Anti ICC campaign is futile and misguided


The disjointed, contradictory and legally unsound initiatives that that the PNU part of the government has taken with regard to the International Criminal Court have made our country the laughing stock of the world.

These efforts have also trivialised one of the greatest challenges we as Kenyans face today, which is to create genuine reconciliation by providing justice for the unspeakable crimes that were committed in the violence that followed the rigged election outcome.

Instead of much-needed reconciliation, the efforts to subvert the process of justice and the politicisation and open ethnicisation of the anti-ICC campaign are opening deep fissures among sections of the Kenyan public. This does not bode well for the peace and cooperation that is urgently needed to implement our new Constitution and complete the reforms that alone will bring us all together in a prospering nation.

The epitome of the feeble and misguided campaign to avoid doing justice for the crimes related to post-election violence came on Wednesday, right after Vice President Kalonzo Musyoka\’s plea for deferral was rebuffed in meetings with UN Secretary General Ban Ki Moon and also United States Ambassador to the United Nations Susan Rice. At almost the same moment, the ICC judges issued summons against the Ocampo 6. 

In response to all this, the PNU wing of the government immediately launched yet another ploy to subvert the trials, by challenging  the ICC on the grounds of the "inadmissibility" of the case!

So after months of high-profile shuttle "diplomacy" to convince the international community to defer the cases against the Ocampo 6 for a year – a plea which recognised that the ICC was legitimately involved in the matter – we are now claiming that the ICC has no jurisdiction! How can we ask the Security Council one day that we want to defer the ICC cases for one year, and the very next day claim that the ICC has no jurisdiction over the cases?

In any event, the ICC statutes require that any admissibility "challenge be based on actual national judicial proceedings and prosecutions of the same persons in the same cases." Since this is patently not the case, why even begin on another hazardous and expensive journey that has no chance of succeeding?  This is sheer legal idiocy. The world knows that we have undertaken no investigations whatsoever to determine the culpability of those who organised the deaths of so many Kenyans.

The inadmissibility argument also sharply contradicts what Kenyans have been told are the reasons for the deferral campaign. How can the government seek to have the proceedings deferred under the pretext that it is willing and capable of trying the suspects, when at the same time the government argues that the suspects have no case to answer? The Ocampo 6 are Kenyans, deemed innocent at this moment, and we wish for them a completely free and independent determination of the charges.

In the meantime, undeterred by his failed bid in the high-level United Nations meetings,  Vice President Kalonzo Musyoka went to Washington to see the US Deputy Secretary of State, Mr. James Steinberg, pleading – unsuccessfully again – for a deferral of the ICC cases. In a clear expression of not just disagreement but deep exasperation, a senior State Department official right after that meeting issued a stinging rebuke of the anti-deferral campaign. In effect, the official agreed that the Six should not be presumed guilty until the ICC judicial process is complete. He said the judicial process is itself more important for peace and stability in Kenya than the procrastination of PNU.

We have clearly alienated our international partners with our constantly shifting positions on how we can provide justice to the victims of post election violence. We have repeatedly given solemn commitment to the ICC – and therefore the international community that the ICC represents – to cooperate fully with the Court. But at every turn, we have tried to undercut the court’s work. This campaign is clearly being seen internationally as an attempt to avoid doing justice for the crimes and continue our long history of impunity.

There are other major issues with the approach to the ICC. There is a Cabinet Committee which was formed for this purpose but only its PNU members met to decide on the admissibility argument. This pattern of exclusion of the ODM wing of government has meant that any formal approach to the UN Security Council was doomed from the outset. In addition, full government engagement would have meant that the issue of prosecutions would have been handled to the satisfaction of both Kenyans and the international community.

We have had many ups and downs in our history, but Kenya has somehow managed to always recover and maintain the respect of the world. The one exception was the deeply flawed December 2007 election and subsequent mass killings that took place. These left an indelible stain on our good name and that stain will only be removed once we show to the world that we will find justice for the victims of crimes against humanity and can conduct free and fair elections next year.

Kenya needs to begin to redeem itself from accusations that we are trying to cover up massive crimes against humanity. We must recommit ourselves to the ICC process since we don’t have any semblance of our own criminal justice mechanisms to deal with those major crimes.

The ODM is committed to ensure that justice is done to the victims of post-election violence.

(Prof Peter Anyang Nyongo is the Secretary General, Orange Democratic Movement)

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