How about a Kenyan referendum on the ICC?



There is no refuting the fact that Kenya is where we are today because of the 2007/08 post election violence. Support for institutional reforms as well as passage of the new constitution were all driven directly or indirectly by this moment of shame. The ICC – a primary result of the post election violence – is also why Kenya underwent such a peaceful election this year.

However it is time to accept that we are at the tipping point and that beyond here, the lessons of the PEV that have led to positive growth can force negative retrogression. I will not repeat myself so let us look at how we got here.

First, I have always suspected that the 2007/08 PEV led to a decision at international level that Kenya was too important to continue in a situation where nearly every election had even more violence than the last, to the extent that it was possible to project a point where an election would lead to national collapse. I am convinced that it was determined that this situation must stop, and the solution was to ensure that for the first time in the history of election-related violence, someone would be held accountable for the atrocities of the 2007 elections. This would also send a message to other African states with such ‘habits’.

The process that was initiated culminated in the ‘Waki’ Report. The then President Mwai Kibaki and Prime Minister Odinga then underwent considerable international pressure to start a local process to handle those suspected as responsible for the violence, or face the indignity of having their country, and maybe even they themselves, at the International Criminal Court. The two principals tried everything they could to make this happen despite their reservations, but their own political establishments had not realized the gravity of the situation and thought it was a bluff; even coming up with funny slogans about it.

Ordinary Kenyans then became quite upset that politicians seemed to be dancing on the graves of the Kenyans who had died over the years, as these politicians pursued their ambitions. A cry then seemed to go out in every village across the country that politicians must learn that violence cannot continue to be a strategy for winning elections, and the ICC became the way that this lesson would be taught.

Kofi Annan then called the politicians bluff and handed over the ‘Waki’ report to the Office of the Prosecutor at the International Criminal Court; one Mr Luis Moreno-Ocampo. Mr Ocampo got UN authority for the court to get into the Kenyan situation and used this report to start his investigations, which enabled him to move remarkably fast. Before we knew it, six Kenyans had been charged at the ICC for crimes against humanity. The ICC had unleashed the ‘dog’ on our politicians and Kenyans were ecstatic that impunity was now been tackled.

The Kenyan political establishment panicked and started back-peddling furiously on nearly everything they had said earlier. All of a sudden they believed in a local process and parliamentarians quickly mobilised to pull Kenya out of the Rome Statute; 1.4 million Kenyans put a stop to that in a petition. A desperate diplomatic offensive was then initiated to stop the ICC and allow Kenya to set up a local process; this also collapsed because it was clear Kenyans did not support it.

The political establishment had been beaten in its own game; and then the coin dropped. They realised that they were not going to win the war against the ICC process by fighting it, because this suggested they did not want to stop election-related violence. They then went out to prove that they had learnt their lesson, and were committed to violence-free politics such that Kenya would never need ICC again.

The political leadership of the two tribes that had been at the centre of political violence over the decades got into a political pact, and against all odds went ahead to win the 2013 election with a landslide. The election was also one of the more peaceful ones in Kenya’s history.

Now we need to ‘leash the dog’. Most Kenyans have supported the ICC process because it seemed able to contain the Kenyan politician and the last election proved that we achieved that. To continue to go after politicians who have literally surrendered leads to the loss of pro-ICC goodwill. At this rate it will not matter what the courts decide; Kenyans will not accept it and the lessons sought, will have been lost. Lack of this goodwill also means the ICC cases that depend on Kenyan witnesses could crumble; showing the ‘dog’ as harmless. This does not help, because should there ever be a next time (God forbid), the ICC might not be enough to stop the violence. Worst case scenario; with all these talk of referendum maybe we could also have one on what Kenyans think.

(Wambugu is the Executive Director of Change Associates Trust)

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