It is very easy to misread and or misjudge the concerted efforts of Kalonzo Musyoka over the past two weeks. The Vice President has been all over the continent lobbying African countries to support Kenya\’s establishment of a local judicial process to try post-election violence suspects.
It is very easy to do so when one forgets the very intentions behind the creation of the ICC and also when one loses sight of the key questions of sovereignty that automatically rise from an ICC prosecution.
The Vice President has severally raised these points and they remain valid questions that we must answer as a nation vis-à-vis our relationship with the ICC.
Kenya is a sovereign state with (new) credible institutions and an ICC member in good standing.
The ICC is important in terms of securing an enduring respect for human rights across the globe. The mere existence of the court makes dictators and human rights abusers to think twice about their actions that is a very good thing.
Because of its global status the ICC is by design secondary to local judicial processes. The ICC was designed to be and still should be a court of last resort; a complimentary process to state judicial mechanisms. The ICC was never meant to be the primary judicial process and this is why Kenya\’s case is an oddity for the court.
The Rome statute itself places emphasis on national jurisprudence as opposed to the involvement of the court. The court provides for the deferral of cases filed before it in favour of local trials. This is all the Vice President is trying to accomplish – the deferral of Kenya\’s cases at the ICC in favour of local trials. Let it be abundantly clear that Kenya is not seeking a withdrawal.
It is extremely easy to misread the efforts at deferral as an attempt to escape justice or a worse an attempt to protect the Ocampo Six from prosecution. It is neither of those and in truth the Vice President has never presented them as such nor does he think in those terms.
A court of last resort is exactly that – a court of last resort: a secondary mechanism that is deployed when the sovereign nation concerned is unwilling and unable to prosecute the crimes in question.
The principals and the Cabinet have on many occasions expressed their desire for a local process and have attempted to start one also severally.
Secondly and more importantly, Kenya is not unable to try suspects of post election violence because that would automatically place Kenya in the category of failed states and despite our trials and shortcomings we are definitely not a failed state.
That is what it means to allow the ICC process to continue: blanket disrespect for our nation, government and our institutions. To allow the ICC to go right over the head of our judiciary is to equal to ceding sovereignty. That was never the way the ICC was meant to operate.
We have spent the better part of two decades in the quest for a new supreme law. The journey was long and arduous but in August this year we did it – we ratified a new constitution for our country.
A key element of the push for a new constitution was the need for a better judiciary and the new constitution made radical changes to the natures, form and set up of our judiciary.
This is why in a matter of weeks Kenya shall have a new Chief Justice and not so long after that a new Attorney General as well as a Director of Public Prosecutions. The filling of these posts will officially mark the birth of a new judiciary and a new chapter in the dispensation of justice in Kenya.
Do these look like the actions of an unwilling and or unable state?
Wait, there is more.
There will also be a rigorous vetting of judges and magistrates to ensure integrity and independence of the new judicial order. These are vital and comprehensive reforms that will revolutionise the delivery of justice.
Are we to do all this for naught? What is the purpose of all these reforms we have undertaken and those we are currently undertaking if we are going to cart Kenyans to face trial in a foreign land, albeit a court which Kenya has endorsed.
Indeed one can rightly argue that the ICC process takes Kenya back significantly socially and legally because of the time and effort it has taken to undertake the necessary reforms to its institutions.
If we are not going to have faith in our institutions when they are freshly minted when are we going to trust them? Is the international community after decades of championing reform going to pour cold water on the grand efforts of the people of Kenya? Are our friends going to let an international organ ride roughshod over a pivotal national institution as our judiciary and stand by silently?
These are some of the very weighty matters and questions that we as Kenyans need to reflect upon and so do our friends and neighbours across the continent of Africa and across the World.
Kenya is ready to play its rightful role with regard to the prosecution of post election violence suspects. The reforms already achieved and those currently underway speak loudly and clearly to the Kenyan resolve of delivering justice for post election violence suspects – in Kenya.
This resolve at least means Kenya should be given a chance to prove it is serious with local prosecutions. The contrary will mean that the international community still believes that Kenya clearly means that Kenya is unwilling or unable to prosecute cases emanating from the post election period.
(The author is the spokesman of the Party for National Unity. The views expressed here do not represent the position of PNU. Follow him at https://twitter.com/HonMosesKuria