Kenya’s withdrawal from ICC long overdue

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BY MACHEL WAIKENDA

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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  • sovereignty of State ends when innocent people are massacared, wake up to globalization. I cant just sleep when my neighbor kills his own children, say its his children

    • sovereignty of State ends when innocent people are massacared, wake up to globalization. I cant just sleep when my neighbor kills his own children, and say its his children. To the best of your knowledge, were people killed or not killed? Sovereignty is not the issue for now. INNOCENT LIVES WERE TAKEN AWAY. Talk about what happened, not the technicality of sovereigny, that we know and accept, BUT it is not limitless

      • kiptrying

        your comment betrays your shallow understanding of neo-geo-politics or you have a manifested political bigotry . I bet you cann’t answer my three questions
        >why is ICC indiffrent on the suffering of the Iraq, Kurdish, Tamil, Egyptians whose direct co-perpetrator is the West and especially US?
        >Why are most western nation not party to the Rome statute?
        >What investigation did the ICC do in kenya or was it reliance on hearsay from West-funded NGO -with vested interest in Kenyan politics?
        sovereignity=self dignity

        • Guest

          when it come to ICC in Kenya, we have 4 categories of people;
          (i) those who genuinely ICC can bring justice and closure to the victims;
          (ii) those who naively believe in ICC for the sake of ICC, they forget that had the motion of establishing a local tribunal (which by the way as records show Uhuru & Ruto voted in favour), there would have been no envelop delivered to Hague and tallking of envelop it would be interesting to know the methodology used to reduce the number to 6 and suddenly vilify the 3 remaining
          (iii) those who see ICC as a sure route to Statehouse
          (iv) the mistaken ones who think simply because ICC endorses the Court, then it is good and don’t realise as Bill Clinto rightfully said, “ICC is a political court and any country should think hard before ratifying the Statute”
          YOU DONT NEED ICC TO GUARANTEE HUMAN LIFE & FREEDOM. ICC does not equal civility

          • kiptrying

            The difference of race is one of the reasons why I fear war may always exist; because race implies difference, difference implies superiority, and superiority leads to predominance.

            No white/hispanic/asian man will ever be arraigned in this court only Black hides
            AFRICA NEED TO ARISE AND SORT ITS OWN ISSUES!!

          • marloow

            If you are going to rant…at least get the basic facts of your rant right..

            Ever heard of Slobodan Milosovic? How about Radovan Karadzic…or Ratko Mladic…because if you knew who they were, you would know that they are not blacks…

          • Duncan Muchina

            True. But what does ICC do about Tibet? Chinese oppression takes place every day with immolation being the only answer by some priests. You could argue that China is no signatory to Rome Statute but so is Sudan where ICC investigated Darfur atrocities and indicted Bashir for the crimes! Why not do the same for our brothers in Tibet? Some folks call this type of courts Kangaroo but that’s because of the mentality at play at the time of coining the word. I suggest we call such courts, “Swala” courts. Hopping justice.

          • marloow

            Great points..and I do not disagree with you..Kenya just got caught in the realities of realpolitik…

            Might is right…Power comes through the barrel of a gun etc.

            The fact is: Kenya has strategic importance to the west just as Israel has does to US in the Mid-East…Syria to Russia etc. The west – US, UK, EU and Canada – was not going to allow it to devolve into another Rwanda….and since its (don’t be vague…) parliament refused to set up local tribunals to deal with the perpetrators of the PEV-2007….the ICC was summoned..

            Life is indeed not fair..is it?

          • Duncan Muchina

            Yeah….the whole vague scenario unfolding now. That’s why foresight is good. Someone ought to have seen the whole thing before….is it something African…not to see far?..Look at Bensouda…she looks cornered but is still pressing on!

          • marloow

            I think the hubris of our leaders…courtesy of a lifetime of impunity finally caught up with them…
            My hunch is one of the principals is in trouble…

          • Duncan Muchina

            If burden of proof will succeed….reasonable doubt is very easy to create especially going by prevailing circumstances……judges are also divided judging by how they voted the other day….

          • marloow

            The burden of proof will be sustained…..on one of the 2 principals.

            This case has as much to do with symbolism…sending a message to others, African leaders in particular, that the era of impunity is over as it does with the legalistic maneuvers.

            The judges are divided….but they are also cognizant of their role…their charge.

