ICC: Fighting impunity must not begin and end in Africa


In word and in deed, Kenyans have since 2002, expressed a desire to see and do things differently, and for the better. They took to the streets when the government played stone-deaf to their pleas for a just, tolerant, all-inclusive and more equitable society. All levels of society took time to lend a voice to forging a better system of governance, including throwing out the Independence Constitution and writing a fresh one. Efforts, battles and sacrifices on this front culminated in a new Constitution in 2010.

Fast-forward to 2013 and the country is celebrating half a century of self-rule. In the letter and spirit of unity, Kenyans should commit themselves to defending the sovereignty our forefathers fought so hard for. There is every reason to jealously guard the pillars of our nation forged and consolidated by three former heads of state and every Kenyan.

President Uhuru Kenyatta can only strengthen and further this national cause. Together with his deputy William Ruto, they have outlined the Jubilee administration’s agenda to unite all communities, races and religions under one indomitable Kenyan family with a common vision and purpose. But even as we wake up to a momentous Jubilee anniversary, to extol the heroic deeds of thousands of Kenyans who dared to speak truth to colonial power, those who paid the ultimate price for our freedom, we find the country shackled by yet another hurdle at the International Criminal Court (ICC).

Our year of Jubilee happens to be the same year the ICC opened its first trial of a sitting president and his deputy, on charges of crimes against humanity. The trial continues daily despite prosecution demonstrating ineptitude ranging from witnesses recanting evidence to flimsy investigations being put forth in open court.

Time and again President Kenyatta and the Deputy President have publicly declared commitment to co-operate with the ICC based on mutual respect. In addition, pleas for excusal from physical presence at The Hague-based court as the cases progress to allow them execute their constitutional duties as the democratically elected leaders of a sovereign country further demonstrate their commitment to co-operation.

When the ICC was founded eleven years ago, the fight against impunity was a key objective. The ICC has jurisdiction in 122 countries, including 34 in Africa. For the last one decade of it’s being, what is perceived as undue concentration against African leaders has been apparent.

This featured prominently at the recent African Union Special Summit in Addis Ababa threatening the inevitable, to severely strain the court’s relations with the AU. In my view, the one-decade chronicle of ICC’s work and concentration in Africa is alarming. Just like many African countries, there are member states and signatories to the Rome Statute contemplating exit from ICC if the vigour and resolve to reprimand and appear to arm twist Africa is anything to go by.

An unequivocal declaration of displeasure in ICC’s conduct was made by African Heads of State, who have formally written to the UN Security Council seeking deferral of the Kenyan cases at the ICC facing President Kenyatta and his deputy to allow them to fulfil their constitutional responsibilities. As law scholars would opine, in every judicial process, justice must not only be done but must also be seen to be done.

On March 4, President Kenyatta and his deputy were democratically elected into office. Through the oath of allegiance, the institution of the presidency swore to preserve, protect and defend the Constitution of Kenya.

President Kenyatta is mandated by the Constitution to discharge his duties, even if that means he should not physically attend ICC trials.

Unfortunately, some people want Kenya, a stable country with a new Constitution complete with a working judicial system, to be lumped together with failed states. Even for purely academic purposes, how does Kenya compare in terms of respect to human rights with countries like Syria, Iraq, Venezuela, Palestine, Colombia, or Afghanistan? Why hasn’t the ICC prosecutor filed cases against leaders in these countries?

How come the ICC’s decade-long global purview and “map of the world” has focused on the DRC, Uganda, Central African Republic, Darfur/Sudan, Libya, Ivory Coast, Kenya and Mali? Would African leaders be wrong to see a race-hunt rather than a vigorous fight against impunity?

(The writer is a political and communications consultant. Follow him on Twitter @MachelWaikenda)

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