It is important to view the hullabaloo over the appointments of the Chief Justice, Attorney General and the Director of Public Prosecutions in view of the landmark resolution by the Africa Union supporting Kenya\’s case to defer the ICC process for at least 12 months.
Realising that their plot to use the ICC process to fix their political competitors in the 2012 General Elections is failing, some political players are now desperate to have their preferred protégés in charge of judicial processes in order to continue with their mission once the local process is started.
It is gratifying to note that Kenneth Marende, who every passing day looks more of presidential material than his cantankerous bosses in ODM, stopped the intended coup de grace in Parliament last week.
The post election violence in the Republic of Kenya must be understood in the context of widespread political rebellion and, therefore, both pursuing justice for victims and punishment for perpetrators of the violence must encompass innovative approaches at the national level that uphold constitutionalism and the rule of law, and will deliver a comprehensive closure to the problem.
One such intervention was the National Accord and Reconciliation Act, 2008, that ended the post election violence within the context of the sovereignty of the Kenyan people, and recommended reforms designed to democratise and strengthen the state\’s institutions of governance, and the rule of law.
Violations of human rights should not be tolerated anywhere, and those responsible for perpetuating such violations must be held accountable for their actions. No one can support or condone impunity, be it national or international. I am against both the impunity of national systems and that of unaccountable international organisations.
On the one hand, every State has a responsibility to protect its citizens from all violations of human rights, including war crimes, crimes against humanity, genocide, aggression, disease, ignorance, hunger, exploitation and humiliation. On the other hand, international organisations must enforce international humanitarian law universally not selectively.
The International Community, through the United Nations, has the complementary responsibility to help protect populations from violations of human rights globally, a functioning sovereign state, whose governance institutions conform to accepted standards and aspirations of a free and democratic society, is the custodian of the mechanisms that ensure the protection of the human rights of its citizens. It is, therefore, important to continue improving national judicial systems to ensure that justice is available to everyone.
Kenya\’s new Constitution promulgated on August 27, 2010, has reignited the spirit of hope and reaffirmed the people\’s aspirations. As a result, Kenya is undertaking far-reaching reforms in governance to establish the rule of law. There is increasing evidence that the culture of impunity will no longer be tolerated in Kenya.
For example, corruption cases hitherto considered untouchable are being prosecuted. Powerful individuals have been arraigned before magistrates on corruption charges. Several cabinet ministers and others have "stepped aside" from office to facilitate investigations into corruption and other abuse of office allegations, or to await determination of their cases by the courts.
Ongoing demands for an effective national judicial mechanism have emboldened the courts to assert their independence through various landmark rulings, and institutions such as the Kenya Anti Corruption Commission are also delivering on their mandate.
Given the important role played by national justice systems in maintaining law and order, and upholding human rights, the international community should help Kenyans fast track the ongoing reforms in their justice system and other organs of governance to be able to fully achieve justice under credible local institutions as a modern sovereign country.
These far reaching changes should not be disrupted by any external processes that don\’t offer permanent solutions. Even the ICC process must submit to the Constitution of Kenya 2010, and strictly adhere to the principles espoused in the Rome Statute, particularly the recognition in the Preamble\’s paragraphs 6 and 10, and in Article 1, that "it is the duty of every state to exercise its criminal jurisdiction over those responsible for international crimes" and "the International Criminal Court… shall be complimentary to national criminal jurisdictions."
Though there is need for an international mechanism to uphold human rights, it can only succeed if the law is universal and applied effectively within limited time spans, and the authority applying the law is credible by being manned by personnel that is both competent and apolitical in its judicial jurisdiction.
The ICC is an impediment to the universal enforcement of international humanitarian law for various reasons. The court has a poor track record of zero determination of any of the cases before it that have cost billions of dollars and taken years with no signs of their being resolved any time soon, such as Thomas Lubanga Dyilo (2006), Germain Katanga and Mathieu Ngujolo Chui (2007), and Jean-Pierre Bemba (2008).
The Court is now widely perceived as a political court targeting Africans and African states in spite of the gross violations of human rights globally. Serious questions that have been raised about the competence and integrity of the court\’s personnel, and the soundness of its processes for example in the Lubanga case where the Prosecutor withheld crucial exculpatory evidence but the ICC judges have refused to acquit the accused to secure his rights to a fair trial.
Political crises such as the one in Kenya require a proper sequencing of peace and justice, as well as the appropriate restitution for victims, and the punishment of all perpetrators. This is missing in the ICC process that does not offer any restitution to the victims, and simply targets a representative sample of suspected perpetrators for retributive justice. Selective justice is not justice and it entrenches impunity by putting some individuals outside the reach of the law. We cannot fight impunity by endorsing impunity!
Kenya ought to borrow from the example of how Britain recently dealt with the Irish Republican Army\’s 30-year armed uprising in Northern Ireland and the resultant war crimes and crimes against humanity that were committed by both sides of the rebellion, through restorative justice and reconciliation.
Article 52 of Chapter Eight of the UN Charter stipulates the following:
1. Nothing in the present Charter precludes the existence of regional arrangements or agencies for dealing with such matters relating to the maintenance of international peace and security as are appropriate for regional action, provided that such arrangements or agencies and their activities are consistent with the Purposes and Principles of the United Nations.
2. The Members of the United Nations entering into such arrangements or constituting such agencies shall make every effort to achieve pacific settlement of local disputes through such regional arrangements or by such regional agencies before referring them to the Security Council.
3. The Security Council shall encourage the development of pacific settlement of local disputes through such regional arrangements or by such regional agencies either on the initiative of the states concerned or by reference from the Security Council.
In this regard, Kenya could also resort to regional organisations, such as the African Union, to find solutions for its problems.
It is against this backdrop that I fully support the decision by the African Peace and Security Council of the African Union that the Kenyan case before the International Criminal Court should be placed before the United Nations Security Council for deferral.
Unlike in the case of the Sudan, where the AU\’s request for deferral was treated with utter disdain and has not received any response to date, the UN Security Council should expeditiously grant the Kenyan deferral when the request is made. That will give the sovereign Kenyan people the time required to establish credible and permanent local mechanisms of addressing impunity and other challenges to the rule of law.
The author is the spokesman of the Party for National Unity (PNU). The views expressed herein are his own and do not represent the position of the Party for National Unity – firstname.lastname@example.org