By NGUNJIRI WAMBUGU
Last week President Uhuru Kenyatta’s ICC case was finally terminated. This is good news. However what is more important are the lessons we must learn from this experience, as a nation, about expecting foreign institutions to solve our problems.
First; the International Criminal Court is 100 percent about politics, not justice. Think about the fact that judges to this court are chosen through lobbying by member states at the Assembly of State Parties. This means that the people we assume are neutral umpires on matters of international law are in reality products of political negotiations, and easily accessible to those who wield the kind of political power that gets them their positions.
The result, as we have seen with Kenyatta’s case; is that as they ‘judge’ they keep an eye on the politics of each decision they make. Second; justice at the ICC is relative. Words like ‘admissibility’, ‘legal threshold’ and ‘the principal of complementarity’ mean different things when used in reference to Kenya, Sudan, Libya, Israel or Ukraine. The Prosecutor can therefore initiate investigations ‘proprio motu’ on Kenya’s 60-day 1000-lives-lost situation but not for Syria’s over-3-years over-1 million-dead-and-counting situation. Third; the ICC will chase after their ‘pound of flesh’ even where it is clear such pursuit can only result to a nation going into inter-ethnic strife post the court’s intervention.
Then consider what we have seen of Deputy President William Ruto’s case so far.
One; Prosecution witnesses have publicly accepted that the only reason they agreed to work with the prosecution was because they were promised financial payments and/or relocation to first world economies for themselves and their families; essentially telling us they were bribed by the prosecution to give evidence against the Deputy President. (The prosecutor has not refuted this fact, just tried to spin it away).
Two; Another group of prosecution witnesses have publicly admitted that they lied in their testimony and ironically, rather than strike out their testimony or even hold them liable for perjury; the court has insisted that they testify anyway; even using force to make them appear in court.
Three; the Prosecution has sought and received permission from the court to ‘re-characterize’ the charges against the defendants. The automatic result of this characterization is that the onus is now on the defendants to prove they are innocent of the charges against them; rather than for the prosecutor to prove they are guilty.
This is certainly not how we envisioned justice would look like when we opted to go to the ICC.
Ironically, despite the responsibilities (and authority) of his office and notwithstanding the contradictions above Ruto continues to voluntarily place himself under the jurisdiction of the court. The Deputy President has attended every session he has been required to attend without fail; fulfilled every requirement he has been asked to fulfil whenever he has been asked to do so; and at one point controversially broke ranks with his own government when the Kenyan State sought to defer the two situation cases and the Deputy President publicly declared that he does not want his case to be deferred.
I think Ruto has been operating on the basic assumption that an international justice process at the level of the ICC will be fair, transparent and about justice; and under such an environment he is sure he can successfully defend himself against the charges levelled against him.
Today we must all accept that the ICC is not a fair and just platform. Ruto and Sang will not get justice from this court; the same way Uhuru would not have gotten justice from this court. However we also cannot afford to have the ICC continue playing games with the remaining cases. Our national fabric is not fully recovered to allow it.
So what we went looking for from the ICC we must accept we will not get; and then do what we can for ourselves as a country. We must start by taking responsibility. When the Prosecutor re-characterized the charges against Ruto and Sang they were changed to suggest the two were ‘indirect perpetrators’ of the 2007/08 PEV violence; a charge that had also been used on Uhuru. This charge easily applies to all of us who were adult Kenyans at the time, based on how we conducted ourselves prior to the 2007 elections.
Uhuru and Ruto took responsibility and initiated a political settlement that guaranteed a peaceful 2013 election. The rest of us (Kenyans) now need to take responsibility and bring closure to the 2007 PEV aftermath. Let us fix whatever is still outstanding that can be fixed, and let us accept and move on from those things that happened then, that we cannot fix.
Finally as a Member State to ICC let us permanently withdraw the Ruto/Sang case from the court and ensure it never again affects our internal politics, as it has been doing.
(Wambugu is a Director of Change Associates, a political think-tank)