            It does not help that the chief prosecutor is of African descent….Gambian Fatou Bensouda…as is the person who gave Kenya the chance to establish credible local mechanisms to handle the crimes…Kofi Annan..

            I will be very surprised if both principals escape unscathed.

          • Kwessi Pratt

            That was before the show. Just wait untill everything starts moving. You will be surprised by how innocent people go to jail. Mark my words brother. We are only lying to ourselves to please our inner self. This is too grave!!!!

          • Duncan Muchina

            …and headed for the cemetery!

          • Kwessi Pratt

            If you say so, but reality seems to point differently!

          • kiptrying

            American interest blah blah..and you are proud of your big brother.. that is pathetic- remember the worst solitude is to be destitute of sincere friendship and the Egyptians can attest to this here and now

          • marloow

            I am not sure what you mean…but the reality is that countries…America…including Kenya have interests…which they pursue..diplomatically and if necessary, militarily. Tis why USA invaded Iraq….and Kenya invaded Somalia. The Egyptian knew/know that. As for being “proud of my big brother…not sure what you mean.

            Kenya can withdraw from the ICC….tis it’s sovereign right..But the reality is that the world powers – USA, Russia etc. drive world events and Kenya is just a pawn in that game of chess.

  • Chris Irera

    …sovereignty ends the moment leaders who are supposed to be pillars of peace start massacring own people because of tribe…yes such a country whose law and constitution favours the high and the mighty…ICC is a good option…..Justice has to be served form the plates of Hague…in this nation of man eaters ….i see the suspects and i remember 2007/8….over a thousand people lost their lives they are souls…..our leaders too are souls and before God we are all equal for grave equates us all. All of us will be ants meal some day…there is nothing special by being president or deputy…if you participate in mass murder then… let process of justice take precedent…ICC is a very good deterrent to our otherwise very greedy and narcissistic leaders..AND THEY ARE SUSPECTS

  • Bensouda

    Mr. TNA Director nobody in this world has a sovereign right to murder, rape and maim Kenyans and claim they are our fellow Kenyans so it is OK for them to kill us. Let’s get real for a second. African thugs called leaders have no right to kill other Africans just because they are fellow Africans. This obscenity must end. You tell us how many killers who slaughtered 1,300 Kenyans in 2008 have been even investigated leave alone charged in court with a crime. The new constitution which you wail about was passed three years ago. What has the Kenyan government done with it to bring justice to the PEV victims? The constitution cannot walk around and investigate crimes and prosecute killers. We have to do that as a country and we have failed to do so. Why? Because the alleged killers are in charge. And we cry about the ICC? Accept reality and move on with the ICC.

    • kiptrying

      only your spiritual american gods have aright to kill iraqis, libyans and arm rebels in sovereign states. your low self esteem make you think only white people can have solutions to your problems.,where is your self-dignity big head?

    • Irungu wa Chomba

      Moreno ocampo or bensouda so you call yourself,just mention by the names the one you say are killers in charge.before we got to the truth of the matter not only in Kenya,my friend we are all dead.sasa nani wakuaminika isipokuwa ata wewe unasema hivyo coz wewe si fun wa either of the accused.i love what kiptrying is tellin you.sasa eti mnaenda Syria.

  • Qwani

    I agree we must withdraw from the ICC. What the ICC considers as justice is that when they are called to solve a problem, they hand pick anyone and then accuse that person for causing the problem. Today it is UhuRuto tomorrow it could be any one of us. We can’t have a judicial system as unjust as that reigning over us. That I refuse completely.

  • patricia

    i totally agree with you.We are a sovereign state.With current proceedings and the mention of Gladwell Otieno and the witnesses not turning up it leaves alot to be desired.Ruto did not have a party then.Why is the then party leader not charged?Who is behind Gladwells curtains?

  • patricia

    PEOPLE LOST LIVES THAT I BELIEVE.BUT WHOEVER CAUSED THATIS FREE WHILE INNOCENT PEOPLE ARE TAKING HIS BLAME…

  • sam

    I recall there being a a list of more than these….what happened to those?

  • xxxx xxxx

    The court is indeed political. It was primarily set up to fight impunity. And kenya joined it with eyes wide open knowing the nature of the court fully well. What u can take to the bank is that one of these people people will either be jailed or become a fugitive from justice. Ofcourse there may be appeals and so on. For this case to have reached this stage inspite of the evidence is an omen/ signal that should not be ignored. Someone will be found guilty. Or will become a fugitive by absconding. This court was set up to jail politicians who screw up. Stat tuned.

