Kenya’s withdrawal from ICC long overdue



Kenya is a sovereign State; this is one of the key contents provided in the preamble of our Supreme Law.

This is a critical issue that every patriotic Kenyan must jealously safeguard. To regain our national Independence from colonialist in 1963, our forefathers went to the forest to fight for our nationality and freedom. Thousands were killed, tortured, maimed raped and subjected to slavery, anguish and untold slavery. The freedoms we enjoy today cannot, therefore, be underestimated in honour of the sacrifice of our fallen heroes and heroines.

In August 2010, when the current constitutional order was promulgated, it brought along a raft of changes to strengthen our national institutions including the entire justice system.

This development has injected new breath in our public institutions thereby restoring the eroded public confidence. Now, we can proudly say, as a country, we have a credible and autonomous judiciary and other constitutionally-mandated structures of government firmly anchored by the Constitution.

During the passage of this order, Kenyans, without coercion were cognizant of the overwhelming need to protect their national sovereignty from being subverted. Sadly, in 2010, the immediate former Prosecutor of the ICC Luis Moreno-Ocampo announced that he was seeking summonses for six people: President Uhuru Kenyatta, Deputy President William Ruto, the then Education Minister, former Industrialization Minister Henry Kosgey, former Cabinet Secretary Francis Muthaura, radio journalist Joshua Arap sang and former police commissioner Mohamed Hussein Ali – all accused of crimes against humanity.

The six suspects, known colloquially as the ‘Ocampo Six’ were indicted by the ICC’s Pre-Trial Chamber II on 8 March 2011 and summoned to appear before the court.

On 23 January 2012, the Pre-Trial Chamber II confirmed the charges against Kenyatta, Muthaura, Ruto, and Sang and declined to confirm the charges against Ali and Kosgey.

Thereafter, the case against Muthaura collapsed for lack of substantial evidence.

Today, the list of witnesses that ICC prosecutor Fatou Bensouda was relying on, is crumbling fast with scores of witnesses recanting their evidence for varied reasons.

The cardinal factor at hand is whether we as a nation expect justice will be served given that majority of the witnesses whom the prosecutor relied on to confirm seemingly flimsy charges against our leaders have recanted their testimony as false.

In my opinion, this is one of the serious indictments of the prosecutor’s office of the International Criminal Court showing how shallow and quite possibly, shoddy investigations were carried out.

It is on this basis that Kenya, a sovereign state of 40 million people has spoken through their democratically elected leaders to withdraw as signatories to the Rome Statute.

During the recent African Union summit on May 26-27, the African Union’s Assembly adopted a decision requesting the Court refer back to Kenya the cases against President Kenyatta and Ruto.

The Assembly was categorical that judicial practice must be conducted in a transparent and fair manner, in order to avoid any perception of double standard, in conformity with the principles of international law.

This was just the latest in a series of decisions since 2008 in which the AU expressed its displeasure with the ICC. The chairperson of the Assembly, Ethiopia Prime Minister Hailemariam Desalegn said African leaders came to a consensus that the ICC process conducted in Africa is flawed.

The purpose and principle of ICC was to avoid any kind of impunity but now the process has degenerated to some kind of race-hunting rather than fight impunity.

In 2009, Benin’s President Boni Yayi expressed serious concerns that the Netherlands-based court is “chasing Africa”. Claims of inefficiency and unwarranted targeting of African leaders are some of the claims raised internationally against ICC since its inception in July 2002. If this is anything to go by, ICC has depicted itself as a Western court out to try African leaders.

Kenya is a stable sovereign State that has retained stability as manifested in the just concluded March 4 General Election.

If indeed the ICC is interested in safeguarding justice, why has it turned a blind eye to countries operating in anarchy, massacre of civilians and other serious crimes all over the world? Why have they technically limited their preoccupation to Africa? These are fundamental questions that need interrogation.

In any criminal justice system, unless other forces are at play, political or otherwise, quest for justice is the primary objective rather than selective administration of justice. Obviously, for a court with a mandate to investigate and prosecute genocide, crimes against humanity and war crimes, the political stakes are high. However, the objective of such an important institution should not appear to push an agenda for some powerful sates.

Kenya’s initial steps to withdraw from the Rome Statute and the solid backing of other African states should inform serious engagement within the African continent to form and finance an African court where African affairs can be handled openly, and without prejudice.

Kenya needs home-grown solutions that are genuinely domesticated for betterment of the country, region and African continent as a whole.

(The writer is the TNA Director of Communications. Twitter @MachelWaikenda)

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