the charges are thrown out, the prosecutor will have lost out. It has a serious impact in terms of justice to the victims,” he explained.
Impunity which has for many decades plagued Kenya has for once faced the tough arm of law since The Hague based court settled on six individuals with five of them being powerful individuals holding either public or political office.
“It also has impacted on impunity. The mere fact that ICC acted on Kenya may actually have impacted political behaviour. It doesn’t matter whether one has been convicted but the fact that there is an international court that can act, I think it is deterrent,” he explains.
However the ICC may not necessarily be a lesson to the middle level perpetrators according to Musila: “I cannot be certain about this because the small guys who actually did the things for which the Ocampo Six have been indicted are not in court. They have not felt the pinch that the Ocampo Six may have felt.”
“The question is whether the message has penetrated to the small guys. I am also questioning the idea that ICC can be deterrent because of the number of people it prosecutes, it can deter the political behaviour at the highest level, but what about the small guys?” he wondered.
But even though only few people are facing charges, it does not mean people will not have learnt a lesson even if they are not among the six suspects.
“No matter what happens people will think twice before engaging in criminal acts,” he asserts.
For Jaoko a ‘No’ from the judges will also confirm to Kenyans that the ‘untouchables’ are actually beyond reproach.
“It will kind of deepen the belief that Kenyans have – that impunity is allowed for certain Kenyans – and that there is no will to address impunity. They will see it as nothing ever works in this country in terms of accountability for top people,” she explains.
While the ICC may not necessary be the main factor to stop violence in future elections, Jaoko believes Kenyans have learnt that they don’t gain anything by rioting and killing fellow Kenyans.
“The victims have never gotten redress. The perpetrators themselves, especially those at the lower level have not gained anything from the violence. A lot of Kenyans are still where they were, they have not seen a lot economic development,” she said.
Jaoko only wishes that Kenyans can individually think of what violence means to them.
“If Kenyans were to ask themselves, what actually does violence add to you as an individual, as a community and as a country? It does not matter who sits in State House if we do not have accountability mechanisms as opposed to asking is it my tribesman, is it my friend?”