    • Kwessi Pratt

      We all sing its political but we dont want to see the clear signs. I guess, thats why we are eager to tell the local constituency the cases are going to collapse. SOMEBODY IS GOING TO JAIL! ALL THOSE WITNESSES AND MASSIVE RESOURCES WONT BE LEFT TO GO WASTE! ICC is political as most national courts. It would therefore be a huge mistake to under-estimate forces behind these cases.

  • mwangi wa muthoni

    Today i have something disturbing me seriously. Am not a lawyer, but should we take a legal case against any witness who fail to appear in the court of law despite being assured of their security. My late secondary school headmaster told me once, “wrong/ bad thing continues when good people see and do nothing.” All the witnesses of the original Ocampo six must be held to account of what really happened. The truth must be KNOWN!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

  • Kwessi Pratt

    Kenya is better off as a member of ICC. We might technically withdraw from ICC but no one is going to leave us alone. Its a lie to say being a none member would serve any purpose. Furthermore, if you start butchuring each other like 2007/8, big brothers would move in whether we like it or not. Alternatively, a regime change would be effected. So this withdrawal nonsense is no here or there. I guess, only tribalism is failing us!!!!

  • knightamani

    this writing just demosntrates your ignorance about the history, role, mandate, composition and the workings of ICC. Rudi shule usome then come back and right some sense, not this political immaturity.

    • Kwessi Pratt

      He is just displaying is tribal loyalty. Only that mischief has been the wheel behind that loyalty!!!!

  • preeth

    During moi’s time the propaganda was atleast hilarious like “baba na Mama”..the current propaganda is just sad n dark…

  • Tribeless Kenyan

    Kenya was given an opportunity to establish a local tribunal to find justice for the PEV victims. After jostling, political manipulation, an ill-informed citizenry and massive resources….this was turned down. Then the vogue thing was to “Lets not be vague lets go to Hague”. At that time, was Kenya not a sovereign nation? At that time, the constitution was at play. The Rome Statute was not part of the constitution? Yes, Kenyans voted for the current constitution. Yes, Kenyans want to see strong non-corrupt government structures and institutions. And yet, political elite continues to manipulate the law and the same constitution that they swore to defend.
    Please do not say that 40M Kenyans agreed with their “elected leaders” to withdraw. Kindly desist from generalisation that all Kenyans approve. How many MPs were in chambers at the time of the motion? Yes, Kenya is a sovereign state. Yes, neo-colonialism may exist. Yes, we should not spit on the graves of all those who fought for freedom, justice and equality in this country…the political elite and status quo took itself to The Hague. For once, can they live by the words they uttered “Lets not be vague lets go to Hague” – for once can the man up and live up to their declarations! This is about justice. This is about peace, healing, reparations and for the lives lost in 2007/8.

  • S Odhiambo

    You’re implying that the ICC and Ocampo have nothing better to do than to engage in “race-hunting” and “chasing Africa”.

    Kenya is far from a functioning and stable state – it failed to dispense justice after the 2007/08 violence, and now those accused of crimes against humanity hold the two highest public offices here. It’s an embarrassment.

    Two wrongs don’t make a right. Yes, there are many other parts of the world where justice also needs to be dispensed, but this is an egregious case in a country with a self-perception of being civilized.

    And when supposedly educated and sophisticated Kenyans such as yourself take such positions, the very core of the integrity and/or competence of the ruling elite of this country comes into serious question.

    There’s no hope for this failed state, unless you grow some integrity and sense. Otherwise, Kenya will just muddle through mediocrity.

  • tubmandoe

    waikenda(TNA) hmmmmmm…….why am i not suprised?

  • nowhereinafrica07

    Idiot!

  • Toka Hapa

    I would like to side with you but NO! We are sovereign, that does not give any tribalistic politician to start butchering other kenyans. ICC is political court formed to solve political problems. Mind you Mr.TNA, this was, and still is a hell of a problem. Justice must prevail for the victims who have nothing to pay you spread propaganda.

  • JusticeAboveAll

    You, sir … are a twat, who deserves to be lashed in public.

    • Toka Hapa

      The best comment I have seen in a long time. “You, sir, deserve two wives and 100 bulls. Live long and prosper for making my day.

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